[Federal Register Volume 87, Number 33 (Thursday, February 17, 2022)]
[Rules and Regulations]
[Pages 8943-8947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03146]



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 Rules and Regulations
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  Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 / 
Rules and Regulations  

[[Page 8943]]



NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2 and 171

[NRC-2014-0264]
RIN 3150-AJ51


Receipts-Based NRC Size Standards

AGENCY: U.S. Nuclear Regulatory Commission.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its 
small business size standards, which are used to qualify an NRC 
licensee as a ``small entity'' under the Regulatory Flexibility Act of 
1980, as amended. The purpose of these size standards is for reducing 
annual NRC license fees for small entities. These standards do not 
apply to the NRC's contracts for goods and services. The NRC is 
increasing the upper and lower tiers for its receipts-based small 
entity size standards for small businesses and small not-for-profit 
organizations. This change allows NRC standards to remain consistent 
with the inflation adjustments made by the Small Business 
Administration size standard for nonmanufacturing concerns. In 
addition, in accordance with the Small Business Runway Extension Act of 
2018, the NRC is changing the calculation of annual average receipts 
for the receipts-based NRC size standard for small businesses that 
provide a service or small businesses not engaged in manufacturing from 
a 3-year averaging period to a 5-year averaging period.

DATES: This final rule is effective on March 21, 2022.

ADDRESSES: Please refer to Docket ID NRC-2014-0264 when contacting the 
NRC about 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 Website: Go to https://www.regulations.gov and search for Docket ID NRC-2014-0264. Address 
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407; 
email: [email protected]. For technical questions, contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this final rule.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, 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 (if it is available in ADAMS) is provided the first 
time that it is mentioned in this document. For the convenience of the 
reader, instructions about obtaining materials referenced in this 
document are provided in the ``Availability of Documents'' section of 
this document.

FOR FURTHER INFORMATION CONTACT: Jo Jacobs, Office of the Chief 
Financial Officer, telephone: 301-415-8388; email: [email protected]; 
or Billy Blaney, Office of the Chief Financial Officer, telephone: 301-
415-5092; email: [email protected]. Both are staff of the U.S. 
Nuclear Regulatory Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background
II. Discussion
III. Public Comments
IV. Regulatory Flexibility Certification
V. Regulatory Analysis
VI. Backfitting and Issue Finality
VII. Plain Writing
VIII. National Environmental Policy Act
IX. Paperwork Reduction Act Public Protection Notification
X. Congressional Review Act
XI. Voluntary Consensus Standards
XII. Availability of Guidance
XIII. Availability of Documents

I. Background

    The NRC's current size standards are provided under part 2 of title 
10 of the Code of Federal Regulations (10 CFR), ``Agency Rules of 
Practice and Procedure,'' in Sec.  2.810, ``NRC size standards.'' These 
standards were established on December 9, 1985 (50 FR 50241), when the 
NRC implemented the requirements of the Regulatory Flexibility Act of 
1980, as amended (RFA). The RFA requires agencies to consider the 
impact of rulemaking on small entities and, consistent with applicable 
statutes, study alternatives to minimize these impacts on applicable 
businesses, organizations, and government jurisdictions. The NRC's 
regulations in Sec.  2.810 and 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,'' contain the criteria, in Sec.  171.16(a) and (c), ``Annual 
fees: Materials licensees, holders of certificates of compliance, 
holders of sealed source and device registrations, holders of quality 
assurance program approvals, and government agencies licensed by the 
NRC,'' that certain licensees use to qualify as small entities for the 
purpose of reducing annual license fees. The NRC's current size 
standards under Sec.  2.810 are based on the Small Business 
Administration's (SBA) receipts-based size standards for small 
businesses and small not-for-profit organizations, employee-based size 
standards for business concerns that are manufacturing and for small 
educational institutions that are not State or publicly supported 
entities, and population-based size standards for small governmental 
jurisdictions.
    In establishing the fiscal year (FY) 1991 fee rule, the NRC 
determined that the annual fees would have a significant impact on a 
substantial number of small materials licensees. As a result, the NRC 
established a small entity fee tier in Sec.  171.16(c), which resulted 
in a subsidy program whereby small entities would pay a reduced annual 
fee (56 FR 31507; July 10, 1991). In FY 1992, the NRC established a 
second tier in Sec.  171.16(c) to benefit the licensees that were very 
small entities. Pursuant to Sec.  171.16(c), if a licensee qualifies as 
a small entity and provides the Commission with the proper 
certification, the licensee may pay a reduced annual fee. As part of 
the certification process, a licensee that

[[Page 8944]]

meets the NRC's size standards for a small entity must complete NRC 
Form 526, ``Certification of Small Entity Status for the Purposes of 
Annual Fees,'' certifying that it meets the NRC's size standards for a 
small entity.
    The last revisions to the receipts-based size standards in 
Sec. Sec.  2.810 and 171.16(c) to adjust for inflation were published 
in the Federal Register on July 3, 2012 (77 FR 39385), and in the FY 
2013 final fee rule published in the Federal Register on July 1, 2013 
(78 FR 39479), respectively. More recently, in FY 2020, the NRC 
surveyed its materials licensees to help determine whether to change 
the size standards in Sec.  2.810 (85 FR 6225; February 4, 2020). With 
the exception of inflation-related increases and adjusting the 
methodology for calculating average gross-receipts to be consistent 
with the Small Business Runway Extension Act of 2018 (Runway Act) and 
SBA regulations, the survey results did not suggest that the NRC should 
change its small entity size standards.
    The Runway Act amended section 3(a)(2)(C)(ii)(II) of the Small 
Business Act (15 U.S.C. 632(a)(2)(C)(ii)(II)), to modify the 
requirements for the small business size standards prescribed by an 
agency without separate statutory authority to issue size standards. 
Subsequently, on December 5, 2019, the SBA published a final rule 
modifying its method for calculating average annual receipts used to 
prescribe size standards for small businesses (84 FR 66561). As a 
result of adjustments for inflation described more fully in the 
``Discussion'' section of this document, the NRC must revise its 
receipts-based size standards from a 3-year averaging period to a 5-
year averaging period to comply with the Runway Act.
    In order to amend Sec.  2.810, the NRC must follow the procedures 
of the Small Business Act, and SBA's implementing regulations in 13 CFR 
121.903, ``How may an agency use size standards for its programs that 
are different than those established by SBA?'' because the NRC does not 
have separate statutory authority to issue size standards. Accordingly, 
the NRC has sent this final rule to SBA for review and has received the 
approval of the SBA Administrator.

II. Discussion

    The NRC is amending Sec.  2.810 to increase the receipts-based 
small entity size standard from $7.0 million to $8.0 million for small 
businesses and small, not-for-profit organizations. These amendments 
are to remain consistent with inflation adjustments made by the SBA to 
its size standard for nonmanufacturing concerns. Most recently, the SBA 
adjusted this standard for inflation on July 18, 2019 (84 FR 34261). In 
addition, the NRC is also amending the average gross-receipts 
calculation process to change from a 3-year averaging period to a 5-
year averaging period, as required by SBA regulations and in response 
to the Runway Act.
    Further, and analogous to the inflation adjustment in Sec.  2.810, 
the NRC is amending Sec.  171.16(c) to increase the upper-tier 
receipts-based small entity size standard from $7.0 million to $8.0 
million for small businesses and small, not-for-profit organizations. 
Likewise, the NRC is increasing the lower-tier receipts-based size 
standard from $485,000 to $555,000, based upon the percent change in 
the upper tier.

III. Public Comments

    The NRC published a proposed rule on July 26, 2021 (86 FR 39980), 
and requested public comment on its proposed revisions to 10 CFR parts 
2 and 171. The comment period on the proposed rule closed on August 25, 
2021. The NRC did not receive any public comments on the proposed rule.

IV. Regulatory Flexibility Certification

    Under the Regulatory Flexibility Act of 1980, as amended (RFA), the 
Commission certifies that this final rule, if adopted, will not have a 
significant economic impact on a substantial number of small entities. 
This final rule is administrative in that this final rule will revise 
the criteria in 10 CFR parts 2 and 171 that the NRC uses to determine 
which of its licensees qualify as small entities for the purposes of 
compliance with the RFA. The amendments to the size standards conform 
to the SBA's revised standard and is expected to result in an increase 
in the number of NRC licensees that qualify as small entities.

V. Regulatory Analysis

    The RFA requires agencies to consider the impact of rulemaking on 
small entities and, consistent with applicable statutes, study 
alternatives to minimize the impacts on applicable businesses, 
organizations, and government jurisdictions. In previous rulemakings to 
amend its size standards, the NRC has adjusted the criteria that the 
NRC uses to determine which of its licensees qualify as small entities 
for the purposes of compliance with the RFA.
    For the NRC's size standards, rulemaking is required to amend the 
methodology for calculating average gross-receipts and the upper and 
lower tier receipts-based size standards to reflect adjustments for 
inflation. The NRC has not revised the receipts-based size standards in 
Sec. Sec.  2.810 and 171.16(c) since 2012 and 2013, respectively; 
therefore, this final rule includes adjustments for inflation. This 
final rule amends Sec. Sec.  2.810 and 171.16(c) to increase the NRC's 
upper-tier receipts-based size standard from $7.0 million to $8.0 
million for small businesses and small not-for-profit organizations, in 
order to remain consistent with the adjustments for inflation made to 
the SBA's size standard for nonmanufacturing. In addition, this final 
rule amends Sec.  171.16(c) to increase the lower-tier receipts-based 
size standard from $485,000 to $555,000, consistent with the percentage 
change in the upper-tier. Furthermore, for consistency with the Runway 
Act and SBA regulations, the NRC is amending its methodology for 
calculating the average gross-receipts from a 3-year averaging period 
to a 5-year averaging period.
    The NRC estimates that the final rule provides the following 
benefits and costs:

Benefits

     This action will result in continued compliance with the 
RFA, since the final rule will reduce the impact of annual fees on 
small entities by increasing the receipts-based size standards in Sec.  
2.810 and the tiers in Sec.  171.16(c) that licensees use to qualify as 
small entities.
     While it is not certain how many licensees would qualify 
as small entities under the receipts-based size standards that are 
being adjusted, the staff estimates that 95 additional licensees (a 12-
percent increase) will potentially qualify as small entities and be 
eligible to pay a reduced annual fee.
     The licensees can have increased regulatory confidence 
that the NRC has amended the agency's receipts-based size standards to 
be consistent with the SBA's practices, and, as stated in SECY-20-0111, 
``Rulemaking Plan to Amend the Receipts-Based NRC Size Standards (NRC-
2014-0264),'' (ADAMS Accession No. ML20268B327), that the NRC will 
review the current size standards and determine whether proposed 
amendments are needed every 5 years or sooner based on the SBA's 
adjustments.

Costs

     The cost impact of changing the average gross-receipts 
from a 3-year averaging period to a 5-year averaging period is not 
known, as the average gross-receipts have been based on a 3-year 
averaging period since the NRC established its size standards in 1985. 
Every licensee will likely need to

[[Page 8945]]

expend some effort to evaluate its gross-receipts and may need to 
provide additional information if questions arise during the staff's 
certification review. Modifying to a 5-year averaging period of gross-
receipts may result in a negative impact in that some licensees that 
are close to the upper limit of their size standard could lose their 
small entity status, while others may newly qualify as small entities. 
Despite this cost, because the NRC is amending the receipts-based size 
standards to adjust for inflation, the NRC also is amending the average 
gross-receipts from a 3-year averaging period to a 5-year averaging 
period pursuant to the Runway Act.
     The expected increase in additional licensees qualifying 
as small entities could possibly increase the NRC's net budget 
authority as a result of additional licensees qualifying as small 
entities.
    The results of the regulatory analysis are cost-justified because 
the final rule would result in an estimated 95 additional licensees (a 
12-percent increase) who would qualify as small entities and be 
eligible to pay a reduced annual fee and the identified cost impacts 
are expected to be small and would not be passed onto other NRC's 
applicants and licensees. The NRC did not identify any other 
alternatives to amend the receipts-based size standards under Sec.  
2.810, which are consistent with the adjustments made by the SBA. In 
addition, the NRC did not identify any alternatives to rulemaking to 
amend the upper and lower tiers under Sec.  171.16(c) to reflect 
adjustments for inflation.

VI. Backfitting and Issue Finality

    The NRC has determined that the backfit rule, Sec. Sec.  50.109, 
70.76, 72.62, and 76.76 and the issue finality provisions in 10 CFR 
part 52 do not apply to this final rule and that an analysis is not 
required because these amendments do not require the modification of, 
or addition to, (1) systems, structures, components, or the design of a 
facility; (2) the design approval or manufacturing license for a 
facility; or (3) the procedures or organization required to design, 
construct, or operate a facility.

VII. 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 wrote 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 31885).

VIII. National Environmental Policy Act

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

IX. Paperwork Reduction Act

    This final 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 Act.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless the document requesting 
or requiring the collection displays a currently valid OMB control 
number.

X. Congressional Review Act

    This final rule is a rule as defined in the Congressional Review 
Act (5 U.S.C. 801-808). However, the Office of Management and Budget 
has not found it to be a major rule as defined in the Congressional 
Review Act.

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 final rule, the action 
does not constitute the establishment of a standard that contains 
generally applicable requirements.

XII. Availability of Guidance

    The NRC publishes a fee guidance document for small entities 
annually in conjunction with the NRC's annual rule to revise its fee 
schedules. The ``Small Entity Compliance Guide'' is designed to assist 
businesses, organizations, educational institutions, and governmental 
jurisdictions in determining whether they qualify as small entities by 
providing the qualifying factors that make up the NRC's definition of 
``small entity,'' and the current small entity fees. The NRC will 
update the compliance guide each year when issuing the final fee rule 
and to align with the fee schedule of that year. As part of a future 
fee rule, the NRC will update the Small Entity Compliance Guide to 
reflect to changes in Sec. Sec.  2.810 and 171.16(c). The FY 2021 Small 
Entity Compliance Guide is available as indicated in the ``Availability 
of Documents,'' section of this document.

XIII. Availability of Documents

    Documents identified in the following table are available to 
interested persons through one or more of the following methods, as 
indicated.

------------------------------------------------------------------------
                                          ADAMS accession No./web link/
                Document                    Federal Register Citation
------------------------------------------------------------------------
Public Law (Pub. L.) 115-324, ``Small    https://www.congress.gov/115/
 Business Runway Extension Act of         plaws/publ324/PLAW-
 2018''.                                  115publ324.pdf.
NRC Size Standard for Making             50 FR 50241.
 Determinations Required by the
 Regulatory Flexibility Act of 1980
 (December 9, 1985).
Revision of Fee Schedules; 100 Percent   56 FR 31507.
 Fee Recovery (July 10, 1991).
NRC Form 526, ``Certification of Small   https://www.nrc.gov/reading-rm/
 Entity Status for the Purposes of        doc-collections/forms/
 Annual Fees Imposed under 10 CFR Part    nrc526.pdf.
 171''.
Receipts-Based, Small Business Size      77 FR 39385.
 Standard; Direct Final Rule (July 3,
 2012).
Revision of Fee Schedules; Fee Recovery  78 FR 39479.
 for Fiscal Year 2013 (July 1, 2013).
Survey of NRC's Materials Licensees....  85 FR 6225.
Small Business Size Standards:           84 FR 66561.
 Calculation of Annual Average
 Receipts; Final Rule (December 5,
 2019).
Small Business Size Standards:           84 FR 34261.
 Adjustment of Monetary-Based Size
 Standards for Inflation.
Receipts-Based NRC Size Standards;       86 FR 39980.
 Proposed Rule (July 26, 2021).
SECY-20-0111, ``Rulemaking Plan to       ML20268B327.
 Amend the Receipts-Based NRC Size
 Standards (NRC-2014-0264).

[[Page 8946]]

 
FY 2021 U.S. Nuclear Regulatory          ML21105A750.
 Commission Small Entity Compliance
 Guide.
------------------------------------------------------------------------

List of Subjects

10 CFR Part 2

    Administrative practice and procedure, Antitrust, Byproduct 
material, Classified information, Confidential business information, 
Environmental protection, Freedom of information, Hazardous waste, 
Nuclear energy, Nuclear materials, Nuclear power plants and reactors, 
Penalties, Reporting and recordkeeping requirements, Sex 
discrimination, Source material, Special nuclear material, Waste 
treatment and disposal.

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 amending 
10 CFR parts 2 and 171 as follows:

PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE

0
1. The authority citation for part 2 continues to read as follows:

    Authority:  Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 
102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 
U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 
2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy 
Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846); 
Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 
U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act 
(5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy 
Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.
    Section 2.205(j) also issued under 28 U.S.C. 2461 note.


0
2. In Sec.  2.810, revise paragraphs (a)(1) and (b) to read as follows:


Sec.  2.810  NRC size standards.

* * * * *
    (a) * * *
    (1) Concern that provides a service or a concern not engaged in 
manufacturing with average gross receipts of $8.0 million or less over 
its last 5 completed fiscal years; or
* * * * *
    (b) A small organization is a not-for-profit organization which is 
independently owned and operated and has annual gross receipts of $8.0 
million or less.
* * * * *

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. 2215; 44 U.S.C. 3504 
note.


0
4. In Sec.  171.16, revise paragraph (c) to read as follows:


Sec.  171.16  Annual fees: Materials licensees, holders of certificates 
of compliance, holders of sealed source and device registrations, 
holders of quality assurance program approvals, and government agencies 
licensed by the NRC.

* * * * *
    (c) A licensee who is required to pay an annual fee under this 
section, in addition to 10 CFR part 72 licenses, may qualify as a small 
entity. If a licensee qualifies as a small entity and provides the 
Commission with the proper certification along with its annual fee 
payment, the licensee may pay reduced annual fees as shown in table 1 
to this paragraph (c). Failure to file a small entity certification in 
a timely manner could result in the receipt of a delinquent invoice 
requesting the outstanding balance due and/or denial of any refund that 
might otherwise be due. The small entity fees are as follows:

                        Table 1 to Paragraph (c)
------------------------------------------------------------------------
                                                          Maximum annual
                                                              fee per
             NRC small entity classification                 licensed
                                                             category
------------------------------------------------------------------------
Small Businesses Not Engaged in Manufacturing (Average
 gross receipts over the last 5 completed fiscal years):
    $555,000 to $8 million..............................          $4,900
    Less than $555,000..................................           1,000
Small Not-For-Profit Organizations (Annual Gross
 Receipts):
    $555,000 to $8 million..............................           4,900
    Less than $555,000..................................           1,000
Manufacturing Entities that Have An Average of 500
 Employees or Fewer:
    35 to 500 employees.................................           4,900
    Fewer than 35 employees.............................           1,000
Small Governmental Jurisdictions (Including publicly
 supported educational institutions) (Population):
    20,000 to 49,999....................................           4,900
    Fewer than 20,000...................................           1,000
Educational Institutions that are not State or Publicly
 Supported, and have 500 Employees or Fewer:
    35 to 500 employees.................................           4,900
    Fewer than 35 employees.............................           1,000
------------------------------------------------------------------------


[[Page 8947]]

* * * * *

    Dated: January 27, 2022.
    For the Nuclear Regulatory Commission.
Cherish K. Johnson,
Chief Financial Officer.
[FR Doc. 2022-03146 Filed 2-16-22; 8:45 am]
BILLING CODE 7590-01-P