[Federal Register Volume 80, Number 213 (Wednesday, November 4, 2015)]
[Proposed Rules]
[Pages 68268-68274]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28110]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 80, No. 213 / Wednesday, November 4, 2015 / 
Proposed Rules  

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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 170 and 171

[NRC-2008-0664]
RIN 3150-AI54


Variable Annual Fee Structure for Small Modular Reactors

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing to 
amend its licensing, inspection, and annual fee regulations to 
establish a variable annual fee structure for light-water small modular 
reactors (SMR). Under the proposed variable annual fee structure, an 
SMR's annual fee would be calculated as a function of its licensed 
thermal power rating. This proposed fee methodology complies with the 
Omnibus Budget Reconciliation Act of 1990, as amended (OBRA-90). The 
NRC will hold a public meeting to promote full understanding of the 
proposed rule and to facilitate public comments.

DATES: Submit comments by December 4, 2015. Comments received after 
this date will be considered if it is practicable to do so, but the NRC 
is able to ensure consideration only for comments received on or before 
this date. For additional information about the public meeting, see 
Section XII, ``Public Meeting,'' of this document.

ADDRESSES: You may submit comments by any of the following methods 
(unless this document describes a different method for submitting 
comments on a specific subject):
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2008-0664. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions contact 
the individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     Email comments to: [email protected]. If you do 
not receive an automatic email reply confirming receipt, then contact 
us at 301-415-1677.
     Fax comments to: Secretary, U.S. Nuclear Regulatory 
Commission at 301-415-1101.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff.
     Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal 
workdays; telephone: 301-415-1677. For additional direction on 
obtaining information and submitting comments, see ``Obtaining 
Information and Submitting Comments'' in the SUPPLEMENTARY INFORMATION 
section of this document.

FOR FURTHER INFORMATION CONTACT: Arlette Howard, Office of the Chief 
Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001, telephone: 301-415-1481, email: [email protected].

SUPPLEMENTARY INFORMATION: 

Executive Summary

    The NRC anticipates that it will soon receive license applications 
for light-water SMRs. In fiscal year (FY) 2008, the NRC staff 
determined that the annual fee structure for part 171 of title 10 of 
the Code of Federal Regulations (10 CFR) fees, which was established in 
1995, should be reevaluated to address potential inequities for future 
SMRs, due to their anticipated design characteristics. These 
characteristics include modular design, factory component fabrication, 
and thermal power capacities of 1,000 megawatts thermal (MWt) or less 
per module. These SMRs also may include safety and security design 
features that could ultimately result in a lower regulatory oversight 
burden for this type of reactor. Despite these significant differences, 
under the NRC's current fee structure, an SMR would be required to pay 
the same annual fee as a current operating reactor. OBRA-90 instructs 
the NRC to ``establish, by rule, a schedule of charges fairly and 
equitably allocating'' various generic agency regulatory costs ``among 
licensees'' and, ``[t]o the maximum extent practicable, the charges 
shall have a reasonable relationship to the cost of providing 
regulatory services and may be based on the allocation of the 
Commission's resources among licensees or classes of licensees.'' 
Because of the significant anticipated differences between SMRs and the 
existing reactor fleet, applying the current fee structure to SMRs 
appears to be contrary to OBRA-90's requirement that the NRC's fees be 
``fairly and equitably'' allocated among its licensees. Therefore, the 
NRC proposes to implement a variable annual fee structure for SMR 
licensees that would include a minimum fee, a variable fee, and a 
maximum fee based on an SMR site's cumulative licensed thermal power 
rating.
    A draft regulatory analysis (Accession No. ML15226A588 in the NRC's 
Agencywide Documents Access and Management System (ADAMS)) has been 
developed for this proposed rulemaking and is available for public 
comment (see Section XIII, Availability of Documents).

Table of Contents

I. Obtaining Information and Submitting Comments
    A. Obtaining Information
    B. Submitting Comments
II. Background
    A. Operating Reactor Annual Fee Structure
    B. Advance Notice of Proposed Rulemaking Regarding an Annual Fee 
Structure for SMRs
    C. Evaluation of Four Alternative Annual Fee Structures for SMRs
    D. Preferred Approach for an Annual Fee Structure for SMRs
III. Discussion
    A. What action is the NRC proposing to take?
    B. When would these actions become effective?
    C. What should I consider as I prepare my comments to the NRC?
IV. Discussion of Proposed Amendments by Section
V. Draft Regulatory Analysis
VI. Regulatory Flexibility Certification
VII. Backfitting and Issue Finality
VIII. Plain Writing
IX. National Environmental Policy Act
X. Paperwork Reduction Act Statement
XI. Voluntary Consensus Standards
XII. Public Meeting
XIII. Availability of Documents

I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket ID NRC-2008-0664 when contacting the NRC 
about

[[Page 68269]]

the availability of information for this action. You may obtain 
publicly available information related to this action by any of the 
following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2008-0664.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly available documents online in the 
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and 
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS, 
please contact the NRC's Public Document Room (PDR) reference staff at 
1-800-397-4209, 301-415-4737, or by email to [email protected]. The 
ADAMS accession number for each document referenced in this document 
(if that document is available in ADAMS) is provided the first time 
that a document is referenced. For the convenience of the reader, the 
ADAMS accession numbers are provided in a table in the ``Availability 
of Documents'' section of this document.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

    Please include Docket ID NRC-2008-0664 in the subject line of your 
comment submission, in order to ensure that the NRC is able to make 
your comment submission available to the public in this docket.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into 
ADAMS, and the NRC does not routinely edit comment submissions to 
remove identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS.

II. Background

A. Operating Reactor Annual Fee Structure

    Over the past 40 years the NRC has assessed, and continues to 
assess, fees to applicants and licensees to recover the cost of its 
regulatory program. The NRC's fee regulations are governed by two laws: 
(1) The Independent Offices Appropriations Act of 1952 (IOAA) (31 
U.S.C. 483 (a)); and (2) OBRA-90 (42 U.S.C. 2214). Under OBRA-90, the 
NRC is required to recover approximately 90 percent of its annual 
budget authority through fees, not including amounts appropriated for 
Waste Incidental to Reprocessing, amounts appropriated for generic 
homeland security activities (non-fee items), amounts appropriated from 
the Nuclear Waste Fund, and amounts appropriated for Inspector General 
services for the Defense Nuclear Facilities Safety Board.
    The NRC assesses two types of fees to meet the requirements of 
OBRA-90. First, licensing and inspection fees, established in 10 CFR 
part 170 under the authority of the IOAA, recover the NRC's cost of 
providing specific benefits to identifiable applicants and licensees. 
Second, annual fees, established in 10 CFR part 171 under the authority 
of OBRA-90, recover NRC's generic and other regulatory costs that are 
not otherwise recovered through 10 CFR part 170 fees during the fiscal 
year.
    Under the current annual fee structure, SMRs would be required to 
pay the same annual fee as those paid by the operating reactor fee 
class. For the operating reactor fee class, the NRC allocates 10 CFR 
part 171 annual fees equally among the operating power reactor 
licensees to recover those budgetary resources expended for rulemaking 
and other generic activities which benefit the entire fee class. If 10 
CFR part 171, in its current form, is applied to SMRs, then each SMR 
reactor would be required to pay the same flat annual fees as the 
existing operating reactor fleet, even though SMRs are expected to be 
considerably smaller in size and are expected to utilize designs that 
may reduce the NRC's regulatory costs per reactor.
    Additionally, under the current annual fee structure, multimodule 
nuclear plants would be assessed annual fees on a per-licensed-module 
basis, as stated in the draft regulatory analysis, in the section 
titled ``Identification and Preliminary Analysis of Alternative 
Approaches.'' For example, an SMR site with 12 licensed SMR modules 
with low thermal power ratings would have to pay 12 times the annual 
fee paid by a single large operating reactor, even if that single 
reactor had higher thermal power rating than the combined power of the 
12 SMR modules; this disparity raises fairness and equity concerns 
under OBRA-90. The SMR licensees could apply for fee exemptions to 
lower their annual fees; however, fee exceptions are appropriate only 
for unanticipated or rare situations. OBRA-90 requires NRC to 
establish, by rule, a schedule of charges fairly and equitably 
allocating annual fees among its licensees. If the NRC anticipates up-
front that its annual fee schedule will not be fair and equitable as 
applied to a particular class of licensees, then amending the schedule, 
rather than planning to rely on the exemption process, is the better 
course of action for complying with OBRA-90.

B. Advance Notice of Proposed Rulemaking Regarding an Annual Fee 
Structure for SMRs

    In order to address any potential inequities described above, the 
NRC began re-evaluating its annual fee structure as it relates to SMRs. 
In March 2009, the NRC published an Advance Notice of Proposed 
Rulemaking (ANPR) for a variable annual fee structure for power 
reactors in the Federal Register (74 FR 12735, March 25, 2009). 
Although the ANPR nominally addressed the fee methodology used for all 
power reactors, its principal focus was on how to best adapt the 
existing fee methodology for future SMRs.
    The NRC received 16 public comments on the ANPR from licensees, 
industry groups, and private individuals. These comments provided a 
wide range of input for agency consideration. Nine commenters supported 
adjusting the current power reactor annual fee methodology for small 
and medium-sized power reactors by some means. These commenters 
suggested basing the annual fee on either: (a) A risk matrix, (b) the 
thermal power ratings (in megawatts thermal, MWt), (c) the cost of 
providing regulatory service, or d) an amount proportional to the size 
of the system based on megawatt (MW) ratings compared to a fixed 
baseline. Three commenters representing small reactor design vendors 
supported a variable fee rate structure as a means to mitigate the 
impacts of the existing fee structure on potential customers of their 
small reactor designs.
    Other commenters not supporting the variable annual fee structure 
recommended the following changes to the fee methodology: (a) 
Reinstatement of reactor size as a factor in evaluating fee exemption 
requests under 10 CFR

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171.11(c), (b) establishment of power reactor subclasses, or (c) 
performance of additional analysis before making any changes to the 
current fee structure. Two commenters expressed an unwillingness to 
subsidize operating SMRs at the expense of their own businesses and 
believed that the flat-rate methodology provided regulatory certainty 
and assisted the ability to make ongoing financial plans.
    In September 2009, the NRC staff submitted SECY-09-0137, ``Next 
Steps for Advance Notice of Proposed Rulemaking on Variable Annual Fee 
Structure for Power Reactors,'' to the Commission for a notation vote 
(ADAMS Accession No. ML092660166). The paper summarized the comments 
received in response to the ANPR and requested Commission approval to 
form a working group to analyze the commenters' suggested 
methodologies. The Commission approved the staff's recommendation in 
the October 13, 2009, Staff Requirements Memorandum (SRM) for SECY-09-
0137 (ADAMS Accession No. ML092861070).

C. Evaluation of Four Alternative Annual Fee Structures for SMRs

    The NRC subsequently formed a working group to analyze the ANPR 
comments, as well as position papers submitted to the NRC from the 
Nuclear Energy Institute (NEI), ``NRC Annual Fee Assessment for Small 
Reactors,'' dated October 2010 (ADAMS Accession No. ML103070148); and 
from the American Nuclear Society (ANS), ``Interim Report of the 
American Nuclear Society President's Special Committee on Small and 
Medium Sized Reactor (SMR) Generic Licensing Issues,'' dated July 2010 
(ADAMS Accession No. ML110040946).
    Four possible alternatives emerged from the working group's 
analysis of the public comments and the NEI and ANS position papers:
    1. Continue the existing annual fee structure, but define a modular 
site of up to 12 reactors or 4,000 MWt licensed power rating as a 
single unit for annual fee purposes.
    2. Create fee classes for groups of reactor licensees and 
distribute the annual fee costs attributed to each fee class equally 
among the licensees in that class.
    3. Calculate the annual fee for each licensed power reactor as a 
function of potential risk to public health and safety using a risk 
matrix.
    4. Calculate the annual fee for each licensed power reactor as a 
function of its licensed thermal power rating.
    The NRC staff further concluded that the original Alternative 3, 
which calculated the annual fee for each SMR as a function of its 
potential risk to public health and safety using a risk matrix, did not 
warrant further consideration and analysis because of the technical 
complexities and potential costs of developing the probalistic risk 
assessments necessary to implement this alternative.

D. Preferred Approach for an Annual Fee Structure for SMRs

    The working group examined the alternatives and informed the NRC's 
Chief Financial Officer (CFO) that Alternative 4 was the working 
group's preferred recommendation because it allows SMRs to be assessed 
specific fee amounts based on their licensed thermal power ratings 
(measured in MWt) on a variable scale with a minimum fee and a maximum 
fee. Additionally, the variable portion of the fee allows for multiple 
licensed SMR reactors on a single site to be treated as a single 
reactor for fee purposes up to 4,000 MWt. The working group determined 
that these attributes best align with NRC requirements under OBRA-90.
    The CFO submitted the final recommendations to the Commission in an 
informational memorandum dated February 7, 2011, ``Resolution of Issue 
Regarding Variable Annual Fee Structure for Small and Medium-Sized 
Nuclear Power Reactors'' (ADAMS Accession No. ML110380251). The 
memorandum described the results of the working group's efforts and its 
recommendation that the annual fee structure for SMRs be calculated for 
each newly licensed power reactor as a function of its licensed thermal 
power rating. The memorandum indicated that the staff intended to 
obtain Commission approval for the planned approach during the process 
for developing the proposed rule.
    In FY 2014, the staff reviewed the analysis and recommendations in 
the 2011 memorandum and determined that they remained sound. However, 
the working group identified one additional area for consideration 
related to the maximum thermal power rating eligible for a single 
annual fee.
    In the FY 2011 memorandum, the CFO proposed an upper threshold of 
4,000 MWt for multi-module power plants to be allocated a single annual 
fee. This value was comparable to the largest operating reactor units 
at the time (Palo Verde Nuclear Generating Station Units 1, 2, and 3 at 
3,990 MWt each). Subsequently, a power uprate was approved for Grand 
Gulf Nuclear Station, Unit 1, which raised the maximum licensed thermal 
power rating to 4,408 MWt. Therefore, the working group recommended 
setting the single-fee threshold for a multi-module nuclear plant at 
4,500 MWt on the SMR variable annual fee structure scale so that the 
maximum fee remains aligned with the largest licensed power reactor.
    With this change, the staff submitted final recommendations to the 
Commission and requested approval to proceed with a proposed rulemaking 
for an SMR annual fee structure in a memorandum dated March 27, 2015, 
``Proposed Variable Annual Fee Structure for Small Modular Reactors'' 
(ADAMS Accession No. ML15051A092). The Commission approved the staff's 
request to proceed with a proposed rulemaking on May 18, 2015, in SRM-
SECY-15-0044 (ADAMS Accession No. ML15135A427).

III. Discussion

A. What action is the NRC proposing to take?

    Based on the Commission's approval in SRM-SECY-15-0044, May 18, 
2015 (ADAMS Accession No. ML15135A427), the NRC staff is proposing to 
implement a variable annual fee structure for SMRs. As detailed in the 
draft regulatory analysis, the NRC determined the current annual fee 
structure may not be fair and equitable for assessing fees to SMRs 
based on the unique size and characteristics of SMRs.
    As explained in the Background section of this proposed rule, the 
NRC staff previously solicited public input regarding an annual fee 
structure for SMRs via an ANPR, and the NRC staff submitted two papers 
to the Commission discussing alternative annual fee structures which 
resulted in the recommendation of the variable annual fee structure as 
the preferred approach. In FY 2015, for this proposed rule and draft 
regulatory analysis, the NRC staff further refined the original 
alternatives and concluded that a ``no action alternative'' should be 
added to serve as the baseline to compare against all other 
alternatives for this proposed rulemaking.
    Therefore, the four alternatives analyzed for this rulemaking are 
as follows:
    1. No action.
    2. Continue the existing annual fee structure for all reactors but 
allow for ``bundling'' of SMR reactor modules up to a total of 4,500 
MWt as a single SMR ``bundled unit.''
    3. Continue the existing annual fee structure for the current fleet 
of operating power reactors but establish a third fee class for SMRs 
with fees commensurate with the budgetary resources allocated to SMRs.

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    4. Continue the existing annual fee structure for the current fleet 
of operating power reactors but calculate the annual fee for each SMR 
site as a multi-part fee which includes minimum fee, variable fee and 
maximum fee.
    As explained in the draft regulatory analysis for this proposed 
rule, the NRC staff analyzed Alternative 1 (the no action alternative) 
and has concluded that this alternative continues to be a fair, 
equitable and stable approach for the existing fleet of reactors. This 
is because previous agency efforts to manage cost and fee allocations 
at a more granular level proved to be labor intensive and resulted in 
minimal additional benefits to licensees when compared to the flat-fee 
approach (60 FR 32230; June 20, 1995). But for SMRs, the current fee 
structure could produce such a large disparity between the annual fees 
paid by a licensee and the economic benefits that the licensee gained 
from using the license that it would be contrary to OBRA-90. For 
example, a hypothetical SMR site with twelve SMR reactor modules would 
have to pay twelve times the annual fee paid by a single current 
operating reactor--almost $54 million per year based on FY 2015 fee 
rule data. By comparison, Fort Calhoun, the smallest reactor in the 
current operating fleet, would pay approximately $4.5 million in annual 
fees. Such a result would be contrary to OBRA-90's requirement to 
establish a fair fee schedule, and therefore the no action alternative 
is unacceptable.
    Small modular reactor licensees could apply for annual fee 
exemptions under 10 CFR 171.11(c). The fee exemption criteria considers 
the age of the reactor, number of customers in the licensee's rate 
base, how much the annual fee would add to the per kilowatt-hour (kWh) 
cost of electricity, and other relevant issues. But as described in 
SECY-15-0044, there are no guarantees that an application for an 
exemption would be approved, decreasing regulatory certainty. And, 
OBRA-90 requires the NRC to establish, by rule, a schedule of charges 
fairly and equitably allocating annual fees among its licensees. 
Therefore, if the NRC anticipates up-front that its annual fee schedule 
will not be fair and equitable as applied to a particular class of 
licensees, then amending the schedule, rather than planning to rely on 
the exemption process, is the far better course for complying with 
OBRA-90.
    Also, as explained in the draft regulatory analysis for this 
proposed rule, the NRC staff evaluated Alternative 2, which continues 
the existing annual fee structure for all reactors and allows for the 
bundling of the thermal ratings of SMRs on a single site up to total 
licensed thermal power rating of up to 4,500 MWt, which is roughly 
equivalent to the licensed thermal power rating of the largest reactor 
in the current fleet. Alternative 2 provides more fairness to SMRs than 
Alternative 1 because it allows SMR licensees to bundle their SMRs on a 
single site. For smaller SMR facilities, however, Alternative 2 would 
still create great disparities among facilities in terms of the annual 
fees they pay relative to the economic benefits they stand to gain from 
their NRC licenses. Consider, for illustrative purposes, an SMR site 
with only one NuScale reactor module. This licensee for this site would 
still be required to pay the full annual fee but could only spread the 
fee over 160 MWt-about $31,123 per MWt as explained in the draft 
regulatory analysis. In contrast, the licensee for an SMR site 
featuring 12 NuScale reactor modules would pay only $2,594 per MWt in 
annual fees as explained in the draft regulatory analysis. Alternative 
2, therefore, goes only part of the way towards addressing the fairness 
and equity concerns that prompted this rulemaking, while leaving 
significant potential for disparities from one SMR licensee to another, 
in terms of the economic benefits the licensee would be able to receive 
from its NRC license relative to the annual fees assessed. As with 
Alternative 1, SMR licensees could apply for annual fee exemptions 
under 10 CFR 171.11(c). But again there are no guarantees that an 
exemption would be approved, decreasing regulatory certainty. For these 
reasons, and as further explained in the draft regulatory analysis, the 
NRC staff finds Alternative 2 to be an unacceptable approach.
    Alternative 3, as explained in the draft regulatory analysis for 
this proposed rule, would entail creating a separate fee class for SMRs 
with fees commensurate with the budgetary resources allocated to SMRs, 
similar to the operating reactor and research and test reactors fee 
classes. This alternative would establish a flat annual fee that is 
assessed equally among the licensees in the SMR class. Although this 
approach has proven to be fair and equitable for the current fee 
classes, this approach applied to SMRs would be unfair due to the 
potential various sizes and types of SMR designs. In particular, a 
single per-reactor fee could prove unduly burdensome to SMRs with low 
thermal power ratings (such as 160 MWt for a single NuScale SMR) when 
compared to SMRs with higher rated capacities (such as 800 MWt for a 
single Westinghouse SMR). Additionally, Alternative 3 is similar to the 
``no action'' alternative in the sense that fees are based per licensed 
reactor or module rather than on the cumulative licensed thermal power 
rating. This alternative, therefore, fails to address the fee disparity 
created for SMRs using multiple small modules rather than fewer, larger 
reactors with a similar cumulative thermal power rating. It is the 
NRC's intent to select an SMR fee alternative that is fair and 
equitable for the broadest possible range of SMR designs. Flat-rate 
alternatives such as this one are inconsistent with the ``fair and 
equitable'' requirements of OBRA-90 when applied to a fee class with 
the wide range of SMR thermal power capacities as described by reactor 
designers to date. As with the previous alternatives, SMR licensees 
could apply for annual fee exemptions under 10 CFR 171.11(c). But again 
there are no guarantees that an exemption would be approved, decreasing 
regulatory certainty. For these reasons, and as further explained in 
the draft regulatory analysis, Alternative 3 is an unacceptable 
approach.
    Ultimately, the NRC staff analyzed the mechanics of the variable 
annual fee structure under Alternative 4 and determined that it is the 
best approach for assessing fees to SMRs in a fair and equitable manner 
under OBRA-90. Unlike the current fee structure, this approach 
recognizes the anticipated unique characteristics of SMRs in relation 
to the existing fleet. In comparison to Alternative 2, this approach 
ensures that all SMRs are treated fairly, rather than just those whose 
licensed thermal power rating ranges between 2,000-4,500 MWt. Unlike 
Alternative 3, the variable annual fee structure assesses a range of 
annual fees to SMRs based on licensed thermal power rating, rather than 
assessing a single flat fee that could apply to potentially a very wide 
range of SMRs.
    The variable annual fee structure computes SMR annual fees on a 
site basis, considering all SMRs on the site up to a total licensed 
thermal power rating of up to 4,500 MWt to be a single bundled unit 
that would pay the same fee as the current operating fleet. The 
variable annual fee structure has three parts; a minimum annual fee 
(the average of the research and test reactor fee class and the spent 
fuel storage/reactor decommissioning fee class), a variable fee charged 
on a per-MWt basis for bundled units in a particular size range below 
the typical current operating fleet reactor size, and a maximum annual 
fee equivalent to the

[[Page 68272]]

annual fee charged to current operating fleet reactors.
    Bundled units with a total licensed thermal power rating at or 
below 250 MWt would pay a flat minimum fee; for example, based on FY 
2015 fee rule data, the fee would be $154K as explained in the draft 
regulatory analysis. This minimum fee is consistent with the principle 
that reactor-related licensees in existing low-fee classes may not 
generate substantial revenue, yet still derive benefits from NRC 
activities performed on generic work. Therefore, they must pay more 
than a de minimis part of the NRC's generic costs. By calculating the 
minimum fee for SMRs within the range of annual fees paid by other low-
fee reactor classes, this methodology satisfies OBRA-90's fairness and 
equity requirements because it ensures consistent NRC treatment for 
low-power and low-revenue reactors.
    Fees for bundled units with a total licensed thermal power rating 
greater than 250 MWt and less than or equal to 2,000 MWt would be 
computed as the minimum fee plus a variable fee based on the bundled 
unit's cumulative licensed thermal power rating. The variable fee 
should generally correlate with the economic benefits the licensee is 
able to derive from its NRC license and will ensure that similarly 
rated SMRs pay comparable fees.
    For a bundled unit with a licensed thermal power rating comparable 
to a typical large light-water reactor that is greater than 2,000 MWt 
and less than or equal to 4,500 MWt, the maximum annual fee assessed to 
the licensee would be the same fee that would be paid by a reactor 
licensee in the current operating fleet. This approach ensures 
comparable fee treatment of facilities that stand to derive comparable 
economic benefits from their NRC-licensed activities.
    For SMR sites with a licensed thermal power rating that exceeds 
4,500 MWt, the licensee would be assessed the maximum fee for the first 
bundled unit, plus a variable annual fee for the portion of the thermal 
rating above the 4,500 MWt and less than or equal to 6,500 MWt for a 
second bundled unit (the licensee would not incur a second minimum fee 
for the same SMR site). If a site rating exceeds the 6,500 MWt level 
and it less than or equal to 9,000 MWt, the maximum fee would be 
assessed for each bundled unit. The NRC considered avoiding the second 
variable portion of the fee structure and simply doubling the annual 
maximum fee for the second bundled unit; however, this would be unfair 
if the site's second bundled unit had a small licensed thermal power 
rating. Similar to the other three alternative fee structures, this 
method would have failed to address the inequity of the size of the 
bundled unit versus the size of the fee the licensee would have to pay.
    Therefore, as demonstrated in the draft regulatory analysis, the 
NRC staff concludes the variable annual fee structure allows SMRs to 
pay an annual fee that is commensurate with the economic benefit 
received from its license and that appropriately accounts for the 
design characteristics and current expectations regarding regulatory 
costs. This complies with OBRA-90's requirement to establish a fee 
schedule that fairly and equitably allocates NRC's fees.

B. When would these actions become effective?

    Generally, the NRC allows an adequate time (30 to 180 days) for a 
final rule to become effective. The time for the final rule to become 
effective depends on the scope of the rulemaking, the availability of 
associated guidance, and the complexity of the final rule. With regard 
to this proposed rule, the NRC proposes that the final rule become 
effective 30 days from its publication in the Federal Register.

C. What should I consider as I prepare my comments to the NRC?

    When submitting your comments, remember to:
    1. Identify the rulemaking (RIN 3150-AI54) and Docket ID NRC-2008-
0664)
    2. Explain why you agree or disagree with the proposed rule; 
suggest alternatives and substitute language for your requested 
changes.
    3. Describe any assumptions and provide any technical information 
and/or data that you used.
    4. If you estimate potential costs or burdens, explain how you 
arrived at your estimate in sufficient detail to allow for it to be 
reproduced.
    5. Provide specific examples to illustrate your concerns, and 
suggest alternatives.
    6. Explain your views as clearly as possible.
    7. Submit your comments by the comment period deadline as stated in 
the DATES section of this proposed rule.

IV. Discussion of Proposed Amendments by Section

    The following paragraphs describe the specific changes proposed by 
this rulemaking.
Section 170.3 Definitions
    The NRC proposes to add definitions for ``bundled unit,'' ``small 
modular reactor (SMR),'' and ``small modular reactor site (SMR site).''
Section 171.5 Definitions
    The NRC proposes to add definitions for ``bundled unit,'' ``maximum 
fee,'' ``minimum fee,'' ``small modular reactor (SMR),'' ``small 
modular reactor site (SMR site),'' ``variable fee,'' and ``variable 
rate.''
Section 171.15 Annual Fees: Reactor Licenses and Independent Spent Fuel 
Storage Licenses
    The NRC proposes to redesignate current paragraph (e) as new 
paragraph (f) and add new paragraphs (e)(1), (e)(2) and (e)(3) to 
define activities that comprise SMR annual fees and the time period the 
NRC must collect annual fees from SMR licensees.

V. Draft Regulatory Analysis

    The NRC has prepared a draft regulatory analysis on this proposed 
regulation. The analysis examines the costs and benefits of the 
alternatives considered by the NRC. The NRC requests public comment on 
the draft regulatory analysis. The draft regulatory analysis is 
available as indicated in the ``Availability of Documents'' section of 
this document. Comments on the draft analysis may be submitted to the 
NRC as indicated under the ADDRESSES section of this document.

VI. Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this rule, if adopted, will not 
have a significant economic impact on a substantial number of small 
entities. This proposed rule affects only the licensing and operation 
of nuclear power plants. The companies that own these plants do not 
fall within the scope of the definition of ``small entities'' set forth 
in the Regulatory Flexibility Act or the size standards established by 
the NRC (10 CFR 2.810).

VII. Backfitting and Issue Finality

    The NRC has determined that the backfit rule, 10 CFR 50.109, does 
not apply to this proposed rule and that a backfit analysis is not 
required. A backfit analysis is not required because these amendments 
do not require the modification of, or addition to, systems, 
structures, components, or the design of a facility, or the design 
approval or manufacturing license for a facility, or the procedures or 
organization required to design, construct, or operate a facility.

[[Page 68273]]

VIII. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, and well-organized 
manner. The NRC has written this document to be consistent with the 
Plain Writing Act as well as the Presidential Memorandum, ``Plain 
Language in Government Writing,'' published June 10, 1998 (63 FR 
31883). The NRC requests comment on the proposed rule with respect to 
the clarity and effectiveness of the language used.

IX. National Environmental Policy Act

    The NRC has determined that this proposed rule is the type of 
action described in 10 CFR 51.22(c)(1). Therefore, neither an 
environmental impact statement nor environmental assessment has been 
prepared for this proposed rule.

X. Paperwork Reduction Act

    This proposed rule does not contain a collection of information as 
defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) 
and, therefore, is not subject to the requirements of the Paperwork 
Reduction Act of 1995.

XI. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 104-113, requires that Federal agencies use technical 
standards that are developed or adopted by voluntary consensus 
standards bodies unless the use of such a standard is inconsistent with 
applicable law or otherwise impractical. In this proposed rule, the NRC 
is proposing amend its licensing, inspection, and annual fee 
regulations to establish a variable annual fee structure for SMRs. This 
action does not constitute the establishment of a standard that 
contains generally applicable requirements.

XII. Public Meeting

    The NRC will hold a public meeting to describe and explain the 
rationale for the variable annual fee structure and to accept questions 
from the public on this proposed rule.
    The NRC will publish a notice of the location, time, and agenda of 
the meeting in the Federal Register, on Regulations.gov, and on the 
NRC's public meeting Web site at least 10 calendar days before the 
meeting. Stakeholders should monitor the NRC's public meeting Web site 
for information about the public meeting at: http://www.nrc.gov/public-involve/public-meetings/index.cfm.

XIII. Availability of Documents

    The documents identified in the following table are available to 
interested persons as indicated.

------------------------------------------------------------------------
               Document                        ADAMS Accession No.
------------------------------------------------------------------------
Summary of ANPR Comments..............  ML14307A812.
ANS Position Paper, ``NRC Annual Fees   ML110040946.
 for Licensees''.
NEI Position Paper, ``NRC Annual Fee    ML103070148.
 Assessment for Small Reactors''.       ML110380260.
Memorandum to the Commission,           ML110380251.
 ``Resolution of Issue Regarding
 Variable Annual Fee Structure for
 Small and Medium-Sized Nuclear Power
 Reactors,'' February 7, 2011.
SECY-15-0044, ``Proposed Variable       ML15051A092.
 Annual Fee Structure for Small
 Modular Reactors'', March 27, 2015.
Staff Requirements Memorandum--SECY-15- ML15135A427.
 0044, ``Proposed Variable Annual Fee
 Structure for Small Modular
 Reactors'', May 15, 2015.
Draft Regulatory Analysis for Proposed  ML15226A588.
 Changes to 10 CFR Part 171 ``Annual
 Fees for Reactor Licenses and Fuel
 Cycle Licenses and Materials
 Licenses, Including Holders of
 Certificates of Compliance,
 Registrations, and Quality Assurance
 Program Approvals and Government
 Agencies Licensed by the NRC''.
------------------------------------------------------------------------

    Throughout the development of this rule, the NRC may post documents 
related to this rule, including public comments, on the Federal 
rulemaking Web site at http://www.regulations.gov under Docket ID NRC-
2008-0664. The Federal rulemaking Web site allows you to receive alerts 
when changes or additions occur in a docket folder. To subscribe: (1) 
Navigate to the docket folder NRC-2008-0664; (2) click the ``Sign up 
for Email Alerts'' link; and (3) enter your email address and select 
how frequently you would like to receive emails (daily, weekly, or 
monthly).

List of Subjects

10 CFR Part 170

    Byproduct material, Import and export licenses, Intergovernmental 
relations, Non-payment penalties, Nuclear energy, Nuclear materials, 
Nuclear power plants and reactors, Source material, Special nuclear 
material.

10 CFR Part 171

    Annual charges, Byproduct material, Holders of certificates, 
registrations, approvals, Intergovernmental relations, Nonpayment 
penalties, Nuclear materials, Nuclear power plants and reactors, Source 
material, Special nuclear material.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended; the Energy Reorganization 
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is proposing 
to adopt the following amendments to 10 CFR parts 170 and 171:

PART 170--FEES FOR FACILITIES, MATERIALS IMPORT AND EXPORT LICENSES 
AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT OF 1954, 
AS AMENDED

0
1. The authority citation for part 170 continues to read as follows:

    Authority: Atomic Energy Act of 1954, secs. 11, 161(w) (42 
U.S.C. 2014, 2201(w)); Energy Reorganization Act of 1974, sec. 201 
(42 U.S.C. 5841); 42 U.S.C. 2214; 31 U.S.C. 901, 902, 9701; 44 
U.S.C. 3504 note.

0
2. In Sec.  170.3, add, in alphabetical order, the definitions for 
bundled unit, small modular reactor (SMR), and small modular reactor 
site (SMR site) to read as follows:


Sec.  170.3  Definitions.

* * * * *
    Bundled unit is a measure of the cumulative licensed thermal power 
rating for one or more SMRs located on a single SMR site. One bundled 
unit is less than or equal to 4,500 MWt.
* * * * *
    Small modular reactor (SMR) for the purposes of calculating fees, 
means the class of light-water power reactors having a licensed thermal 
power rating less than or equal to 1,000 MWt per module. This rating is 
based on the thermal power equivalent of a light-water SMR with an 
electrical power

[[Page 68274]]

generating capacity of 300 MWe or less per module.
    Small modular reactor site (SMR site) is the geographically bounded 
location of one or more SMRs and a basis on which SMR fees are 
calculated.
* * * * *

PART 171--ANNUAL FEES FOR REACTOR LICENSES AND FUEL CYCLE LICENSES 
AND MATERIALS LICENSES, INCLUDING HOLDERS OF CERTIFICATES OF 
COMPLIANCE, REGISTRATIONS, AND QUALITY ASSURANCE PROGRAM APPROVALS 
AND GOVERNMENT AGENCIES LICENSED BY THE NRC

0
3. The authority citation for part 171 continues to read as follows:

    Authority:  Atomic Energy Act of 1954, secs. 11, 161(w), 223, 
234 (42 U.S.C. 2014, 2201(w), 2273, 2282); Energy Reorganization Act 
of 1974, sec. 201 (42 U.S.C. 5841); 42 U.S.C. 2214; 44 U.S.C. 3504 
note.

0
4. In Sec.  171.5, add, in alphabetical order, the definitions for 
bundled unit, maximum fee, minimum fee, small modular reactor (SMR), 
small modular reactor site (SMR site), variable fee and variable rate 
to read as follows:


Sec.  171.5  Definitions.

* * * * *
    Bundled unit means a measure of the cumulative licensed thermal 
power rating for one or more SMRs located on a single SMR site. One 
bundled unit is less than or equal to 4,500 MWt.
* * * * *
    Maximum fee is defined as the highest fee paid by a single bundled 
unit. It is applied to all bundled units on an SMR site with a licensed 
thermal power rating greater than 2,000 and less than or equal to 4,500 
MWt and is equal to the annual fee paid by existing fleet power 
reactors.
    Minimum fee means one annual fee component paid by the first 
bundled unit on a site with a cumulative licensed thermal power rating 
of 2,000 MWt or less. For the first bundled unit on a site with a 
licensed thermal power rating of 250 MWt or less, it is the only annual 
fee that a licensee pays.
* * * * *
    Small modular reactor (SMR) for the purposes of calculating fees, 
means the class of light-water power reactors having a licensed thermal 
power rating less than or equal to 1,000 MWt per module. This rating is 
based on the thermal power equivalent of a light-water SMR with an 
electrical power generating capacity of 300 MWe or less per module.
    Small modular reactor site (SMR site) means the geographical 
bounded location of one or more SMRs and a basis on which SMR fees are 
calculated.
* * * * *
    Variable fee means the annual fee component paid by the first 
bundled unit on a site with a licensed thermal power rating greater 
than 250 and less than or equal to 2,000 MWt. For additional bundled 
units on a site, the variable fee is calculated based on the licensed 
thermal power rating equal to or less 2,000 MWt.
    Variable rate means a per-MWt fee factor applied to the first 
bundled unit on a site with a licensed thermal power rating greater 
than 250 and or less than or equal to 2,000 MWt, or to additional 
bundled units on a site above the 4,500 MWt threshold based on the 
licensed thermal power rating equal to or less than 2,000 MWt. The 
factor is based on the difference between the maximum fee and the 
minimum fee, divided by the difference in the variable fee licensed 
thermal rating range (either 1,750 MWt for the 2,000 MWt for first 
bundled unit or 2,000 MWt for additional bundled units).
0
5. In Sec.  171.15, redesignate paragraph (e) as paragraph (f), and add 
new paragraph (e) to read as follows:


Sec.  171.15  Annual fees: Reactor licenses and independent spent fuel 
storage licenses.

* * * * *
    (e)(1) Each person holding an operating license for a small modular 
reactor issued under part 50 of this chapter or that holds a combined 
license issued under part 52 of this chapter after the Commission has 
made the finding under 10 CFR 52.103(g) shall pay the annual fee for 
each license held during the fiscal year in which the fee is due.
    (2) The annual fees for a small modular reactor(s) located on a 
single site to be collected by September 30 of each year, are as 
follows:

------------------------------------------------------------------------
  Bundled unit thermal power
           rating *             Minimum fee   Variable fee   Maximum fee
------------------------------------------------------------------------
First Bundled Unit:
    0-250 MWt................  TBD..........  N/A.........  N/A.
    > 250 <= 2,000 MWt.......  TBD..........  TBD.........  N/A.
    > 2,000 <= 4,500 MWt.....  N/A..........  N/A.........  TBD.
Additional Bundled Units:
    > 4,500 <= 6,500 MWt.....  N/A..........  TBD.........  N/A.
    > 6,500 <= 9,000 MWt.....  N/A..........  N/A.........  TBD.
------------------------------------------------------------------------
* Note that the total annual fee paid is cumulative for the first
  bundled unit and each additional bundled unit.

    (3) The annual fee is assessed for the same activities listed for 
the power reactor base annual fee and spent fuel storage/reactor 
decommissioning reactor fee.
* * * * *

    Dated at Rockville, Maryland, this 16th day of October 2015.

    For the Nuclear Regulatory Commission.
Maureen E. Wylie,
Chief Financial Officer.
[FR Doc. 2015-28110 Filed 11-3-15; 8:45 am]
 BILLING CODE 7590-01-P