[Federal Register Volume 59, Number 138 (Wednesday, July 20, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-17502]
Federal Register / Vol. 59, No. 138 / Wednesday, July 20, 1994 /
[[Page Unknown]]
[Federal Register: July 20, 1994]
VOL. 59, NO. 138
Wednesday, July 20, 1994
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 170 and 171
RIN: 3150-AF03
Revision of Fee Schedules; 100% Fee Recovery, FY 1994
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending the
licensing, inspection, and annual fees charged to its applicants and
licensees. The amendments are necessary to implement Public Law 101-
508, enacted November 5, 1990, which mandates that the NRC recover
approximately 100 percent of its budget authority in Fiscal Year (FY)
1994 less amounts appropriated from the Nuclear Waste Fund (NWF). The
amount to be recovered for FY 1994 is approximately $513 million.
EFFECTIVE DATE: August 19, 1994.
ADDRESSES: Copies of comments received and the agency workpapers that
support these final changes to 10 CFR Parts 170 and 171 may be examined
at the NRC Public Document Room at 2120 L Street, NW. (Lower Level),
Washington, DC 20555.
FOR FURTHER INFORMATION CONTACT: C. James Holloway, Jr., Office of the
Controller, U.S. Nuclear Regulatory Commission, Washington, DC 20555,
Telephone 301-415-6213.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Responses to Comments.
III. Final Action--Changes Included In The Final Rule.
IV. Section-by-Section Analysis.
V. Environmental Impact: Categorical Exclusion.
VI. Paperwork Reduction Act Statement.
VII. Regulatory Analysis.
VIII. Regulatory Flexibility Analysis.
IX. Backfit Analysis.
I. Background
Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990
(OBRA-90), enacted November 5, 1990, requires that the NRC recover
approximately 100 percent of its budget authority less the amount
appropriated from the Department of Energy (DOE) administered NWF for
FYs 1991 through 1995 by assessing fees. OBRA-90 was amended in 1993 to
extend the NRC's 100 percent fee recovery requirement through 1998.
The NRC assesses two types of fees to recover its budget authority.
First, license and inspection fees, established in 10 CFR Part 170
under the authority of the Independent Offices Appropriation Act
(IOAA), 31 U.S.C. 9701, recover the NRC's costs of providing
individually identifiable services to specific applicants and
licensees. The services provided by the NRC for which these fees are
assessed include the review of applications for the issuance of new
licenses or approvals, amendments to or renewal of licenses or
approvals, and inspections of licensed activities. Second, annual fees,
established in 10 CFR Part 171 under the authority of OBRA-90, recover
generic and other regulatory costs not recovered through 10 CFR Part
170 fees.
Subsequent to enactment of OBRA-90, the NRC published six final fee
rules after evaluation of public comments. On July 10, 1991 (56 FR
31472), the NRC published a final rule in the Federal Register that
established the Part 170 professional hourly rate and the materials
licensing and inspection fees, as well as the Part 171 annual fees, to
be assessed to recover approximately 100 percent of the FY 1991 budget.
In addition to establishing the FY 1991 fees, the final rule
established the underlying basis and methodology for determining both
the 10 CFR Part 170 hourly rate and fees and the 10 CFR Part 171 annual
fees. The FY 1991 rule was challenged in Federal court by several
parties. The U.S. Court of Appeals for the District of Columbia Circuit
rendered its decision on those challenges on March 16, 1993, in Allied-
Signal v. NRC, remanding two issues to the NRC for further
consideration (988 F.2d 146 (D.C. Cir. 1993)). The court decision was
also extended to cover the FY 1992 fee rule by court order dated April
30, 1993.
On April 17, 1992 (57 FR 13625), the NRC published in the Federal
Register two limited changes to 10 CFR Parts 170 and 171. The limited
changes became effective May 18, 1992. The limited change to 10 CFR
Part 170 allowed the NRC to bill quarterly for those license fees that
were previously billed every six months. The limited change to 10 CFR
Part 171 lowered in some cases the maximum annual fee of $1,800
assessed a materials licensee who qualifies as a small entity under the
NRC's size standards. A lower tier small entity fee of $400 per
licensed category was established for small business and non-profit
organizations with gross annual receipts of less than $250,000 and
small governmental jurisdictions with a population of less than 20,000.
On July 23, 1992 (57 FR 32691), and July 20, 1993 (58 FR 38666),
the NRC published final rules in the Federal Register that established
the licensing, inspection, and annual fees necessary for the NRC to
recover approximately 100 percent of its budget authority for FY 1992
and FY 1993 respectively. The basic methodology used in the FY 1992 and
FY 1993 final rules was unchanged from that used to calculate the 10
CFR Part 170 professional hourly rate, the specific materials licensing
and inspection fees in 10 CFR Part 170, and the 10 CFR Part 171 annual
fees in the final rule published July 10, 1991 (56 FR 31472). The
methodology for assessing low-level waste (LLW) costs was changed in FY
1993 in response to the judicial decision mentioned earlier. This
change was explained in detail in the FY 1993 final rule published July
20, 1993 (58 FR 38669-72). In brief, the NRC created two groups--large
waste generators and small waste generators. Licensees within each
group are charged a uniform flat fee.
On March 17, 1994 (59 FR 12539), the NRC reinstated the annual fee
exemption for nonprofit educational institutions after notice and
comment. In response to the March 16, 1993, judicial decision, the
exemption had been eliminated in the final rule published by NRC on
July 20, 1993 (58 FR 38666).
The American College of Nuclear Physicians and the Society of
Nuclear Medicine filed a Petition for Rulemaking which included a
request that the Commission exempt medical licensees from fees for
services provided in nonprofit institutions. The Commission denied that
request on March 17, 1994 (59 FR 12555).
Section 2903(c) of the Energy Policy Act of 1992 required the NRC
to undertake a broad review of its annual fee policies under Section
6101(c) of OBRA-90, solicit public comment on the need for policy
changes, and recommend changes in existing law to the Congress that the
NRC found were needed to prevent the placement of an unfair burden on
certain NRC licensees. To comply with the Energy Policy Act
requirements, the NRC reviewed more than 500 public comments submitted
in response to the request for comment published in the Federal
Register on April 19, 1993 (58 FR 21116), and sent its report to
Congress on February 23, 1994. A copy of this report has been placed in
the Public Document Room.
On May 10, 1994 (59 FR 24065), the NRC published its proposed rule
for FY 1994 establishing the licensing, inspection, and annual fees
necessary for the NRC to recover approximately 100 percent of its
budget authority for FY 1994, less the appropriation received from the
NWF. The basic approach, policies, and methodology used in the proposed
rule were unchanged from those used to calculate the 10 CFR part 170
professional hourly rate, the specific materials licensing and
inspection fees in 10 CFR part 170, and the 10 CFR part 171 annual fees
set forth in the final rules published July 10, 1991 (56 FR 31477),
July 23, 1992 (57 FR 322691), and July 20, 1993 (58 FR 38666), with the
following exceptions: (1) The Commission has reinstated the annual fee
exemption for nonprofit educational institutions; and (2) in this final
rule, the NRC has directly assigned additional effort to the reactor
and materials programs for the Office of Investigations, the Office of
Enforcement, the Advisory Committee on Reactor Safeguards, and the
Advisory Committee on Nuclear Waste. Resources for these activities had
previously been included in overhead, but are now assigned directly to
the class of licensees that they support. Because this direct
assignment results in a reduction of overhead costs allocated to each
FTE, the cost per FTE is about 3 percent less than it would have been
without the additional direct assignment.
On May 19, 1994 (59 FR 26097) the NRC amended its fee regulations
in 10 CFR part 171 to establish revised FY 1991 and FY 1992 surcharges
for NRC licensees. The revised surcharges reflect the revised method of
allocating low-level waste (LLW) costs adopted by the Commission in the
FY 1993 final fee rule published July 20, 1993 (58 FR 38666). Refunds/
credits totalling $2.2 million will be given to certain NRC materials
licensees as a result of the revised surcharges for FY 1991 and FY
1992.
II. Responses to Comments
The NRC received thirty-three comments on the proposed rule.
Although the comment period ended on June 9, 1994, the NRC has reviewed
and evaluated all comments received. Copies of all comment letters
received are available for inspection in the NRC Public Document room,
2120 L Street, NW (lower level) Washington, DC.
Many of the comments were similar in nature. For evaluation
purposes, these comments have been grouped, as appropriate, and
addressed as single issues in this final rule. The comments are as
follows:
A. Fee Legislation
1. Comment. Several commenters noted that NRC had completed its
report on fee policy mandated by the Energy Policy Act of 1992 and had
sent a report to Congress with legislative recommendations. They
expressed their agreement with the legislative recommendation in the
report that OBRA-90 be amended to relax the requirement to recover 100
percent of its budget and remove certain costs from the fee base,
thereby eliminating many of the burdens they deem to be inequitable.
They urged the NRC to work with Congress to modify OBRA-90 to make the
assessment of fees more equitable across the board.
Response. The need for legislation is beyond the scope of this
rulemaking proceeding. The NRC will continue to work with Congress on
fee issues.
2. Comment. Several commenters stated that it is very important for
the NRC to control its internal costs in order for the nuclear industry
to be successful in reducing overall program costs. One commenter
suggested that the NRC consider staff reductions and other management
improvements to reduce budget needs based on a decline in the number of
materials licensees.
Another commenter commended the NRC on its willingness and ability
to hold the line on, and indeed reduce, its recoverable budget for FY
1994. While noting that the proposed FY 1994 annual fees for power
reactors are lower than those assessed in FY 1993, commenters from
utility licensees or their representatives believe that further
reductions are possible, especially in the areas where power reactor
licensees are required to unfairly subsidize cost recovery for
activities that benefit all licensees or for activities that are
unrelated to the power reactor class of licensees. While encouraged by
the recent recommendations for legislative changes made by the NRC to
Congress in the report required by the Energy Policy Act of 1992,
commenters recommended that NRC consider the following actions it can
take now without waiting for legislative changes:
(1) Reduce costs by eliminating or deferring lower priority
research and generic rulemaking activity;
(2) Reduce the amount to be collected under part 171 by increasing
part 170 licensing and inspection fees;
(3) Raise the lower tier small entity fee; and
(4) Use an annual escalation, e.g., CPI or some equivalent index,
of small entity fee limits which have stayed at $400 and $1,800 since
they were set two years ago.
Response. The NRC is working to improve the internal efficiency and
effectiveness of its program as a means of controlling operating costs
and, therefore, keeping fees billed to licensees as low as practicable.
Economies have been achieved through the elimination of the NRC's
uranium recovery field office in Denver, Colorado and consolidating the
agency's two smallest regional offices--Regions IV and V. The NRC is
tightening its financial operations by increasing the effectiveness and
efficiency of its program financing. As a result of these efforts, the
NRC proposed and Congress approved a $12.7 million recision (reduction)
to the original appropriation enacted for FY 1994. Therefore, the total
amount to be recovered from fees from all classes of licensees in FY
1994 is about $6 million less than the amount to be recovered in FY
1993.
The Chief Financial Officers Act (CFO) requires that the NRC
conduct a biennial review of fees and other charges imposed by the
Agency for its services and revise these charges to reflect the costs
incurred in providing those services. The 10 CFR Part 170 licensing and
inspection fees were increased significantly for some materials
licenses in FY 1993 as a result of the first CFO biennial review. The
10 CFR Part 170 fees for FY 1995 will be revised to reflect the results
of the second CFO review.
On April 7, 1994 (59 FR 16513), the Small Business Administration
(SBA) issued a final rule changing its size standards. This rule
increased the receipts-based SBA size standards due to inflation. The
NRC is considering proposing amendments to the NRC size standards that
would reflect the SBA action. Any amendments to the NRC size standards
will be submitted to SBA for approval and published in the Federal
Register for public notice and comment as required by the Small
Business Credit and Business Opportunity Enhancement Act of 1992 (Pub.
L. 102-366). The NRC will reexamine the annual fees assessed for small
entities once the NRC completes its evaluation of the NRC size
standards, which is expected to be done in FY 1995.
The NRC in this final FY 1994 fee rule is continuing a maximum
annual fee of $1,800 and $400 per licensed category, respectively, for
those licensees who can qualify as small entities under NRC size
standards. The impact of the fees for FY 1994 on small entities has
been evaluated in the Regulatory Flexibility Analysis (see Appendix A
of this final rule). The small entity subsidy in this final fee rule
has been calculated on that basis.
B. Fee Methodology
1. Hourly Rate
Comment. Several commenters indicated that the hourly rate of $133
is excessive and cannot be justified. These commenters noted that the
rate is considerably higher than the typical industry charge-out rate
for direct employees and equals or exceeds the hourly charges for
senior consultants at major national consulting organizations. Other
commenters supported the proposed removal of costs for the Office of
Investigations, the Office of Enforcement, the Advisory Committee on
Reactor Safeguards, and the Advisory Committee on Nuclear Waste from
overhead and their direct assignment to the reactor and materials
programs. Commenters stated that this is an improvement in that it
better defines the beneficiaries of certain regulatory activities and
more equitably allocates the fees for services provided.
Response. As indicated in previous final rules, the NRC
professional hourly rate is established to recover approximately 100
percent of the agency's Congressionally approved budget, less the
appropriation from the NWF, as required by OBRA-90. Both the method and
budgeted costs used by the NRC in the development of the hourly rate of
$133 for FY 1994 are discussed in detail in Part III, Section-by-
Section Analysis, for Sec. 170.20 of the proposed rule (59 FR 24069;
May 10, 1994) and the same section of this final rule. For example,
Table II shows the direct FTEs (full time equivalents) by major program
for FY 1994 and Table III shows the budgeted costs (salaries and
benefits, administrative support, travel and other G&A contractual
support) that must be recovered through fees assessed for the hours
expended by the direct FTEs. As indicated in the proposed rule and
supported by the commenters, the NRC has directly assigned additional
effort to the reactor and materials programs for the Office of
Investigations, the Office of Enforcement, the Advisory Committee on
Reactor Safeguards, and the Advisory Committee on Nuclear Waste.
Resources for these activities had previously been included in overhead
but are now directly assigned to the class of licensees they support.
This change results in the increase in the hourly rate being less than
it would have been otherwise. Given the increase in the costs to be
recovered through the hourly rate, including increases in the cost of
doing business (e.g., inflation), it is necessary to increase the 1994
hourly rate by less than one percent to recover 100 percent of the
budget as required by OBRA-90. The specific details regarding the
budget for FY 1994 are documented in the NRC's publication ``Budget
Estimates, Fiscal Year 1994'' (NUREG-1100, Volume 9). Copies of NUREG-
1100, Vol. 9 may be purchased from the Superintendent of Documents,
U.S. Government Printing Office, Mail Stop SSOP, Washington, DC 20402-
9328. Copies are also available from the National Technical Information
Service, 5285 Port Royal Road, Springfield, VA 22161. A copy is also
available for inspection and copying for a fee in the NRC Public
Document Room, 2120 L Street, NW (Lower Level), Washington, DC 20555-
0001.
2. Fees Based on Other Factors
Comment. As in FYs 1991-1993, commenters indicated that NRC should
assess fees based on the amount or type of material possessed, the
number of radioactive sources, the sales generated by the licensed
location, the competitive condition of certain markets and the effect
of fees on domestic and foreign competition.
Response. The issues of basing fees on the amount of material
possessed, the frequency of use of the material, the size of the
facilities, and market competitive positions, was addressed by the NRC
in previous rules and in the Regulatory Flexibility Analysis in
Appendix A to the final rule published July 10, 1991 (56 FR 31511-
31513). The NRC did not adopt that approach because it would require
licensees to submit large amounts of new data and would require
additional NRC staff to evaluate the data submitted and to develop and
administer even more complex fee schedules. The NRC continues to
believe that uniformly allocating the generic and other regulatory
costs to the specific licensee within a class to determine the amount
of the annual fee is a fair, equitable, and practical way to recover
those costs and that establishing reduced annual fees based on gross
receipts (size) is the most appropriate approach to minimize the impact
on small entities. Therefore, NRC finds no basis for altering its
approach at this time. This approach was upheld by the D.C. Circuit in
its March 16, 1993, decision in Allied-Signal.
3. High-Level Waste
Comment. One commenter stated that the Department of Energy (DOE)
should pay, through user fees, for NRC's costs related to DOE's high-
level waste (HLW) activities at Yucca Mountain.
Response. All of NRC's direct costs related to the disposal of
civilian high-level waste in DOE's geologic repository are paid for
with funds appropriated from the Nuclear Waste Fund (NWF). For FY 1994,
the budgeted amount appropriated to the NRC from the NWF is about $22
million. The amount appropriated from the NWF is subtracted from the
total NRC appropriation, and is therefore not included in the fee base.
This is shown in Table I. Thus, no NRC fees are assessed to recover the
direct HLW costs.
C. Specific Fee Issues--Part 170
1. Fees for Special Projects.
Comment. Several commenters supported the proposed change in 10 CFR
part 170 special project fees whereby the definition would be revised
to indicate that 10 CFR part 170 fees will not be assessed for certain
reports submitted to the NRC. Rather, commenters point out these costs
are more appropriately assessed as 10 CFR part 171 annual fees because
the related activities are in support of generic efforts such as
development of regulatory guidance applicable to a class of licensees.
One commenter, while supporting the proposed change, stated that the
terms ``alternate method'', ``reanalysis'', and ``unreviewed safety
issue'' are imprecise and should be further defined or explained.
Another commenter requested that the NRC reinstate a fee ceiling for
topical report reviews. The commenter indicated that a fee ceiling
would encourage the submittal of topical reports and contribute to the
advance of the state-of-the-art in the nuclear industry and resultant
improvement in nuclear plant safety.
Response. The NRC has revised the definition of special projects as
provided in Sec. 170.3 of the regulations to indicate that 10 CFR part
170 fees will not be assessed for certain requests/reports. Based on a
commenter's suggestion, the terms ``alternate method'', ``reanalysis'',
and ``unreviewed safety issue'' have been further explained in section
IV, Section-by-Section Analysis.
The NRC indicated in the FY 1991 final fee rule that it had decided
to eliminate the ceiling for topical report reviews based on the 100
percent recovery requirement and congressional guidance that each
licensee or applicant pay the full costs of all identifiable regulatory
services received from the NRC. Further, the NRC costs for topical
reports reviews vary significantly depending on the particular topical
report reviewed. This makes it impractical to establish an equitable
ceiling or flat fee (56 FR 31478; July 10, 1991). Recently, the
Commission revisited this issue as part of its review of fee policy
that was required by EPA-92. The policy of assessing 10 CFR part 170
fees, without a ceiling, for the review and approval of topical reports
was reconfirmed. For these reasons, the NRC is not establishing a fee
ceiling for topical reports in this final rule.
2. Fees for Reciprocity
Comment. The NRC charges Agreement State licensees who provide
services in non-Agreement States, ``reciprocity fees''. A few
commenters indicated that they were opposed to the fees for
reciprocity, particularly the proposed fees for revisions to
information submitted on the NRC Form-241 filed by 10 CFR 150.20
general licensees. They stated that fees are an unnecessary burden and
suggested that the NRC reconsider its decision to increase the current
fees and add additional charges for reciprocity licensees. They stated
that these costs would have to be included in proposals for work in
non-Agreement States and that, as small firms, they could not absorb
such costs and remain competitive with larger firms offering similar
services. One commenter suggested that the fee for revisions to NRC
Form 241 be established at $25 to $50 per revision rather than $200 as
proposed. Commenters questioned whether the establishment of the
reciprocity fees is an effort to restrict survey activities to the
home-State of the company because the additional costs do not make it
feasible to even consider bidding for projects out of the state.
Commenters claimed that this allows larger, wealthier companies the
opportunity to bid for and secure out-of-state work. Other commenters
supported the reciprocity fees, including the proposed fees for
revisions. They encouraged NRC to assess fees for services provided
specific classes of licensees and to reduce the costs classified as
overhead.
Response. The NRC is adopting the approach contained in the
proposed rule as this is consistent with the Congressional mandate
that, to the extent practicable, a class of licensees bear the costs of
providing regulatory services to them. Other approaches suggested by
commenters would have the effect of shifting the costs of reviewing
revisions to Form 241 to other classes of licensees. Agreement State
licensees requesting reciprocity for activities conducted in non-
Agreement States or in offshore waters are subject to 10 CFR 150.20.
The first time within a calendar year that an Agreement State licensee
conducts activities in non-Agreement States or in offshore waters, it
must file a completed NRC Form 241. Revisions to the initial NRC Form
241 are filed for review and authorization when persons using the 10
CFR part 150.20 general license either add locations of work, use
different radioactive material or perform additional work activities in
a non-Agreement State. Information submitted to the NRC by the 10 CFR
150.20 general licensee that clarifies or deletes specific locations or
work sites, work site contacts, or dates of work is considered by the
NRC to be a clarification, not a revision. Changes in the equipment to
be used under the 10 CFR 150.20 general license do not require a
revision if there is no change in (1) activity to be conducted, (2) the
radioactive material to be used, and (3) if the Agreement State license
authorizes the new equipment.
The fee of $700 for the initial filing of Form-241 is the same as
that assessed in FY 1993. The fee of $200 for revisions to the Form-241
has been added to this final rule. The reciprocity fees established by
the NRC are not intended to restrict companies from doing work in non-
Agreement States. The fees will allow the NRC to recover the costs it
expends in reviewing initial applications and revisions filed by 10 CFR
part 150.20 general licensees. That is, the fee is intended to recover
the cost of identifiable services to a specific applicant in accordance
with OBRA-90 and the IOAA. Fee Category 16 of 10 CFR part 170.31 has
been revised to add a fee of $200 for each revision filed by Agreement
State licensees. The revision fee will be due at the time the applicant
files a revision to information submitted on the initial Form-241 with
the NRC.
3. Fees for Irradiators
Comment. One commenter indicated that underwater irradiators should
not be placed, for fee purposes, in fee Categories 3F and 3G, the same
category as ``panoramic'' or ``cell'' type irradiators, because the
amount of regulation pertaining to unshielded source irradiators is
much greater than that which applies to underwater irradiators. The
commenter believes the license should be classified as Category 3E, a
self-shielded irradiator. The commenter states that the relative
complexity of the two designs dictates that this be the case.
Therefore, licensing, inspection, and other NRC activities dealing with
underwater irradiators must consume much less time and effort compared
to their ``cell'' or ``panoramic'' counterparts.
Response. The Commission will continue to place underwater
irradiators in fee Categories 3F and 3G. Although the sources are not
removed from their shielding for irradiator purposes, underwater
irradiators are not self-shielded as are the small irradiators in fee
Category 3E. The underwater irradiators are large irradiators and
possession limits of thousands of curies are authorized in the license.
As a result, more regulatory effort is required to regulate underwater
irradiators than is required to regulate the small irridiators in fee
Category 3E. For example, the provisions of 10 CFR part 36 apply the
same requirements to both the underwater irradiators where the source
is not exposed for irradiation and the exposed source irradiators. The
average cost of conducting license reviews and performing inspection of
the underwater irradiators where the source remains shielded during
irradiation are similar to the costs for irradiators where the source
is exposed during irradiation.
D. Specific Fee Issues--Part 171
1. Exemption From Fees for State-Owned Reactors.
Comment. Several commenters supported the proposed exemption from
annual fees for State-owned research reactors. These commenters
indicated that the reactors are used primarily for educational training
and academic research purposes and contribute significantly to the
national research effort and thereby provide significant externalized
benefits to society.
Response. The NRC, in this final rule, will amend both
Secs. 170.11(a) and 171.11(a)(2) to provide that State-owned research
reactors used primarily for educational training and academic research
purposes will be exempt from fees. The proposed rule would have amended
only 10 CFR part 171. The NRC believes that both of these changes are
consistent with the legislative intent of the Energy Policy Act of 1992
that government-owned research reactors be exempt from fees if they
meet the technical design criteria of the exemption and are used
primarily for educational training and academic research purposes.
2. Annual Fee for Uranium Recovery Facilities
Comment. While supporting the NRC's proposed first-time assessment
of a $1.5 million annual fee to the Department of Energy (DOE) for
Uranium Mill Tailing Control Act (UMTCA) activities, several commenters
strongly objected to the proposed annual fees for uranium recovery
licensees. They agree that the NRC should be reimbursed by the
collection of reasonable fees commensurate with services provided but
indicated that the proposed fees are not equitable or reasonable and
have not been implemented in a fair and equitable manner. They believe
that the Class I fees for mill licensees are entirely disproportionate
to the degree of NRC's involvement with the uranium recovery sites.
Commenters indicated that the large increases in fees for FY 1994
(approximately $36,000 per mill) demonstrate again the inconsistent and
fluctuating nature of the NRC fee system. These licensees asserted that
they have no means of anticipating or budgeting for the fees and
therefore large increases are unacceptable. One commenter stated that
the NRC's argument that the fees have increased because the initial
licensing of Envirocare's 11.e(2) facility is complete is irrelevant
and without merit because Envirocare's license is a Class 4D byproduct
disposal facility and not a uranium recovery license. Commenters note
that while the amount to be recovered from uranium recovery licenses
was $465,000 for FY 1993, the amount to be recovered for FY 1994
increased to $2.1 million--a 350 percent increase. Commenters state
that regulatory services to the industry have not increased from FY
1993 to FY 1994. Commenters find this situation particularly troubling
as they believe the costs for uranium recovery facilities should have
decreased with the closure of the Uranium Recovery Field Office (URFO)
in Denver, Colorado, which was described by NRC ``as a cost reduction
measure to uranium recovery licensees''.
One commenter argues that the annual fee of $8,700 for a Category
4D license is not justified when one considers the fee of $94,300 for a
mill license, a difference of $85,600. The commenter states that this
disparity is so great that it cannot be explained as anything short of
arbitrary and capricious. The commenter asserted that to be equitable,
Category 4D licenses should be assessed the same fees as a mill in fee
Category 2.A.(1), Class I, because commercial byproduct disposal sites
are analogous to uranium recovery tailings impoundments and essentially
require the same regulatory oversight.
One commenter was concerned that the new fees collected from DOE
will not be used to decrease the fees placed on other uranium recovery
licensees.
Response. Contrary to the commenter's claim, the total budget
authority to be recovered through fees from Title II uranium recovery
licensees has decreased over the past two years. The following table
shows the NRC budget authority for Title II uranium recovery licensees
for FY 1992, FY 1993, and FY 1994.
------------------------------------------------------------------------
Dollars in thousands
Title II facilities -----------------------------
FY 1992 FY 1993 FY 1994
------------------------------------------------------------------------
Total Budget Authority.................... $3,668 $3,065 $2,839
Less 10 CFR Part 170 Fees................. -1,700 -2,600 -2,200
-----------------------------
Total Annual Fees..................... 1,968 465 639
------------------------------------------------------------------------
As shown above, the NRC total budget authority for commercial
uranium recovery licensees has steadily decreased from $3,668,000 in FY
1992 to $2,839,000 in FY 1994, a 23 percent decrease since FY 1992.
However, because of the relatively large collection of 10 CFR Part 170
fees in FY 1993 as a result of the NRC licensing review efforts
associated with the Envirocare license application, the FY 1993 amount
of $465,000 to be collected through annual fees is $174,000 less than
the FY 1994 annual fee amount of $639,000. In FY 1993, the NRC
estimated that approximately $2.6 million would be collected from 10
CFR 170 fees, including fees for the major review work for the
Envirocare 11.e(2) license. The Envirocare license was issued on
November 19, 1993. Therefore, the 10 CFR Part 170 fees estimated to be
collected in FY 1994 have decreased.
Another reason for the increase in FY 1994 annual fees for
commercial uranium recovery licensees is a reduction in the number of
licensees. In FY 1993 there were 14 uranium recovery licensees subject
to annual fees, compared with 12 licensees in FY 1994. This is a
decrease of 2 licensees (or 14 percent). Because costs are allocated to
a class of licensees, any terminations that occur within the class will
raise the annual fees for the remaining licensees within that class in
order for the NRC to collect approximately 100 percent of its budget in
fees. The generic and other regulatory costs allocated to a class of
licensees under 10 CFR Part 171 are not dependent on the number of
licensees in a class.
While the total amount of annual fees to be recovered from all
uranium recovery licensees, commercial (Title II) and DOE (Title I) is
$2.1 million in FY 1994, $1.5 million of this amount is for DOE Uranium
Mill Tailing Control Act (UMTRCA) activities. The $1.5 million related
to DOE UMTRCA activities is being paid by DOE in FY 1994, leaving the
$0.6 million to be paid by the commercial Title II facilities. The
budget for DOE UMTRCA activities does not affect commercial uranium
recovery license fees in FY 1994, nor did it affect their fees prior to
FY 1994. As noted by the commenters, DOE is being assessed a $1.5
million annual fee in FY 1994 (10 CFR 171.16(d), fee Category 18b). For
FYs 1991-1993, the costs for DOE UMTRCA activities were assessed to
operating power reactors as a surcharge because DOE was not an NRC
licensee (10 CFR 171.15(c)(2)). In FY 1994, the costs for UMTRCA
activities were moved from the power reactor class of licensees to the
uranium recovery class because as of September 21, 1993, DOE became a
general licensee of the NRC (10 CFR 40.27) because post-reclamation
closure of the Spook, Wyoming site had been achieved. As a result, DOE
will be billed for the costs ($1.5 million in FY 1994) associated with
NRC's UMTRCA review and all activities associated with the facilities
assigned to DOE under UMTRCA.
The statement made by a commenter that fees collected from DOE will
not be used to decrease NRC's license fees is not correct. The $1.5
million to be collected from DOE will not be assessed to operating
power reactors who have paid these costs since FY 1991. Therefore, the
fees for operating power reactors will decrease as a result of the
reallocation of costs.
Based on the comments regarding the annual fee for licenses
authorizing the disposal of 11e.(2) byproduct material, the NRC has
reexamined its allocation of the budget for Title II uranium recovery
activities. Based on this reexamination and the comments received, the
NRC has concluded that the part of the budgeted costs for the uranium
recovery class of licensees should be allocated to licenses that
authorize receipt and disposal of 11e.(2) byproduct material, because
some of these budgeted resources are used to regulate these licensees.
Thus, the $639,000 to be recovered in annual fees will be recovered
from fee category 2.A.(2) Class I facilities, Class II facilities and
Other facilities, plus licenses authorizing disposal of 11e.(2)
byproduct material. Additionally, the Commission has determined that
for licenses issued for the primary purpose of disposal of 11e.(2)
byproduct material (e.g., the license issued to Envirocare in FY 1994)
the annual fee should be 90 percent of the fee for a Class I mill. This
is based on a determination that an estimated 90 percent of the budget
for regulating Class I mills is related to the mill tailings and the
remaining 10 percent to the processing of the ore. Therefore, since
essentially the same regulations apply to the mill tailings generated
by a Class I mill and the 11e.(2) byproduct material received by a
licensee whose primary purpose is to dispose of 11e.(2) byproduct
material, the annual fee for a licensee whose primary purpose is the
disposal of 11e.(2) byproduct material should be the same as that
portion (90 percent) of the annual fee for a Class I facility that is
related to the mill tailings. The annual fee for non-operating mills
that accept 11e.(2) byproduct material for disposal in tailings piles
created by mill operations will not be changed, because such disposal
is incidental to the existing tailings that were generated prior to
elimination of the mill's authority to operate and the Commission's
policy is not to assess an annual fee to non-operating facilities. As a
result of the above changes the base annual fee for a Class I facility
will be reduced from $94,300 to $74,500 for FY 1994. The annual fee for
licenses with the primary purpose of disposal of 11e.(2) byproduct
material will be $67,000.
3. Annual Fee for Fuel Facilities
a. Comment. Two commenters objected to the proposed
reclassification of General Atomics' (GA) special nuclear material
license from one subclass to another. Commenters indicated that such a
reclassification, with the attendant increase in annual fees, would
have the further effect of forcing GA to shut down the manufacture of a
limited number of TRIGA research reactor fuel elements, thereby
eliminating any U.S. source for this type of reactor fuel. Commenters
argued that the licensee is not a ``fuel facility'' in the same sense
as other fee Category 1.A.(1) licensees, in that all of the licensees
in fee Category 1.A.(1) are large suppliers of light water reactor fuel
to the commercial power industry or the U.S. Navy. Commenters stated
that reclassifying the license is inconsistent with the NRC's stated
underlying basis of charging a class of licensees for NRC costs
attributable to that class of licensees particularly when one
considers, for comparison purposes, the special nuclear material (SNM)
throughput, facility size, employment numbers, complexity of processes,
chemical/physical forms of SNM, and number of process steps. Commenters
therefore concluded that the GA license should not be reclassified.
General Atomics, whose license is to be reclassified, commented
that after three years of being classified as a fee Category 1.A.(2)
licensee, there is no justification for suddenly reclassifying the
license as a fee Category 1.A.(1) fuel facility, because there has been
no change of any kind in the activities or licensing status since 1991
that would warrant reclassification of the facility. GA also contends
that it is unfair to reclassify the license after the beginning of the
fiscal year and to impose more than an eight-fold increase in the fee
associated with the new category without the licensee having the
opportunity to take licensing action to avoid the fee. GA states that
when the initial rule for 100 percent recovery was published in FY
1991, the NRC recognized that many licensees might wish to avoid or
minimize the fees by terminating or modifying their licenses, and for
that reason provided a 30-day period before the effective date of the
rule for a licensee to file a request to terminate the license or
request a possession-only license and thereby avoid paying the annual
fee. GA also stated that imposition of the proposed fee would force
them to significantly raise its unit fuel prices to recover the eight-
fold fee increase and that many of its customers for research reactor
fuel are typically low-budget research facilities such as university
research reactors, many of which are operated by nonprofit educational
institutions.
Response. The NRC established fuel facilities as a separate class
of licensees in FY 1991. Within the class, there are four subclasses of
licensees described in 10 CFR 171.16(d): high-enriched uranium (HEU)
fuel fabrication, low-enriched uranium (LEU) fuel fabrication, all
other materials licenses authorizing critical quantities of special
nuclear material, and UF6 converters. One of the questions raised
by the commenters is whether GA license SNM-696 should be placed in the
LEU fuel fabrication facility subclass (fee category 1.A.(1)) or the
other facility subclass authorizing critical quantities of special
nuclear material (fee category 1.A.(2)). Fee Category 1.A.(1) of 10 CFR
171.16(d) is intended to cover those licenses that authorize the
possession and use of uranium 235 or plutonium for fuel fabrication
activities. In the proposed rule for FY 1994, the NRC concluded that
license SNM-696, held by GA, would be reclassified from fee Category
1.A.(2) (all other materials licenses authorizing critical quantities
of special nuclear material) to fee Category 1.A.(1) (a low-enriched
fuel fabrication facility). This reclassification is based on the fact
that (1) the license authorizes the possession and use of uranium 235
for fuel fabrication activities and (2) GA manufactures TRIGA research
reactor fuel elements using low-enriched fuel. As a result, the proper
classification for license SNM-696 is fee category 1.A.(1) (low-
enriched fuel fabrication). In the past, this license was improperly
categorized by NRC and as a result, General Atomics was assessed
substantially lower fees over the past three years than it should have
been. Rather than continue using an incorrect fee classification for
this license, now that the NRC is aware of its administrative error,
this final rule places the license in its proper fee category. The NRC
recently addressed a similar classification issue in response to a
Babcock and Wilcox (B&W) request that their LEU fuel fabrication
facility be reclassified from fee category 1.A.(1) (LEU facility) to
fee category 1.A.(2) (all other materials licenses authorizing critical
quantities of special nuclear material). On January 7, 1994, the NRC
denied this request for reasons similar to those stated above for the
General Atomics license.
The other question raised by the commenter is whether the fee for
the GA license should be the same as the other LEU fuel fabrication
licenses because their fuel and process is different. That is, would
assessing GA the same fee as other LEU fuel fabrication licensees
represent a disproportionate allocation of costs to GA. B&W has also
raised similar questions relative to their LEU facility. The NRC is
considering B&W's request for a partial exemption from annual fees
under 10 CFR 171.11(d). This request is currently under review. Some of
the comments received concerning the GA fuel facility are similar to
the arguments presented by B&W for an exemption. GA states that
``Reclassifying GA as a Category 1.A.(1) licensee is inconsistent with
the NRC's stated underlying basis of `charging a class of licensees for
NRC costs attributable to that class of licensees.' It asserts that by
any measure of comparison, e.g., SNM * * * complexity of processes,
chemical/physical forms of SNM, number of process steps, etc., GA's
licensed activities are nowhere close to being in the same class as the
licensees listed in Category 1.A.(1). GA's * * * licensed processes are
simple small batch-wise operations, there are no processes involving
solutions or powders (the fuel is a uranium-zirconium metal alloy), * *
*''
The NRC believes that consideration of GA's comment as a request
for an exemption under 10 CFR 171.11(d) is appropriate and supported by
Allied-Signal v. NRC. The Court there indicated that they saw no reason
to require the Commission to address rare situations in the rule
itself, especially since 10 CFR Part 171 provides for exemptions in
unusual circumstances. Therefore, the NRC intends to treat the unusual
circumstances discussed in GA's comments as an exemption request, which
it will address in the near future. The Commission notes, however, that
the exemption determination will not be based on factors associated
with size, ability to pay, or other economic factors. As stated in the
decision to reinstate the exemption from annual fees for non-profit
educational institutions, ability to pay is not a basis for an
exemption (59 FR 12539). The NRC also addressed these issues in the
Regulatory Flexibility Analysis in Appendix A to the final rule
published July 10, 1991 (56 FR 31511). The Commission indicated these
generally are not factors it will consider in setting fees and finds no
basis for altering its approach at this time.
Given the questions raised by B&W, GA, and other fuel facilities
regarding exemptions from fees and proper fee category classification,
the NRC plans to reexamine the fuel facility subclass categorizations.
Any restructuring that results from this reexamination will be included
in the proposed FY 1995 fee rule for notice and comment.
The NRC adopts General Atomics' suggestion that the NRC consider a
waiver of the FY 1994 annual fees if, within the 30-day period after
the NRC acts on their exemption request, it notifies the NRC in
writing, in accordance with 10 CFR 70.38, that it wishes to relinquish
the portion of their license permitting fabrication of fuel elements or
to obtain a POL. In order to be considered for the waiver of the FY
1994 annual fee, General Atomics must permanently cease fuel
fabrication activities within the 30-day period after NRC acts on the
exemption request.
With respect to the argument that reclassifying the license is
inconsistent with the NRC's stated underlying basis of ``charging a
class of licensees for NRC costs attributable to that class of
licensees'', costs for providing an identifiable service related to a
specific application, license or approval are recovered under the fee
regulations in 10 CFR Part 170. For generic and other regulatory costs
not recovered under 10 CFR 170, the NRC, in compliance with the
requirements of OBRA-90, has allocated these costs to major classes of
licensees. The law permits, and the NRC has established, a schedule of
annual charges in 10 CFR Part 171 that assesses different annual
charges to different licensees or classes of licensees. To the extent
practicable, and where necessary for a more fair and equitable
allocation of costs, a major class of licensees is divided into
subclasses. Within a class or subclass of licensees, the costs are
uniformly allocated to each licensee in the class or subclass based on
the premise that there is no significant difference in the generic and
other regulatory services provided to each licensee within a class or
subclass. This approach and principle are used for all classes of
licensees (57 FR 32693; July 23, 1992). The Commission has carefully
reviewed the costs allocated to the LEU fuel fabrication subclass and
concluded that the budgeted costs have been properly assigned to those
licensees within the subclass.
b. Comment. Commenters also objected to the increases in annual
fees for Category 1.A.(1) (low-enriched fuel facilities) and Category
1.A.(2), (other materials licenses authorizing critical quantities of
special nuclear material). Commenters indicated that the base fee for
low-enriched fuel facilities has increased from about $700,000 in FY
1991 to $1.4 million in FY 1994, while Category 1.A.(2) increased from
about $175,000 to $304,000 (including surcharge). These increases,
commenters claimed, place an undue hardship on the profitable operation
of these facilities and are grossly out of proportion to any warranted
increase in the effort expended by the NRC in regulating these classes
of licensees. One commenter stated that the NRC's practice of
retroactively revising annual fees causes major corporate budgeting
problems, especially when large increases between the originally
invoiced quarterly payments and actual annual fees are the result.
Response. The amount of the NRC's fees are based on the budget
authority for a class of licensees and do not consider impact on a
company's profitability. The NRC budgeted costs for this class of
licensees have increased because the NRC budgeted and the Congress
appropriated greater resources to regulate the safety and safeguards of
fuel facilities. Under the 100 percent recovery statute of OBRA-90,
charging this class of licensees fees that fail to recover the full
budgeted amount, would mean that other licensees must pay additional
fees which provide no benefit to them. NRC promulgates its final rules
as early as it can subject to certain time-sensitive constraints: the
NRC must receive a Congressionally approved budget, calculate the
numerous fees in question, issue a proposed rule for comment, evaluate
the comments, and issue a final fee rule.
c. Comment. One commenter, Allied-Signal (A-S), believed that the
costs allocated to the UF6 conversion subclass should be divided
equally between two licensees rather than one, even though the second
licensee has a possession only license (POL). A-S argued that the NRC
has not provided a rational basis for exempting that licensee from the
annual fee. A-S noted the NRC's policy that it is the existence of a
license, not operations, that determines allocation of costs for
recovery through the annual fee. A-S believes that a licensee that has
a license to operate but does not do so is no different from a licensee
that has operated, stops doing so, and holds a POL. A-S believes that,
in each case, the NRC's regulations are equally applicable and the
licensee benefits from them. A-S pointed out that it is the only entity
in the U.S. engaging in UF6 conversion operations and although it
has attempted to pass the cost of fees on to its customers, it has not
been able to do so on a broad-scale basis. A-S claimed that the
proposed fee would raise its costs by 6 cents per pound and that
winning bids from Canadian and European UF6 converters are decided
by as little as 1 cent per pound of UF6.
A-S also argued that the UF6 conversion license should be
removed from the fuel facility class of licensees and included in the
uranium recovery class because the operations of the UF6 converter
are more similar to those of a uranium mill than to a fuel facility.
Additionally, there is now only one UF6 converter in the U.S. and
a subcategory of one does not accurately reflect the relevant amount of
NRC's resources devoted to the license and for that reason is
inappropriate. Therefore, according to Allied-Signal, the annual fee is
not fairly and equitably allocated as required by OBRA-90, and does not
bear a reasonable relationship to the cost of providing regulatory
services, also required by the statute. A-S, therefore, believes the
resulting fee for UF6 converters is disproportionately higher than
that charged to licensees in the uranium recovery category and
disproportionately close to what is assessed to operating reactors.
Response. The NRC has a long-standing policy of not assessing
annual fees to those licensees who have indicated to the NRC that they
wish to amend their license to permanently withdraw authority to
operate and have been issued a possession only license (POL) (51 FR
33228; September 18, 1986). In FY 1991, the NRC reconsidered and
reaffirmed its policy that licensees with POLs would not be subject to
the annual fees when it initially established fees to recover 100
percent of its budget authority under OBRA-90 (56 FR 14873; April 12,
1991). Recently, the Commission revisited this issue as part of its fee
policy review required by EPA-92, and affirmed its decision to continue
the policy of not assessing annual fees to licensees when the license
is amended to authorize possession only or decommissioning. This is
consistent with the concept that those who benefit from a license that
authorizes operation or use of material should pay annual fees.
Therefore, consistent with agency policy included in the past fee
rules, and the FY 1994 proposed fee rule, the NRC will not assess FY
1994 annual fees to Sequoyah Fuels Corporation, previously a UF6
converter but now is not authorized to operate as a UF6 converter.
However, the NRC recognizes that its fee rule including this policy
could result in a disproportionate allocation of costs to a licensee in
unusual situations. Exemptions for such unusual circumstances are
provided for in 10 CFR 171.11(d) and are supported by Allied-Signal v.
NRC. The NRC concludes that the issues raised by Allied-Signal
regarding a disproportionate allocation of the budgeted costs to them,
as a result of the elimination of Sequoyah Fuels from the fee base,
falls within the confines of an unusual situation. Therefore, the NRC
will consider Allied-Signal's comments regarding NRC's allocation of
costs to them as an exemption request under 10 CFR 171.11(d). The
Commission will issue a decision on this exemption request in the near
future.
As indicated in the response in item 3(a), the NRC recognized that
there will be adverse impacts on licensees as a result of implementing
OBRA-90. The NRC has concluded after notice and comment rulemaking that
it would not be appropriate to consider licensees' ability to pass
through costs in establishing its fee schedules, an approach now
recommended by Allied-Signal. As stated in the decision to reinstate
the exemption from annual fees for nonprofit educational institutions,
ability to pay is not a basis for an exemption (59 FR 12539). No one
sought judicial review of that decision.
The Commission disagrees with Allied-Signal's suggestion that it be
placed in the uranium recovery fee category rather than that reserved
for fuel facilities, where it is currently located. The NRC includes
the regulatory costs for UF6 conversion facilities in the fuel
facility class of licensees. In developing the FY 1994 annual fees the
NRC followed the established budget structure. This permitted the NRC
to more readily identify and allocate generic and other regulatory
costs to a class of licensees, and allowed the NRC to explain and to
show the origin of these costs upon public examination of the record.
Although the UF6 conversion facilities are included in the
same class as fuel fabrication facilities for budgeting purposes, the
annual fee is based on the NRC's costs attributable to the UF6
conversion facility subclass of licensees. For example, generic safety
and safeguards and other regulatory costs are included in the budgeted
costs for the fuel facilities class of licensees. However, none of the
safeguards costs are included in the annual fee for the UF6
conversion facility subclass since none of these costs are attributable
to this subclass. Thus, the costs included in the annual fee for the
UF6 subclass of licensees are those budgeted costs attributable to
the subclass. These costs, and the resulting annual fee, would be the
same independent of where they are included in the budget. Therefore,
even if the UF6 conversion facilities are more akin to uranium
recovery facilities, the budgeted costs attributable to them result in
a different annual fee.
The NRC further notes that the NRC's costs of promulgating
regulations for a type of licensee do not necessarily decrease when the
number of licenses in a class goes down. Whether a class of licensees
is comprised of one licensee or one hundred, generic safety concerns
may well remain the same, and the same research and regulations are
necessary. This is what distinguishes the annual fee from the 10 CFR
Part 170 fees, which are charged to recapture costs for specific
services such as inspections and license amendments. By its very nature
the annual fee is levied to recover the costs of providing services,
such as the development of new regulations, that cannot be attributed
to a specific licensee.
The NRC does recognize the strain this policy unavoidably places on
licensees who become, as Allied-Signal has, the single licensee in
their class or subclass. The NRC will be reviewing this problem along
with others associated with classification of fuel facilities. Any
changes resulting from this review will be included in the FY 1995
proposed rule for notice and public comment.
4. Fees for Independent Spent Fuel Storage Installations
Comment. One commenter, while noting that the willingness and
ability of the NRC to hold the line on, and indeed reduce, the
recoverable budget for FY 1994 is commendable, questioned the increase
in fees from $136,200 to $363,500 for Independent Spent Fuel Storage
Installations. As a minimum, the commenter believes NRC should identify
the additional resources to be expended in this area.
Response. The reasons for the increased fees for independent spent
fuel storage licensees are two-fold. First, the budgeted amount
necessary to regulate spent fuel activities which is recovered through
10 CFR Part 170 and 171 fees increased to provide regulatory oversight
for the increased number of facilities and to accomplish necessary
rulemaking activities for spent fuel facilities. Additionally, as the
licensing of these facilities are completed, the amount of fees from 10
CFR Part 170 decreased resulting in an increased amount of the budget
that must be recovered from 10 CFR Part 171.
5. Proration of Annual Fees
Comment. Several commenters concurred with the proposed proration
provisions and permitting a waiver of annual fees for those who either
filed for termination of their license prior to October 1, 1993, or
permanently ceased licensed activities by September 30, 1993 but had
not yet received necessary NRC approvals before the end of the fiscal
year.
Response. The NRC has amended 10 CFR 171.17 to revise the proration
provision for reactors and add a proration provision for materials
licenses. The proration provisions are effective for FY 1994. The NRC
proposed to prorate the annual fees for materials licenses upgraded or
downgraded during the fiscal year. However, based on lack of sufficient
data at this time on upgrades and downgrades of licenses and the
administrative burden to implement this part of the proposed proration
provision for FY 1994, the NRC will prorate the annual fees only for
those licenses for which a termination request or a request for a POL
has been filed during the fiscal year and for new licenses issued
during the fiscal year. This issue will be revisited in a future
rulemaking.
E. Other Issues
1. Impact of Fees on Licensees
Comment. Several commenters expressed concern about the impact of
fees, particularly on the practice of nuclear medicine. Some commenters
indicated that the increase in annual fees may indirectly limit access
to critical radiological care, particularly for small, rural, medical
practices. They suggest that the fees be reduced or that NRC freeze the
annual license fee for a five-year period in order for them to stay in
business.
Response. The NRC is concerned about the impact of its fees but has
concluded that significant changes can only come about through the
enactment of legislation. The Commission is satisfied that the fee
schedule being promulgated for FY 1994 satisfies all statutory
obligations. The Commission recently considered the effect of fees on
the medical community and decided that it would not provide the
significant fee relief requested by the medical commenters (59 FR
12555; March 17, 1994).
2. Deferral of Fees for Standardized Plants and Early Site Reviews
Comment. One commenter urged NRC to reestablish the NRC's previous
fee deferral policy for review of standardized plant designs and early
site reviews indicating that fee deferral for review of the
standardized designs is essential to encourage the development of such
designs.
Response. The Commission decided in the FY 1991 final fee rule that
the costs for standardized reactor design reviews, whether for domestic
or foreign applicants, should be assessed under 10 CFR Part 170 to
those filing an application with the NRC for approval or certification
of a standardized design (56 FR 31478; July 10, 1991). Recently, the
Commission revisited this issue as part of its review of fee policy
required by the EPA-92 and reconfirmed its FY 1991 decision. The NRC
continues to believe the costs of these reviews should be assessed to
advanced reactor applicants. The NRC finds no compelling justification
for singling out these classes of applications for special treatment
and shifting additional costs to operating power reactors or other NRC
licensees.
3. Revise 10 CFR 171.13 Notice
Comment. One commenter pointed out that 10 CFR 171.13 states that
the NRC will publish a notice concerning the annual fee in the Federal
Register during the first quarter of each fiscal year and that for the
past four years the NRC has not met the requirement stated in the
regulation. The commenter suggests that the NRC publish the proposed
annual fee and professional hourly rate as early as possible within
NRC's fiscal year to facilitate licensees' budget and planning
processes.
Response. The NRC agrees with the commenter and acknowledges the
realities of the situation that the proposed rule has been published
during the third quarter of each of the past four fiscal years. The
intent of the NRC is to publish the proposed rule as quickly as is
practicable but realizes and agrees that it is unlikely that
publication will occur during the first quarter of the fiscal year. To
permit appropriate notice and comments, however, 10 CFR 171.13 will not
be revised in this final rule but will be revised in a future
rulemaking.
III. Final Action--Changes Included in the Final Rule
The NRC is amending its licensing, inspection, and annual fees for
FY 1994. OBRA-90 requires that the NRC recover approximately 100
percent of its FY 1994 budget authority, including the budget authority
for its Office of the Inspector General, less the appropriations
received from the NWF, by assessing licensing, inspection, and annual
fees.
For FY 1994, the NRC's budget authority was originally $547.7
million. The Commission, in its effort to streamline operations,
proposed a $12.7 million rescission to its original appropriation for
FY 1994. Congress approved this NRC-proposed reduction. This resulted
in a revised budget authority of $535.0 million. Approximately $22.0
million of the revised budget was appropriated from the NWF. Therefore,
OBRA-90 requires that the NRC collect approximately $513.0 million in
FY 1994 through 10 CFR part 170 licensing and inspection fees and 10
CFR part 171 annual fees. This amount to be recovered for FY 1994 is
about $6 million less than the total amount to be recovered for FY
1993. The NRC estimates that approximately $120.1 million will be
recovered in FY 1994 from the fees assessed under 10 CFR part 170. The
remaining $392.9 million will be recovered through the 10 CFR part 171
annual fees established for FY 1994.
The NRC has not changed the basic approach, policies, or
methodology for calculating the 10 CFR part 170 professional hourly
rate, the specific materials licensing and inspection fees in 10 CFR
part 170, and the 10 CFR part 171 annual fees set forth in the final
rules published July 10, 1991 (56 FR 31472), July 23, 1992 (57 FR
32691), and July 20, 1993 (58 FR 38666), with the following exceptions:
(1) The Commission has reinstated the annual fee exemption for
nonprofit educational institutions and (2) in this final rule, the NRC
has directly assigned additional effort to the reactor and materials
programs for the Office of Investigations, the Office of Enforcement,
the Advisory Committee on Reactor Safeguards, and the Advisory
Committee on Nuclear Waste. Resources for these activities had
previously been included in overhead but are now assigned directly to
the class of licenses that they support. As a result of this direct
assignment, the cost per direct FTE is about 3 percent less than it
would have been without the additional direct assignment.
Under this final rule, fees for most materials and fuel cycle
licensees will increase because--
(1) The NRC professional rate has increased slightly from $132/hr
to $133/hr;
(2) The NRC has directly assigned additional effort to the reactor
and materials programs for the Office of Investigations, the Office of
Enforcement, the Advisory Committee on Reactor Safeguards, and the
Advisory Committee on Nuclear Waste. Resources for these activities had
previously been included in overhead, but are now assigned directly to
the class of licensees that they support;
(3) The number of licenses in some classes has decreased as
compared to FY 1993 due to license termination or consolidation,
resulting in fewer licensees to pay for the costs of regulatory
activities not recovered under 10 CFR Part 170; and
(4) The budget for some classes of licensees has increased.
The NRC contemplates that any fees to be collected as a result of
this final rule will be assessed on an expedited basis to ensure
collection of the required fees by September 30, 1994, as stipulated in
OBRA-90. Therefore, as in FY 1991, FY 1992, and FY 1993, the fees will
become effective 30 days after publication of the final rule. The NRC
will send a bill for the amount of the annual fee to the licensee or
certificate, registration, or approval holder upon publication of the
final rule. Payment is due on the effective date of the FY 1994 rule.
A. Amendments to 10 CFR Part 170: Fees for Facilities, Materials,
Import and Export Licenses, and Other Regulatory Services
Five amendments have been made to Part 170. These amendments do not
change the underlying basis for the regulation--that fees be assessed
to applicants, persons, and licensees for specific identifiable
services rendered. The revisions also comply with the guidance in the
Conference Committee Report on OBRA-90 that fees assessed under the
Independent Offices Appropriation Act (IOAA) recover the full cost to
the NRC of all identifiable regulatory services each applicant or
licensee receives.
First, the agency-wide professional hourly rate, which is used to
determine the Part 170 fees, is increased from $132 per hour to $133
per hour ($231,216 per direct FTE). The rate is based on the FY 1994
direct FTEs and that portion of the FY 1994 budget that does not
constitute direct program support (contractual services costs) and is
not recovered through the appropriation from the NWF. As indicated
earlier, the decrease in the FY 1994 budget as compared to the FY 1993
budget is primarily for direct program support, which is not included
in the hourly rate. Thus, the reduction in the budget has limited
impact on the hourly rate but will show up as a direct reduction to the
amount allocated to the various classes of licensees.
Second, the current Part 170 licensing and inspection fees in
Secs. 170.21 and 170.31 for all applicants and licensees are revised to
reflect the very small increase in the hourly rate.
Third, the definition of special projects as provided in Sec. 170.3
of the regulations is revised as a result of (1) the NRC's experience
in implementing the 100 percent fee recovery program during the past
three years and (2) the NRC's most recent fee policy review, required
by the Energy Policy Act of 1992. The NRC believes that the costs for
some requests or reports being filed with NRC are more appropriately
captured in the 10 CFR Part 171 annual fees rather than assessing
specific fees under 10 CFR Part 170. These reports, although submitted
by a specific organization, support NRC's development of generic
guidance and regulations (e.g., rules, regulatory guides, and policy
statements), and resolution of safety issues applicable to a class of
licensees, such as those addressed in generic letters. Therefore, the
applicable definition in Sec. 170.3 and the footnotes in Secs. 170.21
and 170.31 are revised to indicate that 10 CFR Part 170 fees will not
be assessed for requests/reports which have been submitted to the NRC:
(1) In response to a Generic Letter or NRC Bulletin that does not
result in an amendment to the license, does not result in the review of
an alternate method or reanalysis to meet the requirements of the
Generic Letter or does not involve an unreviewed safety issue;
(2) In response to an NRC request (at the Associate Office Director
level or above) to resolve an identified safety, safeguards, or
environmental issue, or to assist the NRC in developing a rule,
regulatory guide, policy statement, generic letter, or bulletin; or
(3) As a means of exchanging information between industry
organizations and the NRC for the purpose of supporting generic
regulatory improvements or efforts.
The terms ``alternate method'', ``reanalysis'' and ``unreviewed
safety issue'' are explained in more detail in Section IV, Section-By-
Section Analysis.
Fourth, Sec. 170.11(a) is amended to establish an exemption from
fees for State-owned research reactors if they meet the technical
design criteria for the exemption and are research reactors used
primarily for educational training and academic research purposes.
Fifth, Fee Category 2 is amended by establishing two additional fee
categories, 2.A.(2) and 2.A.(3), which cover licenses authorizing
receipt and disposal of Section 11e.(2) byproduct material as defined
by the Atomic Energy Act. The current 2.A. category has been amended to
read 2.A.(1). The current 4.D. fee category has been eliminated. This
action recognizes that: (1) Source material licenses are issued to
cover these licensed activities and therefore they are more
appropriately placed in the source material category; and (2) that a
further distinction should be made between those licenses whose primary
purpose is to authorize receipt and disposal of 11e.(2) material
requiring the establishment of a new tailings pile and those licenses
authorizing the receipt and disposal of 11e.(2) material incidental to
tailings piles created by mill operations.
In addition, Category 16 of Sec. 170.31, reciprocity, is amended to
include a fee to recover the NRC's costs of reviewing revisions to the
initial NRC Form 241 filed by 10 CFR 150.20 general licensees.
Agreement State licensees requesting reciprocity for activities
conducted in non-Agreement States or in offshore waters are subject to
10 CFR 150.20. The first time within a calendar year that an Agreement
State licensee conducts activities in non-Agreement States or in
offshore waters, it must file a completed NRC Form 241. Revisions to
the initial NRC Form 241 are filed for review and authorization when
persons using the 10 CFR Part 150.20 general license either add
locations of work, use different radioactive material or perform
additional work activities in a non-Agreement State.
B. Amendments to 10 CFR Part 171: Annual Fees for Reactor Operating
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 NRC
Six amendments have been made to 10 CFR Part 171. First,
Sec. 171.11(a)(2) is amended to provide that State-owned research
reactors used primarily for educational training and academic research
purposes will be exempt from the annual fee. The NRC believes that this
change is consistent with the legislative intent of the Energy Policy
Act of 1992 that government-owned research reactors be exempt from
annual fees if they meet the technical design criteria for the
exemption and are used primarily for educational training and academic
research purposes.
Second, Secs. 171.15 and 171.16 are amended to revise the annual
fees for FY 1994 to recover approximately 100 percent of the FY 1994
budget authority, less fees collected under 10 CFR Part 170 and funds
appropriated from the NWF.
Third, fee Category 2 of Sec. 171.16(d) is amended by establishing
two new fee categories, 2.A.(3) and 2.A.(4), relating to the disposal
of 11e.(2) byproduct material as defined by the Atomic Energy Act. The
current fee Category 4.D. has been eliminated. This action recognizes
that (1) part of the budgeted costs for the uranium recovery class of
licensees should be allocated to source material licenses that
authorize receipt and disposal of 11e.(2) material because some of
these budgeted resources are used to regulate these licensees and (2) a
further distinction should be made between those licenses whose primary
purpose is to authorize receipt and disposal of 11e.(2) byproduct
material requiring the establishment of a new mill tailings pile and
those non-operating mills that accept 11e.(2) byproduct material for
disposal incidental to tailings piles created by mill operations.
In addition, fee Category 18 of Sec. 171.16(d) is amended to assess
fees to the Department of Energy (DOE) for its general license in 10
CFR 40.27. The general license fulfills a requirement of the Uranium
Mill Tailings Radiation Control Act of 1978 (UMTRCA) (Public Law 95-
604) that the perpetual custodian of reclaimed uranium mill tailings
piles be licensed by the NRC. The general license provided for in the
regulation covers only post-reclamation closure custody and site
surveillance. Based on NRC's acceptance of DOE's Long Term Surveillance
Plan for the Spook, Wyoming, site on September 21, 1993, the site is
now subject to the general license in 10 CFR 40.27. Because DOE now
holds an NRC license, it is subject to annual fees. The NRC had
previously indicated its intent to bill DOE for UMTRCA costs once post-
closure was achieved and the sites were licensed by the Government (56
FR 31481; July 10, 1991). As a result, DOE will be billed for the costs
associated with NRC's UMTRCA review of all activities associated with
the facilities assigned to DOE under UMTRCA. As with other licensees,
the annual fee for this class of licensees (DOE UMTRCA facilities) will
recover the generic and other regulatory costs not recovered through 10
CFR Part 170 fees. Because DOE, as a Federal agency, cannot be assessed
Part 170 fees under the Independent Offices Appropriation Act of 1952
(IOAA), the result is that NRC will assess annual fees to DOE for the
total costs of DOE UMTRCA activities.
Fourth, 10 CFR 171.17 is amended to add a proration provision for
materials licenses and to revise the proration provision for reactors.
The annual fee for materials licensees is prorated based on
applications filed after October 1 of the fiscal year to terminate a
license or obtain a POL. Those materials licensees who file
applications between October 1 and March 31 of the fiscal year to
terminate the license or obtain a POL will be assessed one-half the
annual fee stated in Sec. 171.16(d) for the affected fee category(ies).
Those materials licensees filing applications on or after April 1 of
the fiscal year to terminate a license or obtain a POL will be assessed
the full annual fee for that fiscal year. Those licensees who file for
termination or POL must also permanently cease operations of relevant
licensed activities during the periods mentioned for the fees to be
reduced. Similarly, materials licensees who were issued new licenses
during the fiscal year will be charged a prorated annual fee based on
the date of issuance of the new license. New materials licenses issued
during the period October 1 through March 31 will be assessed one-half
of the annual fee stated in Sec. 171.16(d) for the applicable fee
category(ies) for that fiscal year. New licenses issued on or after
April 1 will not be assessed an annual fee for that fiscal year.
The proration provision in Sec. 171.17 applicable to reactors is
amended to provide that, for licensees who have requested an amendment
to withdraw operating authority permanently during the FY, the annual
fee will be prorated based on the number of days during the FY the
operating license was in effect before either the possession only
license was issued or the license was terminated.
Fifth, Footnote 1 of 10 CFR 171.16(d) is amended to provide for a
waiver of the FY 1994 annual fees for those materials licensees, and
holders of certificates, registrations, and approvals who either filed
for termination of their licenses or approvals or filed for possession
only/storage licenses prior to October 1, 1993, and permanently ceased
licensed activities entirely by September 30, 1993. All other licensees
and approval holders who held a license or approval on October 1, 1993,
are subject to FY 1994 annual fees. This change is in recognition of
the fact that since the final FY 1993 rule was published in July 1993,
licensees have continued to file requests for termination of their
licenses or certificates with the NRC. Other licensees have either
called or written to the NRC since the FY 1993 final rule became
effective requesting further clarification and information concerning
the annual fees assessed. The NRC is responding to these requests as
quickly as possible. However, the NRC was unable to respond and take
action on all of the requests before the end of the fiscal year on
September 30, 1993. Similar situations existed after the FY 1991 and FY
1992 rules were published, and in those cases NRC provided an exemption
from the requirement that the annual fee is waived only where a license
is terminated before October 1 of each fiscal year.
Sixth, Sec. 171.19 is amended to credit the quarterly partial
payments already made by certain licensees in FY 1994 either toward
their total annual fee to be assessed or to make refunds, if necessary.
The 10 CFR part 171 annual fees have been determined using the same
method used to determine the FY 1991, FY 1992, and FY 1993 annual fees.
The amounts to be collected through annual fees in the amendments to 10
CFR part 171 are based on the increased professional hourly rate. The
amendments to 10 CFR part 171 do not change the underlying basis for 10
CFR part 171; that is, charging a class of licensees for NRC costs
attributable to that class of licensees. The changes are consistent
with the Congressional guidance in the Conference Committee Report on
OBRA-90, which states that the ``conferees contemplate that the NRC
will continue to allocate generic costs that are attributable to a
given class of licensee to such class'' and the ``conferees intend that
the NRC assess the annual charge under the principle that licensees who
require the greatest expenditures of the agency's resources should pay
the greatest annual fee'' (136 Cong. Rec., at H12692-93).
During the past three years, many licensees have indicated that
although they held a valid NRC license authorizing the possession and
use of special nuclear, source, or byproduct material, they were in
fact either not using the material to conduct operations or had
disposed of the material and no longer needed the license. In
responding to licensees about this matter, the NRC has stated that
annual fees are assessed based on whether a licensee holds a valid NRC
license that authorizes possession and use of radioactive material.
Whether or not a licensee is actually conducting operations using the
material is a matter of licensee discretion. The NRC cannot control
whether a licensee elects to possess and use radioactive material once
it receives a license from the NRC. Therefore, the NRC reemphasizes
once again that annual fees will be assessed based on whether a
licensee holds a valid license with the NRC that authorizes possession
and use of radioactive material. To remove any uncertainties regarding
agency policy on this issue, the NRC amended 10 CFR 171.16, footnotes 1
and 7 on July 20, 1993 (58 FR 38666).
C. FY 1994 Budgeted Costs
The FY 1994 budgeted costs, by major activity, that will be
recovered through 10 CFR parts 170 and 171 fees are shown in Table I.
Table I.-- Recovery of NRC's FY 1994 Budget Authority
[Dollars in millions]
------------------------------------------------------------------------
Estimated
Recovery method amount
------------------------------------------------------------------------
Nuclear Waste Fund........................................... $22.0
Part 170 (license and inspection fees)....................... 120.1
Other receipts............................................... .1
Part 171 (annual fees):
Power Reactors............................................. 302.1
Nonpower Reactors.......................................... .4
Fuel Facilities............................................ 16.8
Spent Fuel Storage......................................... 2.2
Uranium Recovery........................................... 2.1
Transportation............................................. 4.0
Material Users............................................. \1\38.6
----------
Subtotal Part 171...................................... 366.2
Costs remaining to be recovered not identified above......... 26.6
==========
Total.................................................. 535.0
------------------------------------------------------------------------
\1\Includes $6.3 million that will not be recovered from small materials
licensees because of the reduced small entity fees.
The $26.6 million identified for those activities which are not
identified as either 10 CFR parts 170 or 171 or the NWF in Table I are
distributed among the classes of licensees as follows:
$24.4 million to operating power reactors;
$.7 million to fuel facilities; and
$1.5 million to other materials licensees.
In addition, approximately $6.3 million must be collected as a
result of continuing the $1,800 maximum fee for small entities and the
lower tier small entity fee of $400 for certain licensees. In order for
the NRC to recover 100 percent of its FY 1994 budget authority in
accordance with OBRA-90, the NRC will recover $5.3 million of the $6.3
million from operating power reactors and the remaining $1.0 million
from other nonreactor entities that do not meet NRC small entity size
standards.
This distribution results in an additional charge (surcharge) of
approximately $273,000 per operating power reactor; $55,770 for each
HEU, LEU, UF6, and each other fuel facility license; $1,670 for
each materials license in a category that generates a significant
amount of low level waste; and $170 for other materials licenses. When
added to the base annual fee of approximately $2.8 million per reactor,
this will result in an annual fee of approximately $3.1 million per
operating power reactor. The total fuel facility annual fee will be
between approximately $1.2 million and $3.2 million. The total annual
fee for materials licenses will vary depending on the fee category(ies)
assigned to the license.
The additional charges not directly or solely attributable to a
specific class of NRC licensees and costs not recovered from all NRC
licensees on the basis of previous Commission policy decisions will be
recovered from the designated classes of licensees previously
identified. A further discussion and breakdown of the specific costs by
major classes of licensees are shown in section IV of this final rule.
IV. Section-by-Section Analysis
The following analysis of those sections that are affected under
this final rule provides additional explanatory information. All
references are to title 10, chapter I, Code of Federal Regulations.
Part 170
Section 170.3 Definitions
This section is amended to revise the definition of special
projects. This change is based on NRC's experience during the past
three years in implementing the 100 percent fee recovery program and
the fee policy review required by the Energy Policy Act of 1992. The
NRC believes that the costs for some requests or reports being filed
with NRC are more appropriately captured in the 10 CFR part 171 annual
fees instead of assessing specific fees under 10 CFR part 170.
Therefore, the definition in Sec. 170.3, as well as the footnotes in
Secs. 170.21 and 170.31, are amended to indicate that 10 CFR part 170
fees will not be assessed for requests/reports which have been
submitted to the NRC:
1. In response to a Generic Letter or NRC Bulletin that does not
result in an amendment to the license, does not result in the review of
an alternate method or reanalysis to meet the requirements of the
Generic Letter, or does not involve an unreviewed safety issue;
2. In response to an NRC request (at the Associate Office Director
level or above) to resolve an identified safety, safeguards, or
environmental issue, or to assist the NRC in developing a rule,
regulatory guide, policy statement, generic letter, or bulletin; or
3. As a means of exchanging information between industry
organizations and the NRC for the purpose of supporting generic
regulatory improvements or efforts.
The terms ``alternate method'', ``reanalysis'', and ``unreviewed
safety issue'' as used in item 1 are further explained as follows:
``Alternate method'' is a method that deviates significantly (i.e.,
more than necessary for plant-specific or generic program development)
from the method proposed in the Generic Letter or NRC Bulletin;
``Reanalysis'' is an analysis of an alternate method but not a
review of changes to a method which is consistent with that proposed by
the Generic Letter or Bulletin. These types of ``consistent'' changes
could be revisions submitted pursuant to an NRC staff request for
additional information or modification, or changes necessary for plant-
specific or generic implementation; and
``Unreviewed safety issue'' is a safety issue unrelated to the
safety issue identified in the generic communication that arises from
proposal of an alternate method and will require reanalysis by the NRC
staff.
Section 170.11 Exemptions
Paragraph (a)(9) of this section is established to provide an
exemption from fees for State-owned research reactors that meet certain
technical design criteria and are used primarily for educational
training and academic research purposes. Currently, Federal agencies
are exempt from payment of 10 CFR part 170 fees under the Independent
Offices Appropriation Act (IOAA). The proposed rule would have amended
only 10 CFR part 171. The NRC believes however, that this change to 10
CFR part 170 is consistent with the legislative intent of the Energy
Policy Act of 1992 that government-owned research reactors be exempt
from fees if they meet the technical design criteria for the exemption
and are used primarily for educational training and academic research
purposes. There is currently one research reactor, owned by the Rhode
Island Atomic Energy Commission, that will be exempt under this
amendment to Sec. 170.11.
Section 170.20 Average Cost Per Professional Staff Hour
This section is amended to reflect an agency-wide, professional
staff-hour rate based on FY 1994 budgeted costs. Accordingly, the NRC
professional staff-hour rate for FY 1994 for all fee categories that
are based on full cost is $133 per hour, or $231,216 per direct FTE.
The rate is based on the FY 1994 direct FTEs and NRC budgeted costs
that are not recovered through the appropriation from the NWF. The rate
is calculated using the identical method established for FY 1991, FY
1992, and FY 1993. As noted earlier, in this final rule, the NRC has
directly assigned additional effort to the reactor and materials
programs for the Office of Investigations, the Office of Enforcement,
the Advisory Committee on Reactor Safeguards and the Advisory Committee
on Nuclear Waste. The method is as follows:
1. All direct FTEs are identified in Table II by major program. For
FY 1994 the NRC has traced additional direct effort to the reactor and
materials programs for the Office of Investigations, the Office of
Enforcement, the Advisory Committee on Reactor Safeguards, and the
Advisory Committee on Nuclear Waste. The budgeted costs for these
activities had previously been included in overhead but are now being
directly assigned to the class of licensees that they support.
Table II.--Allocation of Direct FTEs by Major Program
------------------------------------------------------------------------
No. of
Major program direct
FTEs\1\
------------------------------------------------------------------------
Reactor Safety and Safeguards Regulation................... 1,034.4
Reactor Safety Research.................................... 111.3
Nuclear Material and Low Level Waste Safety and Safeguards
Regulation................................................ 352.5
Reactor Special and Independent Reviews, Investigations,
and Enforcement........................................... 111.7
Nuclear Material Management and Support.................... 19.0
------------
Total direct FTE..................................... \2\1,628.9
------------------------------------------------------------------------
\1\FTE (full-time equivalent) is one person working for a full year.
Regional employees are counted in the office of the program each
supports.
\2\In FY 1994, 1,628.9 FTEs of the total 3,223 FTEs are considered to be
in direct support of NRC non-NWF programs. The remaining 1,594.1 FTEs
are considered overhead and general and administrative.
2. NRC FY 1994 budgeted costs are allocated, in Table III, to the
following four major categories:
(a) Salaries and benefits.
(b) Administrative support.
(c) Travel.
(d) Program support.
3. Direct program support, which is the use of contract or other
services in support of the line organization's direct program, is
excluded because these costs are charged directly through the various
categories of fees.
4. All other costs (i.e., Salaries and Benefits, Travel,
Administrative Support, and Program Support contracts/services for G&A
activities) represent ``in-house'' costs and are to be collected by
allocating them uniformly over the total number of direct FTEs.
Using this method, which was described in the final rules published
July 10, 1991 (56 FR 31472), July 23, 1992 (57 FR 32691), and July 20,
1993 (58 FR 38666), and excluding direct Program Support funds,
allocating the remaining $376.6 million uniformly to the direct FTEs
(1,628.9) results in a rate of $231,216 per FTE for FY 1994. The Direct
FTE Hourly Rate is $133 per hour (rounded to the nearest whole dollar).
This rate is calculated by dividing $376.6 million by the number of
direct FTEs (1,628.9 FTE) and the number of productive hours in one
year (1744 hours) as indicated in OMB Circular A-76, ``Performance of
Commercial Activities.''
Table III.--FY 1994 Budget Authority by Major Category
[Dollars in millions]
Salaries and
benefits.......... $259.5
Administrative
support........... 86.7
Travel............. 15.9
---------------------------------------------
Total
nonprogram
support
obligations. 362.1
Program support.... 150.9
=============================================
Total Budget
Authority... 513.0
Less direct program
support and
offsetting
receipts.......... 136.4
---------------------------------------------
Budget
Allocated to
Direct FTE.. 376.6
Professional Hourly
Rate.............. 133
Section 170.21 Schedule of Fees for Production and Utilization
Facilities, Review of Standard Reference Design Approvals, Special
Projects, Inspections and Import and Export Licenses.
The licensing and inspection fees in this section, which are based
on full-cost recovery, are revised to reflect the FY 1994 budgeted
costs and to recover costs incurred by the NRC in providing licensing
and inspection services to indentifiable recipients. The fees asssessed
for services provided under the schedule are based on the professional
hourly rate as shown in Sec. 170.20 and any direct program support
(contractual services) costs expended by the NRC. Any professional
hours expended on or after the effective date of this rule will be
assessed at the FY 1994 rate shown in Sec. 170.20. Although the amounts
of the import and export licensing fees in Sec. 170.21, facility
Category K, have not changed from FY 1993 as a result of the very small
increase in the hourly rate from $132 per hour to $133 per hour, they
are being published for purposes of convenience.
For those applications currently on file and pending completion,
footnote 2 of Sec. 170.21 is revised to provide that the professional
hours expended up to the effective date of this rule will be assessed
at the professional rates established for the rules that became
effective on June 20, 1984, January 30, 1989, July 2, 1990, August 9,
1991. August 24, 1992, and August 19, 1993, as appropriate. For topical
report applications currently on file which are still pending
completion of the review and for which review costs have reached the
applicable fee ceiling established by the July 2, 1990, rule, the costs
incurred after any applicable ceiling was reached through August 8,
1991, will not be billed to the applicant. Any professional hours
expended for the review of topical report applications, amendments,
revisions, or supplements to a topical report on or after August 9,
1991, are assessed at the applicable rate established by Sec. 170.20.
Section 170.31 Schedule of Fees for Materials Licenses and Other
Regulatory Services, Including Inspections and Import and Export
Licenses.
The licensing and inspection fees in this section are modified to
recover the FY 1994 costs incurred by the Commission in providing
licensing and inspection services to identifiable recipients. Those
flat fees, which are based on the average time to review an application
or conduct an inspection, are adjusted to reflect the very small
increase in the professional hourly rate from $132 per hour in FY 1993
to $133 per hour in FY 1994. In many cases, the fees for FY 1994 are
the same as those assessed in FY 1993.
The amounts of the licensing and inspection flat fees were rounded
by applying standard rules of arithmetic so that the amounts rounded
would be de minimus and convenient to the user. Fees that are greater
than $1,000 are rounded to the nearest $100. Fees under $1,000 are
rounded to the nearest $10.
The revised flat fees are applicable to fee categories 1.C and 1.D;
2.B and 2.C; 3.A through 3.P; 4.B through 9.D, 10.B, 15A through 15E
and 16. The revised fees will be assessed for applications filed or
inspections conducted on or after the effective date of this rule.
Fee Category 2 is amended by establishing two additional fee
categories 2.A.(2) and 2.A.(3) which cover licenses authorizing receipt
and disposal of Section 11e.(2) byproduct material as defined by the
Atomic Energy Act. The current 2.A. category has been amended to read
2.A.(1). The current 4.D. fee category has been eliminated. This action
recognizes that (1) source material licenses are issued to cover these
licensed activities and they are more appropriately placed in the
source material category and (2) that a further distinction should be
made between those licenses whose primary purpose is to authorize
receipt and disposal of 11e.(2) material requiring the establishment of
a new tailings pile from those licenses authorizing the receipt and
disposal of 11e.(2) material incidental to tailings piles created by
mill operations.
Fee Category 16, reciprocity, is also amended to include a fee to
recover the costs incurred by the NRC for the review of revisions to
the information submitted on the initial NRC Form-241 filed by 10 CFR
150.20 general licensees during the remainder of the calendar year.
Agreement State licensees requesting reciprocity for activities
conducted in non-Agreement States or in offshore waters are subject to
10 CFR 150.20. The first time within a calendar year that an Agreement
State licensee conducts activities in non-Agreement States or in
offshore waters, it must file a completed NRC Form 241. Revisions to
the initial NRC Form 241 are filed for review and authorization when
persons using the 10 CFR Part 150.20 general license either add
locations of work, use different radioactive material or perform
additional work activities in a non-Agreement State.
For those licensing, inspection, and review fees assessed that are
based on full-cost recovery (cost for professional staff hours plus any
contractual services), the revised hourly rate of $133, as shown in
Sec. 170.20, applies to those professional staff hours expended on or
after the effective date of this rule.
Part 171
Section 171.11 Exemptions
Paragraph (a)(2) of this section is amended to exempt State-owned
reactors used primarily for educational training and academic research
purposes from annual fees. The NRC believes that this change is
consistent with the legislative intent of the Energy Policy Act of 1992
that government-owned research reactors be exempt from annual fees if
they meet the technical design criteria of the exemption and are used
primarily for educational training and academic research purposes.
There is currently one research reactor, owned by the Rhode Island
Atomic Energy Commission, that will be exempt under this amendment to
Sec. 171.11.
Section 171.15 Annual Fee: Reactor Operating Licenses
The annual fees in this section are revised to reflect FY 1994
budgeted costs. Paragraphs (a), (b)(3), (c)(2), (d), and (e) are
revised to comply with the requirement of OBRA-90 to recover
approximately 100 percent of the NRC budget for FY 1994. Table IV shows
the budgeted costs that have been allocated directly to operating power
reactors as part of the base fee. They have been expressed in terms of
the NRC's FY 1994 programs and program elements. The resulting total
base annual fee amount for power reactors is also shown.
Table IV.--Allocation of NRC FY 1994 Budget to Power Reactors' Base Fees\1\
----------------------------------------------------------------------------------------------------------------
Program element Allocated to power
total reactors
-------------------------------------------
Program Program
support Direct support Direct
($, K) FTE ($, K) FTE
----------------------------------------------------------------------------------------------------------------
Reactor Safety and Safeguards Regulation (RSSR)
Standard Reactor Designs............................................ $9,531 96.3 $9,361 92.8
Reactor License Renewal............................................. 600 33.9 600 33.9
Reactor and Site Licensing.......................................... 1,810 34.7 1,810 29.8
Resident Inspections................................................ ......... 207.0 ......... 207.0
Region-Based Inspections............................................ 2,780 235.0 2,780 229.8
Interns (HQ and Regions)............................................ ......... 23.0 ......... 23.0
Special Inspections................................................. 970 42.7 970 42.7
License Maintenance and Safety Evaluations.......................... 4,142 208.5 4,142 208.5
Plant Performance................................................... 927 52.1 927 52.1
Human Performance................................................... 4,760 54.7 4,403 51.1
Other Safety Reviews and Assistance................................. 3,443 46.5 3,213 38.8
---------------------
RSSR program total.............................................. ......... ......... $28,206 1,009.5
=====================
Reactor Safety Research (RSR)
Standard Reactor Designs............................................ $16,676 29.3 $16,676 29.3
Reactor Aging & License Renewal..................................... 23,273 13.7 22,573 13.6
Plant Performance................................................... 3,173 4.2 3,173 4.2
Human Reliability................................................... 4,428 7.0 4,428 7.0
Reactor Accident Analysis........................................... 20,284 26.7 20,284 26.7
Safety Issue Resolution and Regulatory Improvements................. 10,240 30.4 10,240 30.4
---------------------
RSR program total............................................... ......... ......... $77,374 111.2
=====================
Nuclear Material & Low Level (NMLL)
NMLL (NMSS):
Fuel Cycle Safety and Safeguards................................ $4,783 85.8 $1,494 2.8
LLW Licensing and Inspection.................................... 592 14.3 ......... 1.4
Uranium Recovery Licensing and Inspection....................... 265 14.4 21 0
Decommissioning................................................. 2,215 30.8 9 6.7
NMLL (RES):
Environmental Policy and Decommissioning........................ 2,410 9.0 964 3.6
---------------------
NMLL program total.......................................... ......... ......... $2,488 14.5
=====================
Reactor Special and Independent Reviews, Investigations, and
Enforcement
AEOD:
Diagnostic Evaluations.......................................... 288 5.0 288 5.0
Incident Investigations......................................... 26 1.0 26 1.0
NRC Incident Response........................................... 1,854 26.0 1,854 24.0
Operational Experience Evaluation............................... 5,447 30.0 5,447 29.0
---------------------
Committee to Review Generic Requirements........................ ......... 2.0 ......... 2.0
=====================
AEOD Subtotal............................................... ......... ......... $7,615 61.0
Advisory Committee on Reactor Safeguards............................ 181 20.5 181 20.5
Office of Investigations............................................ ......... 17.0 ......... 17.0
Office of Enforcement............................................... 10 7.2 10 7.0
---------------------
RSIRIE program total............................................ ......... ......... $7,806 105.5
=====================
Total base fee amount allocated to power reactors............... ......... ......... ......... $402.7
(million\
2\)
Less estimated part 170 power reactor fees (million)............ ......... ......... ......... $100.6
---------------------
Part 171 base fees for operating power reactors............... ......... ......... ......... $302.1
(million)
----------------------------------------------------------------------------------------------------------------
\1\Base annual fees include all costs attributable to the operating power reactor class of licensees. The base
fees do not include costs allocated to power reactors for policy reasons.
\2\Amount is obtained by multiplying the direct FTE times the rate per FTE and adding the program support funds.
Based on the information in Table IV, the base annual fees that
will be assessed for FY 1994 are the amounts shown in Table V below for
each nuclear power operating license.
Table V.--Base Annual Fees for Operating Power Reactors
----------------------------------------------------------------------------------------------------------------
Reactors Containment type Annual fee
----------------------------------------------------------------------------------------------------------------
Westinghouse:
1. Beaver Valley 1.................................... PWR Large Dry Containment............. $2,805,000
2. Beaver Valley 2.................................... ...... do............................. 2,805,000
3. Braidwood 1........................................ ...... do............................. 2,805,000
4. Braidwood 2........................................ ...... do............................. 2,805,000
5. Byron 1............................................ ...... do............................. 2,805,000
6. Bryon 2............................................ ...... do............................. 2,805,000
7. Callaway 1......................................... ...... do............................. 2,805,000
8. Comanche Peak 1.................................... ...... do............................. 2,805,000
9. Comanche Peak 2.................................... ...... do............................. 2,805,000
10. Diablo Canyon 1................................... ...... do............................. 2,803,000
11. Diablo Canyon 2................................... ...... do............................. 2,803,000
12. Farley 1.......................................... ...... do............................. 2,805,000
13. Farley 2.......................................... ...... do............................. 2,805,000
14. Ginna............................................. ...... do............................. 2,805,000
15. Haddam Neck....................................... ...... do............................. 2,805,000
16. Harris 1.......................................... ...... do............................. 2,805,000
17. Indian Point 2.................................... ...... do............................. 2,805,000
18. Indian Point 3.................................... ...... do............................. 2,805,000
19. Kewaunee.......................................... ...... do............................. 2,805,000
20. Millstone 3....................................... ...... do............................. 2,805,000
21. North Anna 1...................................... ...... do............................. 2,805,000
22. North Anna 2...................................... ...... do............................. 2,805,000
23. Point Beach 1..................................... ...... do............................. 2,805,000
24. Point Beach 2..................................... ...... do............................. 2,805,000
25. Prairie Island 1.................................. ...... do............................. 2,805,000
26. Prairie Island 2.................................. ...... do............................. 2,805,000
27. Robinson 2........................................ ...... do............................. 2,805,000
28. Salem 1........................................... ...... do............................. 2,805,000
29. Salem 2........................................... ...... do............................. 2,805,000
30. Seabrook 1........................................ ...... do............................. 2,805,000
31. South Texas 1..................................... ...... do............................. 2,805,000
32. South Texas 2..................................... ...... do............................. 2,805,000
33. Summer 1.......................................... ...... do............................. 2,805,000
34. Surry 1........................................... ...... do............................. 2,805,000
35. Surry 2........................................... ...... do............................. 2,805,000
36. Turkey Point 3.................................... ...... do............................. 2,805,000
37. Turkey Point 4.................................... ...... do............................. 2,805,000
38. Vogtle 1.......................................... ...... do............................. 2,805,000
39. Vogtle 2.......................................... ...... do............................. 2,805,000
40. Wolf Creek 1...................................... ...... do............................. 2,805,000
41. Zion 1............................................ ...... do............................. 2,805,000
42. Zion 2............................................ ...... do............................. 2,805,000
43. Catawba 1......................................... PWR--Ice Condenser.................... 2,804,000
44. Catawba 2......................................... ...... do............................. 2,804,000
45. Cook 1............................................ ...... do............................. 2,804,000
46. Cook 2............................................ ...... do............................. 2,804,000
47. McGuire 1......................................... ...... do............................. 2,804,000
48. McGuire 2......................................... ...... do............................. 2,804,000
49. Sequoyah 1........................................ ...... do............................. 2,804,000
50. Sequoyah 2........................................ ...... do............................. 2,804,000
Combustion Engineering:
1. Arkansas 2......................................... PWR Large Dry Containment............. 2,804,000
2. Calvert Cliffs 1................................... ...... do............................. 2,804,000
3. Calvert Cliffs 2................................... ...... do............................. 2,804,000
4. Ft. Calhoun 1...................................... ...... do............................. 2,804,000
5. Maine Yankee....................................... ...... do............................. 2,804,000
6. Millstone 2........................................ ...... do............................. 2,804,000
7. Palisades.......................................... ...... do............................. 2,804,000
8. Palo Verde 1....................................... ...... do............................. 2,801,000
9. Palo Verde 2....................................... ...... do............................. 2,801,000
10. Palo Verde 3...................................... ...... do............................. 2,801,000
11. San Onofre 2...................................... ...... do............................. 2,801,000
12. San Onofre 3...................................... ...... do............................. 2,801,000
13. St. Lucie 1....................................... ...... do............................. 2,804,000
14. St. Lucie 2....................................... ...... do............................. 2,804,000
15. Waterford 3....................................... ...... do............................. 2,804,000
Babcock & Wilcox:
1. Arkansas 1......................................... ...... do............................. 2,804,000
2. Crystal River 3.................................... ...... do............................. 2,804,000
3. Davis Besse 1...................................... ...... do............................. 2,804,000
4. Oconee 1........................................... ...... do............................. 2,804,000
5. Oconee 2........................................... ...... do............................. 2,804,000
6. Oconee 3........................................... ...... do............................. 2,804,000
7. Three Mile Island 1................................ ...... do............................. 2,804,000
General Electric:
1. Browns Ferry 1..................................... Mark I................................ 2,785,000
2. Browns Ferry 2..................................... ...... do............................. 2,785,000
3. Browns Ferry 3..................................... ...... do............................. 2,785,000
4. Brunswick 1........................................ ...... do............................. 2,785,000
5. Brunswick 2........................................ ...... do............................. 2,785,000
6. Clinton 1.......................................... Mark III.............................. 2,785,000
7. Cooper............................................. Mark I................................ 2,785,000
8. Dresden 2.......................................... ...... do............................. 2,785,000
9. Dresden 3.......................................... ...... do............................. 2,785,000
10. Duane Arnold...................................... ...... do............................. 2,785,000
11. Fermi 2........................................... ...... do............................. 2,785,000
12. Fitzpatrick....................................... ...... do............................. 2,785,000
13. Grand Gulf 1...................................... Mark III.............................. 2,785,000
14. Hatch 1........................................... Mark I................................ 2,785,000
15. Hatch 2........................................... ...... do............................. 2,785,000
16. Hope Creek 1...................................... ...... do............................. 2,785,000
17. LaSalle 1......................................... Mark II............................... 2,785,000
18. LaSalle 2......................................... ...... do............................. 2,785,000
19. Limerick 1........................................ ...... do............................. 2,785,000
20. Limerick 2........................................ ...... do............................. 2,785,000
21. Millstone 1....................................... Mark I................................ 2,785,000
22. Monticello........................................ ...... do............................. 2,785,000
23. Nine Mile Point 1................................. ...... do............................. 2,785,000
24. Nine Mile Point 2................................. Mark II............................... 2,785,000
25. Oyster Creek...................................... Mark I................................ 2,785,000
26. Peach Bottom 2.................................... ...... do............................. 2,785,000
27. Peach Bottom 3.................................... ...... do............................. 2,785,000
28. Perry 1........................................... Mark III.............................. 2,785,000
29. Pilgrim........................................... Mark I................................ 2,785,000
30. Quad Cities 1..................................... ...... do............................. 2,785,000
31. Quad Cities 2..................................... ...... do............................. 2,785,000
32. River Bend 1...................................... Mark III.............................. 2,785,000
33. Susquehanna 1..................................... Mark II............................... 2,785,000
34. Susquehanna 2..................................... ...... do............................. 2,785,000
35. Vermont Yankee.................................... Mark I................................ 2,785,000
36. Washington Nuclear 2.............................. Mark II............................... 2,782,000
Other Reactor:
1. Big Rock Point..................................... GE Dry Containment.................... 2,785,000
----------------------------------------------------------------------------------------------------------------
The ``Other Reactor'' listed in Table V was not included in the fee
base because historically Big Rock Point has been granted a partial
exemption from the annual fees. With respect to Big Rock Point, a
smaller older reactor, the NRC hereby grants a partial exemption from
the FY 1994 annual fees based on a request filed with the NRC in
accordance with Sec. 171.11. The total amount of $0.2 million to be
paid by Big Rock Point has been subtracted from the total amount
assessed operating reactors as a surcharge.
Paragraph (b)(3) is revised to change the fiscal year references
from FY 1993 to FY 1994. Paragraph (c)(2) is amended to show the amount
of the surcharge for FY 1994. This surcharge is added to the base
annual fee for each operating power reactor shown in Table V. The
purpose of this surcharge is to recover those NRC budgeted costs that
are not directly or solely attributable to operating power reactors but
nevertheless must be recovered to comply with the requirements of OBRA-
90. The NRC has continued its previous policy decision to recover these
costs from operating power reactors.
The FY 1994 budgeted costs related to the additional charge and the
amount of the charge are calculated as follows:
[Dollars in millions]
------------------------------------------------------------------------
FY 1994
Category of costs budgeted
costs
------------------------------------------------------------------------
1. Activities not attributable to an existing NRC licensee
or class of licensee:
a. Reviews for DOE/DOD reactor projects, and West
Valley Demonstration Project; $2.4
b. International cooperative safety program and
international safeguards activities; and 8.2
c. Low-level waste disposal generic activities; 6.0
2. Activities not assessed Part 170 licensing and
inspection fees or Part 171 annual fees based on
Commission policy:
a. Licensing and inspection activities associated with
nonprofit educational institutions; and 7.8
b. Costs not recovered from Part 171 for small
entities. 5.3
------------
Subtotal budgeted costs............................ $29.7
Less amount to be assessed to small older reactors. .2
------------
Total budgeted costs........................... $29.5
------------------------------------------------------------------------
The annual additional charge is determined as follows:
TR20JY94.009
On the basis of this calculation, an operating power reactor,
Beaver Valley 1, for example, would pay a base annual fee of $2,805,000
and an additional charge of $273,000 for a total annual fee of
$3,078,000 for FY 1994.
Paragraph (d) is revised to show, in summary form, the amount of
the total FY 1994 annual fee, including the surcharge, to be assessed
for each major type of operating power reactor.
Paragraph (e) is revised to show the amount of the FY 1994 annual
fee for nonpower (test and research) reactors. In FY 1994, $373,000 in
costs are attributable to those commercial and non-exempt Federal
government organizations that are licensed to operate test and research
reactors. Applying these costs uniformly to those nonpower reactors
subject to fees results in an annual fee of $62,200 per operating
license. The Energy Policy Act establishes an exemption for certain
Federally-owned research reactors that are used primarily for
educational training and academic research purposes where the design of
the reactor satisfies certain technical specifications set forth in the
legislation. Consistent with this legislative requirement, the NRC
granted an exemption from annual fees for FY 1992 and FY 1993 to the
Veterans Administration Medical Center in Omaha, Nebraska, the U.S.
Geological Survey for its reactor in Denver, Colorado, and the Armed
Forces Radiobiological Institute in Bethesda, Maryland for its research
reactor. This exemption was initially codified in the July 20, 1993 (58
FR 38695) final fee rule at Sec. 171.11(a) and more recently in the
March 17, 1994 (59 FR 12543) final rule at Sec. 171.11(a)(2). The NRC
intends to continue to grant exemptions from the annual fee to those
Federally owned research and test reactors who meet the exemption
criteria specified in Sec. 171.11. The NRC is amending
Sec. 171.11(a)(2) to exempt from annual fees the research reactor owned
by the Rhode Island Atomic Energy Commission.
Section 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.
Sec. 171.16(c) covers the fees assessed for those licensees that
can qualify as small entities under NRC size standards. Currently, the
NRC assesses two fees for licensees that qualify as small entities
under the NRC's size standards. In general, licensees with gross annual
receipts of $250,000 to $3.5 million pay a maximum annual fee of $1,800
per licensed category. A second or lower-tier small entity fee of $400
is in place for licensees with gross annual receipts of less than
$250,000 and small governmental jurisdictions with a population of less
than 20,000. Although the amounts of the small entity fees have not
changed for FY 1994, they are being published for purposes of
convenience.
Paragraph (d) is revised to reflect the FY 1994 budgeted costs for
materials licensees, including Government agencies, licensed by the
NRC. These fees are necessary to recover the FY 1994 generic costs
totalling $63.7 million that apply to fuel facilities, uranium recovery
facilities, spent fuel facilities, holders of transportation
certificates and QA program approvals, and other materials licensees,
including holders of sealed source and device registrations.
Fee Category 2 is amended by establishing two new fee categories
2.A.(3) and 2.A.(4) relating to the disposal of Section 11e.(2)
byproduct material as defined by the Atomic Energy Act. The current
4.D. category has been eliminated. This action recognizes that (1) part
of the budgeted costs for the uranium recovery class of licensees
should be allocated to source material licenses that authorize receipt
and disposal of 11e.(2) material because some of these budgeted
resources are used to regulate these licensees and (2) a further
distinction should be made between those licenses whose primary purpose
is to authorize disposal of 11e.(2) byproduct material requiring the
establishment of a new mill tailings pile for disposal of 11e.(2)
material and those non-operating mills that accept 11e.(2) byproduct
material for disposal incidental to tailings piles created by mill
operations.
In addition, Fee Category 18 is amended to assess fees to the
Department of Energy (DOE) for use of the general license provided
under 10 CFR 40.27. Currently, DOE is billed for the issuance of
transportation Certificates of Compliance. The general license fulfills
a requirement of the Uranium Mill Tailings Radiation Control Act of
1978 (UMTRCA) (Public Law 95-604) that the perpetual custodian of
reclaimed uranium mill tailings piles be licensed by the NRC. The
Sec. 40.27 general license covers only post-reclamation closure custody
and site surveillance. In September 1993, DOE became a general licensee
of the NRC because post-reclamation closure of the Spook, Wyoming site
had been achieved. Because DOE now holds an NRC license, it is subject
to annual fees. The NRC had previously indicated its intent in the FY
1991 final fee rule to bill DOE for UMTRCA costs once post-closure was
achieved and the sites were licensed by the Government (56 FR 31481;
July 10, 1991). As a result, DOE will be billed for the costs
associated with NRC's UMTRCA review of all activities associated with
the facilities assigned to DOE under UMTRCA. As with other licensees,
the annual fee for this class of licensees (DOE UMTRCA facilities) will
recover the generic and other regulatory costs not recovered through 10
CFR Part 170 fees. Because DOE, as a Federal agency, cannot be assessed
Part 170 fees under the IOAA, the NRC will assess annual fees for the
total costs of DOE UMTRCA activities to DOE.
Tables VI and VII show the NRC program elements and resources that
are attributable to fuel facilities and materials users, respectively.
The costs attributable to the uranium recovery class of licensees are
those associated with uranium recovery research, licensing and
inspection. For transportation, the costs are those budgeted for
transportation research, licensing, and inspection. Similarly, the
budgeted costs for spent fuel storage are those for spent fuel storage
research, licensing, and inspection.
Table VI.--Allocation of NRC FY 1994 Budget to Fuel Facility Base Fees\1\
----------------------------------------------------------------------------------------------------------------
Total program Allocated to fuel
element facility
-------------------------------------------
Program Program
support FTE support FTE
$, K $, K
----------------------------------------------------------------------------------------------------------------
NMLL (Research)
Radiation Protection/Health Effects................................. $1,575 5.3 $315 1.1
Environmental Policy and Decommissioning............................ 2,410 9.0 241 .9
-------------------------------------------
NMLL (RES) program total........................................ 556 2.0
===========================================
NMLL (NMSS)
Fuel Cycle Safety and Safeguards.................................... $4,783 85.8 $2,432 57.1
Event Evaluation.................................................... 0 14.9 0 4.2
Decommissioning..................................................... 2,215 30.8 309 10.5
Uranium Recovery (Dam Safety)....................................... 250 7.6 3 0
-------------------------------------------
NMLL (NMSS) program total....................................... 2,744 71.8
===========================================
NMLL (MSIRIE)
Incident Response................................................... 186 6.0 0 1.0
Enforcement......................................................... 10 6.8 0 1.2
-------------------------------------------
NMLL MSIRIE program total....................................... 0 2.2
===========================================
Total NMLL.................................................. $3,300 76.0
===========================================
Total base fee amount allocated to fuel facilities (million\2\). $20.8
Less part 170 fuel facility fees (million)...................... 4.0
-------------------------------------------
Part 171 base fees for fuel facilities (million)............ $16.8
----------------------------------------------------------------------------------------------------------------
\1\Base annual fee includes all costs attributable to the fuel facility class of licensees. The base fee does
not include costs allocated to fuel facilities for policy reasons.
\2\Amount is obtained by multiplying the direct FTE times the rate per FTE and adding the program support funds.
Table VII.--Allocation of FY 1994 Budget to Material Users' Base Fees\1\
----------------------------------------------------------------------------------------------------------------
Total program Allocated to
element materials users
-------------------------------------------
Program Program
support FTE support FTE
$, K $, K
----------------------------------------------------------------------------------------------------------------
NMLL (Research)
Materials licensee performance...................................... $450 1.2 $405 1.1
Materials regulatory standards...................................... 1,495 12.2 1,346 11.0
Radiation protection/health effects................................. 1,575 5.3 1,134 3.8
Environmental policy and decommissioning............................ 2,410 9.0 1,085 4.1
-------------------------------------------
Total NMLL (RES)................................................ 3,970 20.0
===========================================
NMLL (NMSS)
Licensing/inspection of materials users............................. $965 109.3 $869 99.5
Event evaluation.................................................... ......... 16.2 ......... 11.4
Information technology.............................................. 1,100 ......... 89 .........
Decommissioning..................................................... 2,215 30.8 1,707 12.0
Low level waste--on site disposal................................... 592 14.3 71 2.3
-------------------------------------------
Total NMLL (NMSS)............................................... 2,736 125.2
===========================================
NMLL (MSIRIE)
Analysis and evaluation of operational data......................... $186 6.0 $167 4.5
Office of Investigations............................................ ......... 7.0 ......... 6.3
Office of Enforcement............................................... 10 6.8 9 5.0
-------------------------------------------
Total NMLL Program.............................................. 6,882 161.0
===========================================
Base amount allocated to materials users (million\2\)........... $44.1
Less part 170 material users fees (million)..................... 5.5
-------------------------------------------
PART 171 base fees for material users (million)............. 38.6
----------------------------------------------------------------------------------------------------------------
\1\Base annual fee includes all costs attributable to the materials class of licensees. The base fee does not
include costs allocated to materials licensees for policy reasons.
\2\Amount is obtained by multiplying the direct FTE times the rate per FTE and adding the program support funds.
The allocation of the NRC's $16.8 million in budgeted costs to the
individual fuel facilities is based, as in FYs 1991-1993, primarily on
the OBRA-90 conferees' guidance that licensees who require the greatest
expenditure of NRC resources should pay the greatest annual fee.
Because the two high-enriched fuel manufacturing facilities possess
strategic quantities of nuclear materials, more NRC safeguards costs
(e.g., physical security) are attributable to these facilities.
Likewise, more of the safety licensing and inspection costs are
allocated to the HEU facilities because more of these resources are
used for HEU facilities as compared to other facilities. However,
safety program assessment and safety event evaluation costs for fuel
facilities are uniformly allocated to HEU and LEU facilities because
these activities apply equally to each of the HEU and LEU facilities.
Using this approach, the base annual fee for each facility is shown
below.
------------------------------------------------------------------------
Annual fee--
Type of facility safeguards and
safety
------------------------------------------------------------------------
High enriched fuel:
Nuclear Fuel Services.............................. $3,176,000
Babcock and Wilcox................................. 3,176,000
----------------
Subtotal......................................... 6,352,000
================
Low enriched fuel:
Siemens Nuclear Power.............................. $1,429,000
Babcock and Wilcox................................. 1,429,000
General Electric................................... 1,429,000
Westinghouse....................................... 1,429,000
Combustion Engineering (Hematite).................. 1,429,000
General Atomics.................................... 1,429,000
----------------
Subtotal......................................... 8,574,000
================
UF6 conversion:
Allied-Signal Corp................................. $1,114,000
Other fuel facilities (3 facilities at $254,000
each)............................................. 762,000
----------------
Total............................................ 16,802,000
------------------------------------------------------------------------
One of Combustion Engineering's (CE) low enriched fuel facilities
has not been included in the fee base because of the D.C. Circuit Court
of Appeals' decision of March 16, 1993, directing the NRC to grant an
exemption for FY 1991 to Combustion Engineering for one of its two
facilities. As a result of the Court's decision, the NRC granted an
exemption to one of CE's low enriched uranium fuel facilities for FY
1994. The NRC has therefore excluded this facility from the calculation
of the FY 1994 annual fees for the low enriched fuel category.
Of the $2.1 million attributable to the uranium recovery class of
licensees, about $1.5 million will be assessed to the Department of
Energy (DOE) to recover the costs associated with DOE facilities under
the Uranium Mill Tailings Radiation Control Act of 1978 (UMTRCA). These
costs were previously recovered from operating power reactors because
DOE was not an NRC licensee prior to September 1993 and therefore could
not be billed under 10 CFR Part 171. In September 1993, DOE became a
general licensee of the NRC because post-reclamation closure of the
Spook, Wyoming site had been achieved. Approximately 44 percent of the
remaining costs of $639,000 for uranium recovery is attributable to
uranium mills (Class I facilities) and facilities that dispose of
11e.(2) byproduct materials, approximately 39 percent is attributable
to those solution mining licensees who do not generate uranium mill
tailings (Class II facilities), and the remaining 17 percent is
allocated to the other uranium recovery facilities (e.g., extraction of
metals and rare earths). The resulting annual fees for each class of
licensee are:
2.A.(2)--Class I facilities: $74,500
2.A.(2)--Class II facilities: $41,200
2.A.(2)--Other facilities: $36,200
2.A.(3)--11e.(2) disposal: $67,000
2.A.(4)--11e.(2) disposal incidental to existing tailings site: $8,700
The annual fees for FY 1994 for the uranium recovery class of
licensees are less than the FY 1992 fees and are higher than the FY
1993 annual fees. The total amount of fees that must be recovered from
uranium recovery commercial licensees has decreased by about 10 percent
compared to FY 1993; however, the annual fee per facility has increased
for two basic reasons. First, the amount that is expected to be
recovered through part 170 fees has decreased as a result of completing
the licensing of the Envirocare 11e.(2) byproduct disposal facility.
This requires relatively more costs to be recovered through annual
fees. The second cause of the increase is a decrease in the number of
licensees in the class to be assessed annual fees for FY 1994.
For spent fuel storage licenses, the generic costs of $2.2 million
have been spread uniformly among those licensees who hold specific or
general licenses for receipt and storage of spent fuel at an ISFSI.
This results in an annual fee of $363,500. This represents a fee
increase compared to FY 1993 in order to recover the increased budget
necessary to perform rulemakings and the regulatory oversight over the
increased number of licensees.
To equitably and fairly allocate the $38.6 million attributable to
the approximately 6,500 diverse material users and registrants, the NRC
has continued to base the annual fee on the Part 170 application and
inspection fees. Because the application and inspection fees are
indicative of the complexity of the license, this approach continues to
provide a proxy for allocating the costs to the diverse categories of
licensees based on how much it costs NRC to regulate each category. The
fee calculation also continues to consider the inspection frequency,
which is indicative of the safety risk and resulting regulatory costs
associated with the categories of licensees. In summary, the annual fee
for these categories of licenses is developed as follows:
Annual Fee=(Application Fee+Inspection Fee/Inspection
Priority)xConstant+(Unique Category Costs).
The constant is the multiple necessary to recover $38.6 million and
is 2.6 for FY 1994. The unique costs are any special costs that the NRC
has budgeted for a specific category of licensees. For FY 1994, unique
costs of approximately $2.6 million were identified for the medical
improvement program which is attributable to medical licensees.
Materials annual fees for FY 1994 are 13 to 17 percent higher compared
to the FY 1993 annual fees. There are two basic reasons for the changes
in the fees from FY 1993. First, the FY 1994 budgeted amount
attributable to materials licensees is about 10 percent higher than the
comparable FY 1993 to reflect the cost necessary to regulate this class
of licensees and the direct allocation of certain budgeted costs as
opposed to including them in the hourly rate. Second, the number of
licensees to be assessed annual fees in FY 1994 has decreased (from
about 6,800 to about 6,500), resulting in a 4 percent increase in fees.
The materials fees must be established at these levels in order to
comply with the mandate of OBRA-90 to recover approximately 100 percent
of the NRC's FY 1994 budget authority.
A materials licensee may pay a reduced annual fee if the licensee
qualifies as a small entity under the NRC's size standards and
certifies that it is a small entity using NRC Form 526.
To recover the $4.0 million attributable to the transportation
class of licensees, $923,000 will be assessed to the Department of
Energy (DOE) to cover all of its transportation casks under Category
18. The remaining transportation costs for generic activities ($3.1
million) are allocated to holders of approved QA plans. The annual fee
for approved QA plans is $64,700 for users and fabricators and $900 for
users only.
The amount or range of the FY 1994 base annual fees for all
materials licensees is summarized as follows:
Materials Licenses Base Annual Fee Ranges
------------------------------------------------------------------------
Category of license Annual fees
------------------------------------------------------------------------
Part 70--High enriched fuel........ $3.2 million.
Part 70--Low enriched fuel......... $1.4 million.
Part 40--UF6 conversion............ $1.1 million.
Part 40--Uranium recovery.......... $36,200 to $74,500.
Part 30--Byproduct material........ $970 to $30,900\1\.
Part 71--Transportation of $900 to $64,700.
radioactive material.
Part 72--Independent storage of $363,500.
spent nuclear fuel.
------------------------------------------------------------------------
\1\Excludes the annual fee for a few military ``master'' materials
licenses of broad-scope issued to Government agencies, which is
$430,500.
Paragraph (e) is amended to establish the additional charge to be
added to the base annual fees shown in paragraph (d) of this final
rule. The Commission is continuing the approach used in FY 1993 so as
to assess the budgeted low-level waste (LLW) costs to two broad
categories of licensees (large LLW generators and small LLW generators)
based on historical disposal data. This surcharge continues to be
shown, for convenience, with the applicable categories in paragraph
(d). Although these NRC LLW disposal regulatory activities are not
directly attributable to regulation of NRC materials licensees, the
costs nevertheless must be recovered in order to comply with the
requirements of OBRA-90. For FY 1994, the additional charge recovers
approximately 18 percent of the NRC budgeted costs of $8.1 million
relating to LLW disposal generic activities from small generators,
which are comprised of materials licensees that dispose of LLW. The
percentage distribution reflects the deletion of LLW disposed by
Agreement State licensees. The FY 1994 budgeted costs related to the
additional charge for LLW and the amount of the charge are calculated
as follows:
------------------------------------------------------------------------
FY 1994
budgeted
Category of costs costs ($ in
millions)
------------------------------------------------------------------------
1. Activities not attributable to an existing NRC licensee
or class of licensee, i.e., LLW disposal generic
activities................................................ $8.1
------------------------------------------------------------------------
Of the $8.1 million in budgeted costs shown above for LLW
activities, 82 percent of the amount ($6.7 million) are allocated to
the 120 large waste generators (reactors and fuel facilities) included
in 10 CFR Part 171. This results in an additional charge of $55,600 per
facility. Thus, the LLW charge will be $55,600 per HEU, LEU, UF6
facility, and each of the other 3 fuel facilities. The remaining $1.4
million is allocated to the material licensees in categories that
generate low level waste (965 licensees) as follows: $1,500 per
materials license except for those in Category 17. Those licensees that
generate a significant amount of low level waste for purposes of the
calculation of the $1,500 surcharge are in fee Categories 1.B, 1.D,
2.C, 3.A, 3.B, 3.C, 3.L, 3.M, 3.N, 4.A, 4.B, 4.C, 5.B, 6.A, and 7.B.
The surcharge for licenses in fee Category 17, which also generate and/
or dispose of low level waste, is $22,800.
Of the $6.3 million not recovered from small entities, $1.0 million
is allocated to fuel facilities and other materials licensees. This
results in a surcharge of $170 per category for each fuel facility and
materials licensee that is not eligible for the small entity fee.
On the basis of this calculation, a fuel facility (a high enriched
fuel fabrication licensee, for example) pays a base annual fee of
$3,176,000 and an additional charge of $55,770 for LLW activities and
small entity costs. A medical center with a broad-scope program pays a
base annual fee of $30,900 and an additional charge of $1,670, for a
total FY 1994 annual fee of $32,570.
Section 171.17 Proration
10 CFR 171.17 is amended to add a proration provision for materials
licenses and to revise the provision for reactors. The annual fee for
materials licenses would be prorated based on applications filed after
October 1 of the fiscal year either to terminate a license or obtain a
POL. Those materials licensees who file applications between October 1
and March 31 of the fiscal year to terminate the license or obtain a
POL will be assessed one-half the annual fee stated in Sec. 171.16(d)
for the affected fee category(ies). Those materials licensees who file
applications on or after April 1 of the fiscal year to terminate a
license or obtain a POL will be assessed the full annual fee for that
fiscal year. Those licensees who file for termination or a POL must
also permanently cease operations of those licensed activities during
the periods mentioned for the fee to be reduced. Similarly, materials
licensees who were issued new licenses during the fiscal year will be
charged a prorated annual fee based on the date of issuance of the new
license. New materials licenses issued during the period October 1
through March 31 will be assessed one-half of the annual fee stated in
Sec. 171.16(d) for the applicable fee categories for that fiscal year.
New licenses issued on or after April 1 of the fiscal year will not be
assessed the annual fee for that fiscal year.
The proration provision in Sec. 171.17 applicable to reactors is
amended to provide that for licensees who have requested a license
amendment to withdraw operating authority permanently during the FY the
annual fee will be prorated based on the number of days during the FY
the operating license was in effect before the possession-only license
was issued or the license was terminated.
Footnote 1 of 10 CFR 171.16(d) is amended to provide for waiver of
the annual fees for those materials licensees, and holders of
certificates, registrations, and approvals who either filed for
termination of their licenses or approvals or filed for possession
only/storage only licenses before October 1, 1993, and permanently
ceased licensed activities entirely by September 30, 1993. All other
licensees and approval holders who held a license or approval on
October 1, 1993 are subject to the FY 1994 annual fees.
Section 171.19 Payment
This section is revised to give credit for partial payments made by
certain licensees in FY 1994 toward their FY 1994 annual fees. The NRC
anticipates that the first, second, and third quarterly payments for FY
1994 will have been made by operating power reactor licensees and some
materials licensees before the final rule is effective. Therefore, NRC
will credit payments received for those three quarters toward the total
annual fee to be assessed. The NRC will adjust the fourth quarterly
bill in order to recover the full amount of the revised annual fee or
to make refunds, as necessary. As in FY 1993, payment of the annual fee
is due on the effective date of the rule and interest accrues from the
effective date of the rule. However, interest will be waived if payment
is received within 30 days from the effective date of the rule.
During the past three years many licensees have indicated that
although they held a valid NRC license authorizing the possession and
use of special nuclear, source, or byproduct material, they were in
fact either not using the material to conduct operations or had
disposed of the material and no longer needed the license. In
responding to licensees about this matter, the NRC has stated that
annual fees are assessed based on whether a licensee holds a valid NRC
license that authorizes possession and use of radioactive material.
Whether or not a licensee is actually conducting operations using the
material is a matter of licensee discretion. The NRC cannot control
whether a licensee elects to possess and use radioactive material once
it receives a license from the NRC. Therefore, the NRC reemphasizes
that the annual fee will be assessed based on whether a licensee holds
a valid NRC license that authorizes possession and use of radioactive
material. To remove any uncertainty, the NRC issued minor clarifying
amendments to 10 CFR 171.16, footnotes 1 and 7 on July 20, 1993 (58 FR
38700).
V. Environmental Impact: Categorical Exclusion
The NRC has determined that this final rule is the type of action
described in categorical exclusion 10 CFR 51.22(c)(1). Therefore,
neither an environmental impact statement nor an environmental impact
assessment has been prepared for the final regulation.
VI. Paperwork Reduction Act Statement
This final rule contains no information collection requirements
and, therefore, is not subject to the requirements of the Paperwork
Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
VII. Regulatory Analysis
With respect to 10 CFR Part 170, this final rule was developed
pursuant to Title V of the Independent Offices Appropriation Act of
1952 (IOAA) (31 U.S.C. 9701) and the Commission's fee guidelines. When
developing these guidelines the Commission took into account guidance
provided by the U.S. Supreme Court on March 4, 1974, in its decision of
National Cable Television Association, Inc. v. United States, 415 U.S.
36 (1974) and Federal Power Commission v. New England Power Company,
415 U.S. 345 (1974). In these decisions, the Court held that the IOAA
authorizes an agency to charge fees for special benefits rendered to
identifiable persons measured by the ``value to the recipient'' of the
agency service. The meaning of the IOAA was further clarified on
December 16, 1976, by four decisions of the U.S. Court of Appeals for
the District of Columbia, National Cable Television Association v.
Federal Communications Commission, 554 F.2d 1094 (D.C. Cir. 1976);
National Association of Broadcasters v. Federal Communications
Commission, 554 F.2d 1118 (D.C. Cir. 1976); Electronic Industries
Association v. Federal Communications Commission, 554 F.2d 1109 (D.C.
Cir. 1976) and Capital Cities Communication, Inc. v. Federal
Communications Commission, 554 F.2d 1135 (D.C. Cir. 1976). These
decisions of the Courts enabled the Commission to develop fee
guidelines that are still used for cost recovery and fee development
purposes.
The Commission's fee guidelines were upheld on August 24, 1979, by
the U.S. Court of Appeals for the Fifth Circuit in Mississippi Power
and Light Co. v. U.S. Nuclear Regulatory Commission, 601 F.2d 223 (5th
Cir. 1979), cert. denied, 444 U.S. 1102 (1980). The Court held that--
(1) The NRC had the authority to recover the full cost of providing
services to identifiable beneficiaries;
(2) The NRC could properly assess a fee for the costs of providing
routine inspections necessary to ensure a licensee's compliance with
the Atomic Energy Act and with applicable regulations;
(3) The NRC could charge for costs incurred in conducting
environmental reviews required by NEPA;
(4) The NRC properly included the costs of uncontested hearings and
of administrative and technical support services in the fee schedule;
(5) The NRC could assess a fee for renewing a license to operate a
low-level radioactive waste burial site; and
(6) The NRC's fees were not arbitrary or capricious.
With respect to 10 CFR Part 171, on November 5, 1990, the Congress
passed Public Law 101-508, the Omnibus Budget Reconciliation Act of
1990 (OBRA-90) which required that for FYs 1991 through 1995,
approximately 100 percent of the NRC budget authority be recovered
through the assessment of fees. OBRA-90 was amended in 1993 to extend
the 100 percent fee recovery requirement for NRC through 1998. To
accomplish this statutory requirement, the NRC, in accordance with
Sec. 171.13, is publishing the final amount of the FY 1994 annual fees
for operating reactor licensees, fuel cycle licensees, materials
licensees, and holders of Certificates of Compliance, registrations of
sealed source and devices and QA program approvals, and Government
agencies. OBRA-90 and the Conference Committee Report specifically
state that--
(1) The annual fees be based on the Commission's FY 1994 budget of
$535.0 million less the amounts collected from Part 170 fees and the
funds directly appropriated from the NWF to cover the NRC's high level
waste program;
(2) The annual fees shall, to the maximum extent practicable, have
a reasonable relationship to the cost of regulatory services provided
by the Commission; and
(3) The annual fees be assessed to those licensees the Commission,
in its discretion, determines can fairly, equitably, and practicably
contribute to their payment.
Therefore, when developing the annual fees for operating power
reactors, the NRC continued to consider the various reactor vendors,
the types of containment, and the location of the operating power
reactors. The annual fees for fuel cycle licensees, materials
licensees, and holders of certificates, registrations and approvals and
for licenses issued to Government agencies take into account the type
of facility or approval and the classes of the licensees.
10 CFR Part 171, which established annual fees for operating power
reactors effective October 20, 1986 (51 FR 33224; September 18, 1986),
was challenged and upheld in its entirety in Florida Power and Light
Company v. United States, 846 F.2d 765 (D.C. Cir. 1988), cert. denied,
490 U.S. 1045 (1989).
10 CFR Parts 170 and 171, which established fees based on the FY
1989 budget, were also legally challenged. As a result of the Supreme
Court decision in Skinner v. Mid-American Pipeline Co., 109 S. Ct. 1726
(1989), and the denial of certiorari in Florida Power and Light, all of
the lawsuits were withdrawn.
The NRC's FY 1991 annual fee rule was largely upheld by the D.C.
Circuit Court of Appeals in Allied-Signal v. NRC, 988 F.2d 146 (D.C.
Cir. 1993).
VIII. Regulatory Flexibility Analysis
The NRC is required by the Omnibus Budget Reconciliation Act of
1990 to recover approximately 100 percent of its budget authority
through the assessment of user fees. OBRA-90 further requires that the
NRC establish a schedule of charges that fairly and equitably allocates
the aggregate amount of these charges among licensees.
This final rule establishes the schedules of fees that are
necessary to implement the Congressional mandate for FY 1994. The final
rule results in an increase in the fees charged to most licensees, and
holders of certificates, registrations, and approvals, including those
licensees who are classified as small entities under the Regulatory
Flexibility Act. The Regulatory Flexibility Analysis, prepared in
accordance with 5 U.S.C. 604, is included as Appendix A to this final
rule.
IX. Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this final rule and that a backfit analysis is not
required for this final rule. The backfit analysis is not required
because these final amendments do not require the modification of or
additions to systems, structures, components, or 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.
List of Subjects
10 CFR Part 170
Byproduct material, Import and export licenses, Intergovernmental
relations, Non-payment penalties, 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, Non-payment
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, and 5 U.S.C. 552 and 553,
the NRC is adopting 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
1. The authority citation for Part 170 continues to read as
follows:
Authority: 31 U.S.C. 9701, 96 Stat. 1051; sec. 301, Pub. L. 92-
314, 86 Stat. 222 (42 U.S.C. 2201w); sec. 201, Pub. L. 93-4381, 88
Stat. 1242, as amended (42 U.S.C. 5841); sec. 205, Pub. L. 101-576,
104 Stat. 2842, (31 U.S.C. 901).
2. In Sec. 170.3, the definition special projects is revised to
read as follows:
Sec. 170.3 Definitions.
* * * * *
Special projects means those requests submitted to the Commission
for review for which fees are not otherwise specified in this chapter.
Examples of special projects include, but are not limited to, topical
and other report reviews, early site reviews, waste solidification
facilities, route approvals for shipment of radioactive materials, and
services provided to certify licensee, vendor, or other private
industry personnel as instructors for Part 55 reactor operators. As
used in this part, special projects does not include requests/reports
submitted to the NRC:
(1) In response to a Generic Letter or NRC Bulletin which does not
result in an amendment to the license, does not result in the review of
an alternate method or reanalysis to meet the requirements of the
Generic Letter, or does not involve an unreviewed safety issue;
(2) In response to an NRC request (at the Associate Office Director
level or above) to resolve an identified safety, safeguards or
environmental issue, or to assist NRC in developing a rule, regulatory
guide, policy statement, generic letter, or bulletin; or
(3) As a means of exchanging information between industry
organizations and the NRC for the purpose of supporting generic
regulatory improvements or efforts.
* * * * *
3. In Sec. 170.11, a new paragraph (a)(9) is added to read as
follows:
Sec. 170.11 Exemptions.
(a) * * *
(9) State-owned research reactors used primarily for educational
training and academic research purposes. For purposes of this
exemption, the term research reactor means a nuclear reactor that--
(i) Is licensed by the Nuclear Regulatory Commission under section
104c. of the Atomic Energy Act of 1954 (42 U.S.C. 2134(c)) for
operation at a thermal power level of 10 megawatts or less; and
(ii) If so licensed for operation at a thermal power level or more
than 1 megawatt, does not contain--
(A) A circulating loop through the core in which the licensee
conducts fuel experiments;
(B) A liquid fuel loading; or
(C) An experimental facility in the core in excess of 16 square
inches in cross-section.
* * * * *
4. Section 170.20 is revised to read as follows:
Sec. 170.20 Average cost per professional staff-hour.
Fees for permits, licenses, amendments, renewals, special projects,
Part 55 requalification and replacement examinations and tests, other
required reviews, approvals, and inspections under Secs. 170.21 and
170.31 that are based upon the full costs for the review or inspection
will be calculated using a professional staff-hour rate equivalent to
the sum of the average cost to the agency for a professional staff
member, including salary and benefits, administrative support, travel,
and certain program support. The professional staff-hour rate for the
NRC based on the FY 1994 budget is $133 per hour.
5. In Sec. 170.21, the introductory paragraph, Category J, Category
K, and footnotes 1 and 2 to the table are revised and a new footnote 4
is added to read as follows:
Sec. 170.21 Schedule of fees for production and utilization
facilities, review of standard referenced design approvals, special
projects, inspections, and import and export licenses.
Applicants for construction permits, manufacturing licenses,
operating licenses, import and export licenses, approvals of facility
standard reference designs, requalification and replacement
examinations for reactor operators, and special projects and holders of
construction permits, licenses, and other approvals shall pay fees for
the following categories of services.
Schedule of Facility Fees
[See footnotes at end of table]
------------------------------------------------------------------------
Facility categories and type of fees Fees\1\ \2\
------------------------------------------------------------------------
* * * * * * *
J. Special Projects:\4\
Approvals and preapplication/licensing Full Cost.
activities.
Inspections\3\................................ Full Cost.
K. Import and export licenses:
Licenses for the import and export only of
production and utilization facilities or the
import and export only of components for
production and utilization facilities issued
pursuant to 10 CFR part 110.
1. Application for import or export of
reactors and other facilities and components
which must be reviewed by the Commission and
the Executive Branch, for example, actions
under 10 CFR 110.40(b).
Application-new license................... $8,600
Amendment................................. $8,600
2. Application for import or export of reactor
components and initial exports of other
equipment requiring Executive Branch review
only, for example, those actions under 10 CFR
110.41(a)(1)-(8).
Application-new license................... $5,300
Amendment................................. $5,300
3. Application for export of components
requiring foreign government assurances only.
Application-new license................... $3,300
Amendment................................. $3,300
4. Application for export or import of other
facility components and equipment not
requiring Commission review, Executive Branch
review, or foreign government assurances.
Application-new license................... $1,300
Amendment................................. $1,300
5. Minor amendment of any export or import
license to extend the expiration date, change
domestic information, or make other revisions
which do not require analysis or review.
Amendment................................. $130
------------------------------------------------------------------------
\1\Fees will not be charged for orders issued by the Commission pursuant
to Sec. 2.202 of this chapter or for amendments resulting specifically
from the requirements of these types of Commission orders. Fees will
be charged for approvals issued under a specific exemption provision
of the Commission's regulations under Title 10 of the Code of Federal
Regulations (e.g. Secs. 50.12, 73.5) and any other sections now or
hereafter in effect regardless of whether the approval is in the form
of a license amendment, letter of approval, safety evaluation report,
or other form. Fees for licenses in this schedule that are initially
issued for less than full power are based on review through the
issuance of a full power license (generally full power is considered
100 percent of the facility's full rated power). Thus, if a licensee
received a low power license or a temporary license for less than full
power and subsequently receives full power authority (by way of
license amendment or otherwise), the total costs for the license will
be determined through that period when authority is granted for full
power operation. If a situation arises in which the Commission
determines that full operating power for a particular facility should
be less than 100 percent of full rated power, the total costs for the
license will be at that determined lower operating power level and not
at the 100 percent capacity.
\2\Full cost fees will be determined based on the professional staff
time and appropriate contractual support services expended. For
applications currently on file and for which fees are determined based
on the full cost expended for the review, the professional staff hours
expended for the review of the application up to the effective date of
this rule will be determined at the professional rates established for
the rules that became effective on June 20, 1984, January 30, 1989,
July 2, 1990, August 9, 1991, August 24, 1992, and August 19, 1993, as
appropriate. For those applications currently on file for which review
costs have reached an applicable fee ceiling established by the June
20, 1984, and July 2, 1990, rules but are still pending completion of
the review, the cost incurred after any applicable ceiling was reached
through January 29, 1989, will not be billed to the applicant. Any
professional staff-hours expended above those ceilings on or after
January 30, 1989, will be assessed at the applicable rates established
by Sec. 170.20, as appropriate, except for topical reports whose costs
exceed $50,000. Costs which exceed $50,000 for any topical report,
amendment, revision or supplement to a topical report completed or
under review from January 30, 1989, through August 8, 1991, will not
be billed to the applicant. Any professional hours expended on or
after August 9, 1991, will be assessed at the applicable rate
established in Sec. 170.20. In no event will the total review costs be
less than twice the hourly rate shown in Sec. 170.20.
* * * * * * *
\4\Fees will not be assessed for requests/reports submitted to the NRC:
1. In response to a Generic Letter or NRC Bulletin that does not result
in an amendment to the license, does not result in the review of an
alternate method or reanalysis to meet the requirements of the Generic
Letter, or does not involve an unreviewed safety issue;
2. In response to an NRC request (at the Associate Office Director level
or above) to resolve an identified safety, safeguards, or
environmental issue, or to assist NRC in developing a rule, regulatory
guide, policy statement, generic letter, or bulletin; or
3. As a means of exchanging information between industry organizations
and the NRC for the purpose of supporting generic regulatory
improvements or efforts.
6. Section 170.31 is revised to read as follows:
Sec. 170.31 Schedule of fees for materials licenses and other
regulatory services, including inspections, and import and export
licenses.
Applicants for materials licenses, import and export licenses, and
other regulatory services and holders of materials licenses, or import
and export licenses shall pay fees for the following categories of
services. This schedule includes fees for health and safety and
safeguards inspections where applicable.
Schedule of Materials Fees
[See footnotes at end of table]
------------------------------------------------------------------------
Category of materials licenses and type of fees\1\ Fee\2\,\3\
------------------------------------------------------------------------
1. Special nuclear material:
A. Licenses for possession and use of 200
grams or more of plutonium in unsealed form
or 350 grams or more of contained U-235 in
unsealed form or 200 grams or more of U-233
in unsealed form. This includes applications
to terminate licenses as well as licenses
authorizing possession only:
License, Renewal, Amendment............... Full Cost.
Inspections............................... Full Cost.
B. Licenses for receipt and storage of spent
fuel at an independent spent fuel storage
installation (ISFSI):
License, Renewal, Amendment............... Full Cost.
Inspections............................... Full Cost.
C. Licenses for possession and use of special
nuclear material in sealed sources contained
in devices used in industrial measuring
systems, including x-ray fluorescence
analyzers:\4\
Application--New license.................. $570.
Renewal................................... $680.
Amendment................................. $360.
Inspections............................... $670.
D. All other special nuclear material
licenses, except licenses authorizing special
nuclear material in unsealed form in
combination that would constitute a critical
quantity, as defined in Sec. 150.11 of this
chapter, for which the licensee shall pay the
same fees as those for Category 1A:\4\
Application--New license.................. $600.
Renewal................................... $430.
Amendment................................. $330.
Inspections............................... $1,200.
E. Licenses for construction and operation of
a uranium enrichment facility.
Application............................... $125,000.
License, Renewal, Amendment............... Full Cost.
Inspections............................... Full Cost.
2. Source material:
A.(1) Licenses for possession and use of
source material in recovery operations such
as milling, in-situ leaching, heap-leaching,
refining uranium mill concentrates to uranium
hexafluoride, ore buying stations, ion
exchange facilities and in processing of ores
containing source material for extraction of
metals other than uranium or thorium,
including licenses authorizing the possession
of byproduct waste material (tailings) from
source material recovery operations, as well
as licenses authorizing the possession and
maintenance of a facility in a standby mode:
License, Renewal, Amendment............... Full Cost.
Inspections............................... Full Cost.
A.(2) Licenses that authorize the receipt,
from other persons, of byproduct material as
defined in Section 11e.(2) of the Atomic
Energy Act for possession and disposal except
those licenses subject to fees in Category
2.A.(1).
License, Renewal, Amendment............... Full Cost.
Inspections............................... Full Cost.
A.(3) Licenses that authorize the receipt,
from other persons, of byproduct material as
defined in Section 11e.(2) of the Atomic
Energy Act for possession and disposal
incidental to the disposal of the uranium
waste tailings generated by the licensee's
milling operations, except those licenses
subject to the fees in Category 2.A.(1).
License, Renewal, Amendment............... Full Cost.
Inspections............................... Full Cost.
B. Licenses which authorize only the
possession, use and/or installation of source
material for shielding:
Application--New license.................. $230.
Renewal................................... $160.
Amendment................................. $270.
Inspections............................... $560.
C. All other source material licenses:
Application--New license.................. $2,500.
Renewal................................... $1,400.
Amendment................................. $450.
Inspections............................... $2,500.
3. Byproduct material:
A. Licenses of broad scope for possession and
use of byproduct material issued pursuant to
Parts 30 and 33 of this chapter for
processing or manufacturing of items
containing byproduct material for commercial
distribution:
Application--New license.................. $2,700.
Renewal................................... $1,700.
Amendment................................. $470.
Inspections............................... $9,800.\5\
B. Other licenses for possession and use of
byproduct material issued pursuant to Part 30
of this chapter for processing or
manufacturing of items containing byproduct
material for commercial distribution:
Application--New license.................. $1,300.
Renewal................................... $2,200.
Amendment................................. $600.
Inspections............................... $3,000.\5\
C. Licenses issued pursuant to Secs. 32.72,
32.73, and/or 32.74 of this chapter
authorizing the processing or manufacturing
and distribution or redistribution of
radiopharmaceuticals, generators, reagent
kits and/or sources and devices containing
byproduct material:
Application--New license.................. $3,500.
Renewal................................... $3,000.
Amendment................................. $490.
Inspections............................... $3,400.
D. Licenses and approvals issued pursuant to
Secs. 32.72, 32.73, and/or 32.74 of this
chapter authorizing distribution or
redistribution of radiopharmaceuticals,
generators, reagent kits and/or sources or
devices not involving processing of byproduct
material:
Application--New license.................. $1,300.
Renewal................................... $550.
Amendment................................. $370.
Inspections............................... $3,000.
E. Licenses for possession and use of
byproduct material in sealed sources for
irradiation of materials in which the source
is not removed from its shield (self-shielded
units):
Application--New license.................. $930.
Renewal................................... $760.
Amendment................................. $330.
Inspections............................... $1,200.
F. Licenses for possession and use of less
than 10,000 curies of byproduct material in
sealed sources for irradiation of materials
in which the source is exposed for
irradiation purposes. This category also
includes underwater irradiators for
irradiation of materials where the source is
not exposed for irradiation purposes.
Application--New license.................. $1,300.
Renewal................................... $1,000.
Amendment................................. $330.
Inspections............................... $1,300.
G. Licenses for possession and use of 10,000
curies or more of byproduct material in
sealed sources for irradiation of materials
in which the source is exposed for
irradiation purposes. This category also
includes underwater irradiators for
irradiation of materials where the source is
not exposed for irradiation purposes.
Application--New license.................. $5,300.
Renewal................................... $4,800.
Amendment................................. $640.
Inspections............................... $4,100.
H. Licenses issued pursuant to Subpart A of
Part 32 of this chapter to distribute items
containing byproduct material that require
device review to persons exempt from the
licensing requirements of Part 30 of this
chapter, except specific licenses authorizing
redistribution of items that have been
authorized for distribution to persons exempt
from the licensing requirements of Part 30 of
this chapter:
Application--New license.................. $2,400.
Renewal................................... $2,300.
Amendment................................. $800.
Inspections............................... $1,100.
I. Licenses issued pursuant to Subpart A of
Part 32 of this chapter to distribute items
containing byproduct material or quantities
of byproduct material that do not require
device evaluation to persons exempt from the
licensing requirements of Part 30 of this
chapter, except for specific licenses
authorizing redistribution of items that have
been authorized for distribution to persons
exempt from the licensing requirements of
Part 30 of this chapter:
Application--New license.................. $4,600.
Renewal................................... $2,700.
Amendment................................. $1,100.
Inspections............................... $1,000.
J. Licenses issued pursuant to Subpart B of
Part 32 of this chapter to distribute items
containing byproduct material that require
sealed source and/or device review to persons
generally licensed under Part 31 of this
chapter, except specific licenses authorizing
redistribution of items that have been
authorized for distribution to persons
generally licensed under Part 31 of this
chapter:
Application--New license.................. $2,100.
Renewal................................... $1,400.
Amendment................................. $370.
Inspections............................... $1,800.
K. Licenses issued pursuant to Subpart B of
Part 32 of this chapter to distribute items
containing byproduct material or quantities
of byproduct material that do not require
sealed source and/or device review to persons
generally licensed under Part 31 of this
chapter, except specific licenses authorizing
redistribution of items that have been
authorized for distribution to persons
generally licensed under Part 31 of this
chapter:
Application--New license.................. $2,000.
Renewal................................... $1,400.
Amendment................................. $270.
Inspections............................... $1,000.
L. Licenses of broad scope for possession and
use of byproduct material issued pursuant to
Parts 30 and 33 of this chapter for research
and development that do not authorize
commercial distribution:
Application--New license.................. $4,100.
Renewal................................... $2,200.
Amendment................................. $630.
Inspections............................... $4,700.
M. Other licenses for possession and use of
byproduct material issued pursuant to Part 30
of this chapter for research and development
that do not authorize commercial
distribution:
Application--New license.................. $1,400.
Renewal................................... $1,500.
Amendment................................. $690.
Inspections............................... $2,200.
N. Licenses that authorize services for other
licensees, except (1) licenses that authorize
only calibration and/or leak testing services
are subject to the fees specified in fee
Category 3P, and (2) licenses that authorize
waste disposal services are subject to the
fees specified in fee Categories 4A, 4B, 4C,
and 4D:
Application--New license.................. $1,700.
Renewal................................... $2,100.
Amendment................................. $680.
Inspections............................... $2,400.
O. Licenses for possession and use of
byproduct material issued pursuant to Part 34
of this chapter for industrial radiography
operations:
Application--New license.................. $3,800.
Renewal................................... $2,900.
Amendment................................. $690.
Inspections............................... $3,500.\5\
P. All other specific byproduct material
licenses, except those in Categories 4A
through 9D:
Application--New license.................. $570.
Renewal................................... $680.
Amendment................................. $360.
Inspections............................... $1,500.
4. Waste disposal and processing:
A. Licenses specifically authorizing the
receipt of waste byproduct material, source
material, or special nuclear material from
other persons for the purpose of contingency
storage or commercial land disposal by the
licensee; or licenses authorizing contingency
storage of low-level radioactive waste at the
site of nuclear power reactors; or licenses
for receipt of waste from other persons for
incineration or other treatment, packaging of
resulting waste and residues, and transfer of
packages to another person authorized to
receive or dispose of waste material:
License, Renewal, Amendment............... Full Cost.
Inspections............................... Full Cost.
B. Licenses specifically authorizing the
receipt of waste byproduct material, source
material, or special nuclear material from
other persons for the purpose of packaging or
repackaging the material. The licensee will
dispose of the material by transfer to
another person authorized to receive or
dispose of the material:
Application--New license.................. $4,000.
Renewal................................... $2,100.
Amendment................................. $430.
Inspections............................... $2,300.
C. Licenses specifically authorizing the
receipt of prepackaged waste byproduct
material, source material, or special nuclear
material from other persons. The licensee
will dispose of the material by transfer to
another person authorized to receive or
dispose of the material:
Application--New license.................. $1,500.
Renewal................................... $1,100.
Amendment................................. $250.
Inspections............................... $2,800.
5. Well logging:
A. Licenses for possession and use of
byproduct material, source material, and/or
special nuclear material for well logging,
well surveys, and tracer studies other than
field flooding tracer studies:
Application--New license.................. $3,700.
Renewal................................... $3,900.
Amendment................................. $650.
Inspections............................... $3,600.
B. Licenses for possession and use of
byproduct material for field flooding tracer
studies:
License, Renewal, Amendment............... Full Cost.
Inspections............................... $1,300.
6. Nuclear laundries:
A. Licenses for commercial collection and
laundry of items contaminated with byproduct
material, source material, or special nuclear
material:
Application--New license.................. $4,500.
Renewal................................... $2,900.
Amendment................................. $700.
Inspections............................... $4,500.
7. Human use of byproduct, source, or special
nuclear material:
A. Licenses issued pursuant to Parts 30, 35,
40, and 70 of this chapter for human use of
byproduct material, source material, or
special nuclear material in sealed sources
contained in teletherapy devices:
Application--New license.................. $3,700.
Renewal................................... $1,200.
Amendment................................. $560.
Inspections............................... $2,300.
B. Licenses of broad scope issued to medical
institutions or two or more physicians
pursuant to Parts 30, 33, 35, 40, and 70 of
this chapter authorizing research and
development, including human use of byproduct
material, except licenses for byproduct
material, source material, or special nuclear
material in sealed sources contained in
teletherapy devices:
Application--New license.................. $2,700.
Renewal................................... $3,500.
Amendment................................. $500.
Inspections............................... $8,700.
C. Other licenses issued pursuant to Parts 30,
35, 40, and 70 of this chapter for human use
of byproduct material, source material, and/
or special nuclear material, except licenses
for byproduct material, source material, or
special nuclear material in sealed sources
contained in teletherapy devices:
Application--New license.................. $1,100.
Renewal................................... $1,400.
Amendment................................. $500.
Inspections............................... $2,100.
8. Civil defense:
A. Licenses for possession and use of
byproduct material, source material, or
special nuclear material for civil defense
activities:
Application--New license.................. $670.
Renewal................................... $700.
Amendment................................. $480.
Inspections............................... $1,100.
9. Device, product, or sealed source safety
evaluation:
A. Safety evaluation of devices or products
containing byproduct material, source
material, or special nuclear material, except
reactor fuel devices, for commercial
distribution:
Application--each device.................. $3,700.
Amendment--each device.................... $1,300.
Inspections............................... Full Cost.
B. Safety evaluation of devices or products
containing byproduct material, source
material, or special nuclear material
manufactured in accordance with the unique
specifications of, and for use by, a single
applicant, except reactor fuel devices:
Application--each device.................. $1,900.
Amendment--each device.................... $670.
Inspections............................... Full Cost.
C. Safety evaluation of sealed sources
containing byproduct material, source
material, or special nuclear material, except
reactor fuel, for commercial distribution:
Application--each source................. $800.
Amendment--each source.................... $270.
Inspections............................... Full Cost.
D. Safety evaluation of sealed sources
containing byproduct material, source
material, or special nuclear material,
manufactured in accordance with the unique
specifications of, and for use by, a single
applicant, except reactor fuel:
Application--each source.................. $400.
Amendment--each source.................... $130.
Inspections............................... Full Cost.
10. Transportation of radioactive material:
A. Evaluation of casks, packages, and shipping
containers:
Approval, Renewal, Amendment.............. Full Cost.
Inspections............................... Full Cost.
B. Evaluation of 10 CFR Part 71 quality
assurance programs:
Application--Approval..................... $370.
Renewal................................... $280.
Amendment................................. $320.
Inspections............................... Full Cost.
11. Review of standardized spent fuel facilities:
Approval, Renewal, Amendment.............. Full Cost.
Inspections............................... Full Cost.
12. Special projects:\6\
Approvals and preapplication/licensing Full Cost.
activities.
Inspections............................... Full Cost.
13. A. Spent fuel storage cask Certificate of
Compliance:
Approvals................................. Full Cost.
Amendments, revisions, and supplements.... Full Cost.
Reapproval................................ Full Cost.
B. Inspections related to spent fuel storage Full Cost.
cask Certificate of Compliance.
C. Inspections related to storage of spent Full Cost.
fuel under Sec. 72.210 of this chapter.
14. Byproduct, source, or special nuclear material
licenses and other approvals authorizing
decommissioning, decontamination, reclamation, or
site restoration activities pursuant to 10 CFR
Parts 30, 40, 70, and 72 of this chapter:
Approval, Renewal, Amendment.............. Full Cost.
Inspections............................... Full Cost.
15. Import and Export licenses:
Licenses issued pursuant to 10 CFR Part 110 of
this chapter for the import and export only
of special nuclear material, source material,
byproduct material, heavy water, tritium, or
nuclear grade graphite.
A. Application for import or export of HEU and
other materials which must be reviewed by the
Commission and the Executive Branch, for
example, those actions under 10 CFR
110.40(b).
Application--New license.................. $8,600.
Amendment................................. $8,600.
B. Application for import or export of special
nuclear material, heavy water, nuclear grade
graphite, tritium, and source material, and
initial exports of materials requiring
Executive Branch review only, for example,
those actions under 10 CFR 110.41(a)(2)-(8).
Application--New license.................. $5,300.
Amendment................................. $5,300.
C. Application for export of routine reloads
of LEU reactor fuel and exports of source
material requiring foreign government
assurances only.
Application--New license.................. $3,300.
Amendment................................. $3,300.
D. Application for export or import of other
materials not requiring Commission review,
Executive Branch review or foreign government
assurances.
Application--New license.................. $1,300.
Amendment................................. $1,300.
E. Minor amendment of any export or import
license to extend the expiration date, change
domestic information or make other revisions
which do not require analysis or review.
Amendment................................. $130.
16. Reciprocity:
Agreement State licensees who conduct
activities in a non-Agreement State under the
reciprocity provisions of 10 CFR 150.20.
Application (initial filing of Form 241).. $700.
Renewal................................... N/A.
Revisions................................. $200.
Inspections............................... Fees as specified in
appropriate fee
categories in this
section.
------------------------------------------------------------------------
\1\Types of fees--Separate charges, as shown in the schedule, will be
assessed for preapplication consultations and reviews and applications
for new licenses and approvals, issuance of new licenses and
approvals, amendments and renewals to existing licenses and approvals,
safety evaluations of sealed sources and devices, and inspections. The
following guidelines apply to these charges:
(a) Application fees--Applications for new materials licenses and
approvals; applications to reinstate expired, terminated or inactive
licenses and approvals except those subject to fees assessed at full
cost; and applications filed by Agreement State licensees to register
under the general license provisions of 10 CFR 150.20, must be
accompanied by the prescribed application fee for each category,
except that: (1) applications for licenses covering more than one fee
category of special nuclear material or source material must be
accompanied by the prescribed application fee for the highest fee
category; and (2) applications for licenses under Category 1E must be
accompanied by an application fee of $125,000.
(b) License/approval/review fees--Fees for applications for new licenses
and approvals and for preapplication consultations and reviews subject
to full cost fees (fee Categories 1A, 1B, 1E, 2A, 4A, 5B, 10A, 11, 12,
13A, and 14) are due upon notification by the Commission in accordance
with Sec. 170.12 (b), (e), and (f).
(c) Renewal/reapproval fees--Applications for renewal of licenses and
approvals must be accompanied by the prescribed renewal fee for each
category, except that fees for applications for renewal of licenses
and approvals subject to full cost fees (fee Categories 1A, 1B, 1E,
2A, 4A, 5B, 10A, 11, 12, 13A, and 14) are due upon notification by the
Commission in accordance with Sec. 170.12(d).
(d) Amendment/Revision Fees--
(1) Applications for amendments to licenses and approvals and revisions
to reciprocity initial applications, except those subject to fees
assessed at full costs, must be accompanied by the prescribed
amendment/revision fee for each license/revision affected. An
application for an amendment to a license or approval classified in
more than one fee category must be accompanied by the prescribed
amendment fee for the category affected by the amendment unless the
amendment is applicable to two or more fee categories in which case
the amendment fee for the highest fee category would apply. For those
licenses and approvals subject to full costs (fee Categories 1A, 1B,
1E, 2A, 4A, 5B, 10A, 11, 12, 13A, and 14), amendment fees are due upon
notification by the Commission in accordance with Sec. 170.12(c).
(2) An application for amendment to a materials license or approval that
would place the license or approval in a higher fee category or add a
new fee category must be accompanied by the prescribed application fee
for the new category.
(3) An application for amendment to a license or approval that would
reduce the scope of a licensee's program to a lower fee category must
be accompanied by the prescribed amendment fee for the lower fee
category.
(4) Applications to terminate licenses authorizing small materials
programs, when no dismantling or decontamination procedure is
required, are not subject to fees.
(e) Inspection fees--Although a single inspection fee is shown in the
regulation, separate charges will be assessed for each routine and
nonroutine inspection performed, including inspections conducted by
the NRC of Agreement State licensees who conduct activities in non-
Agreement States under the reciprocity provisions of 10 CFR 150.20.
Inspections resulting from investigations conducted by the Office of
Investigations and nonroutine inspections that result from third-party
allegations are not subject to fees. If a licensee holds more than one
materials license at a single location, a fee equal to the highest fee
category covered by the licenses will be assessed if the inspections
are conducted at the same time unless the inspection fees are based on
the full cost to conduct the inspection. The fees assessed at full
cost will be determined based on the professional staff time required
to conduct the inspection multiplied by the rate established under
Sec. 170.20 plus any applicable contractual support services costs
incurred. Licenses covering more than one category will be charged a
fee equal to the highest fee category covered by the license.
Inspection fees are due upon notification by the Commission in
accordance with Sec. 170.12(g). See Footnote 5 for other inspection
notes.
\2\Fees will not be charged for orders issued by the Commission pursuant
to 10 CFR 2.202 or for amendments resulting specifically from the
requirements of these types of Commission orders. However, fees will
be charged for approvals issued under a specific exemption provision
of the Commission's regulations under Title 10 of the Code of Federal
Regulations (e.g., 10 CFR 30.11, 40.14, 70.14, 73.5, and any other
sections now or hereafter in effect) regardless of whether the
approval is in the form of a license amendment, letter of approval,
safety evaluation report, or other form. In addition to the fee shown,
an applicant may be assessed an additional fee for sealed source and
device evaluations as shown in Categories 9A through 9D.
\3\Full cost fees will be determined based on the professional staff
time and appropriate contractual support services expended. For those
applications currently on file and for which fees are determined based
on the full cost expended for the review, the professional staff hours
expended for the review of the application up to the effective date of
this rule will be determined at the professional rates established for
the final rules that became effective on June 20, 1984, January 30,
1989, July 2, 1990, August 9, 1991, August 24, 1992, and August 19,
1993 rules, as appropriate. For applications currently on file for
which review costs have reached an applicable fee ceiling established
by the June 20, 1984, and July 2, 1990, rules, but are still pending
completion of the review, the cost incurred after any applicable
ceiling was reached through January 29, 1989, will not be billed to
the applicant. Any professional staff-hours expended above those
ceilings on or after January 30, 1989, will be assessed at the
applicable rates established by Sec. 170.20, as appropriate, except
for topical reports whose costs exceed $50,000. Costs which exceed
$50,000 for each topical report, amendment, revision, or supplement to
a topical report completed or under review from January 30, 1989,
through August 8, 1991, will not be billed to the applicant. Any
professional hours expended on or after August 9, 1991, will be
assessed at the applicable rate established in Sec. 170.20. The
minimum total review cost is twice the hourly rate shown in Sec.
170.20.
\4\Licensees paying fees under Categories 1A, 1B, and 1E are not subject
to fees under Categories 1C and 1D for sealed sources authorized in
the same license except in those instances in which an application
deals only with the sealed sources authorized by the license.
Applicants for new licenses or renewal of existing licenses that cover
both byproduct material and special nuclear material in sealed sources
for use in gauging devices will pay the appropriate application or
renewal fee for fee Category 1C only.
\5\For a license authorizing shielded radiographic installations or
manufacturing installations at more than one address, a separate fee
will be assessed for inspection of each location, except that if the
multiple installations are inspected during a single visit, a single
inspection fee will be assessed.
\6\Fees will not be assessed for requests/reports submitted to the NRC:
1. In response to a Generic Letter or NRC Bulletin that does not result
in an amendment to the license, does not result in the review of an
alternate method or reanalysis to meet the requirements of the Generic
Letter or does not involve an unreviewed safety issue;
2. In response to an NRC request (at the Associate Office Director level
or above) to resolve an identified safety, safeguards, or
environmental issue, or to assist NRC in developing a rule, regulatory
guide, policy statement, generic letter, or bulletin; or
3. As a means of exchanging information between industry organizations
and the NRC for the purpose of supporting generic regulatory
improvements or efforts.
PART 171--ANNUAL FEES FOR REACTOR OPERATING 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
7. The authority citation for Part 171 continues to read as
follows:
Authority: Sec. 7601, Pub. L. 99-272, 100 Stat. 146, as amended
by Sec. 5601, Pub. L. 100-203, 101 Stat. 1330-275, as amended by
Sec. 3201, Pub. L. 101-239, 103 Stat. 2132 as amended by Sec. 6101,
Pub. L. 101-508, 104 Stat. 1388-298 (42 U.S.C. 2214); Sec. 301, Pub.
L. 92-314, 86 Stat. 267 (42 U.S.C. 2201(w)); Sec. 201, Pub. L. 93-
438, 88 Stat. 1242, as amended (42 U.S.C. 5841); Sec. 2903, Pub. L.
102-486, 106 Stat. 3125 (42 U.S.C. 2214(c)).
8. In Sec. 171.11, paragraph (a)(2) is revised to read as follows:
Sec. 171.11 Exemptions.
(a) * * *
(2) Federally-owned and State-owned research reactors used
primarily for educational training and academic research purposes. For
purposes of this exemption, the term research reactor means a nuclear
reactor that--
(i) Is licensed by the Nuclear Regulatory Commission under section
104c. of the Atomic Energy Act of 1954 (42 U.S.C. 2134(c)) for
operation at a thermal power level of 10 megawatts or less; and
(ii) If so licensed for operation at a thermal power level of more
than 1 megawatt, does not contain--
(A) A circulating loop through the core in which the licensee
conducts fuel experiments;
(B) A liquid fuel loading; or
(C) An experimental facility in the core in excess of 16 square
inches in cross-section.
* * * * *
9. In Sec. 171.15, paragraphs (a), (b)(3), (c)(2), (d), and (e) are
revised to read as follows:
Sec. 171.15 Annual fees: reactor operating licenses.
(a) Each person licensed to operate a power, test, or research
reactor shall pay the annual fee for each unit for which the person
holds an operating license at any time during the Federal FY in which
the fee is due, except for those test and research reactors exempted in
Sec. 171.11 (a)(1) and (a)(2).
(b) * * *
(3) Generic activities required largely for NRC to regulate power
reactors, e.g., updating Part 50 of this chapter, or operating the
Incident Response Center. The base FY 1994 annual fees for each
operating power reactor subject to fees under this section and which
must be collected before September 30, 1994, are shown in paragraph (d)
of this section.
(c) * * *
(2) The FY 1994 surcharge to be added to each operating power
reactor is $273,000. This amount is calculated by dividing the total
cost for these activities ($29.5 million) by the number of operating
power reactors (108).
(d) The FY 1994 Part 171 annual fees for operating power reactors
are as follows:
Part 171 Annual Fees by Reactor Category\1\
[Fees in thousands]
----------------------------------------------------------------------------------------------------------------
Added Estimated
Reactor vendor Number Base fee charge Total fee collections
----------------------------------------------------------------------------------------------------------------
Babcock/Wilcox................................. 7 $2,804 $273 $3,077 $21,539
Combustion Eng................................. 15 2,804 273 3,077 46,155
GE Mark I...................................... 24 2,785 273 3,058 73,392
GE Mark II..................................... 8 2,785 273 3,058 24,464
GE Mark III.................................... 4 2,785 273 3,058 12,232
Westinghouse................................... 50 2,805 273 3,078 153,900
----------------------------------------------------------------
Totals..................................... 108 331,682
----------------------------------------------------------------------------------------------------------------
\1\Fees assessed will vary for plants west of the Rocky Mountains and for Westinghouse plants with ice
condensers.
(e) The annual fees for licensees authorized to operate a nonpower
(test and research) reactor licensed under Part 50 of this chapter,
except for those reactors exempted from fees under Sec. 171.11(a), are
as follows:
Research reactor--$62,200
Test reactor--$62,200
* * * * *
10. In Sec. 171.16, the introductory text of paragraph (c) and
paragraphs (c)(4), (d), and (e) are revised 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 may qualify as a small entity. If a licensee qualifies as a
small entity and provides the Commission with the proper certification,
the licensee may pay reduced annual fees for FY 1994 as follows:
------------------------------------------------------------------------
Maximum
annual fee
per
licensed
category
------------------------------------------------------------------------
Small businesses and small not-for-profit organizations
(gross annual receipts):
$250,000 to $3.5 million................................. $1,800
Less than $250,000....................................... 400
Private practice physicians (gross annual receipts):
$250,000 to $1.0 million................................. 1,800
Less than $250,000....................................... 400
Small governmental jurisdictions (Including publicly
supported educational institutions) (population):
20,000 to 50,000......................................... 1,800
Less than 20,000......................................... 400
Educational institutions that are not state or publicly
supported, and have 500 employees or less............... 1,800
------------------------------------------------------------------------
* * * * *
(4) For FY 1994, the maximum annual fee (base annual fee plus
surcharge) a small entity is required to pay is $1,800 for each
category applicable to the license(s).
(d) The FY 1994 annual fees for materials licensees and holders of
certificates, registrations or approvals subject to fees under this
section are as follows:
Schedule of Materials Annual Fees and Fees for Government Agencies
Licensed by NRC
[See footnotes at end of table]
Annual
Category of materials licenses fees1,2,3
1. Special nuclear material:
A.(1) Licenses for possession and use of U-235 or
plutonium for fuel fabrication activities.
License No. Docket No.
High Enriched Fuel:
Babcock and Wilcox................................. SNM-42 70-27 $3,176,000
Nuclear Fuel Services.............................. SNM-124 70-143 3,176,000
Low Enriched Fuel:
B&W Fuel Company................................... SNM-1168 70-1201 1,429,000
Combustion Engineering (Hematite).................. SNM-33 70-36 1,429,000
General Electric Company........................... SNM-1097 70-1113 1,429,000
Siemens Nuclear Power.............................. SNM-1227 70-1257 1,429,000
Westinghouse Electric Company...................... SNM-1107 70-1151 1,429,000
General Atomics.................................... SNM-696 70-734 1,429,000
Surcharge.......................................... 55,770
A.(2) All other special nuclear materials licenses not
included in 1.A.(1) above for possession and use of
200 grams or more of plutonium in unsealed form or 350
grams or more of contained U-235 in unsealed form or
200 grams or more of U-233 in unsealed form........... 254,000
Surcharge.......................................... 55,770
B. Licenses for receipt and storage of spent fuel at an
independent spent fuel storage installation (ISFSI)... 363,500
Surcharge.......................................... 1,670
C. Licenses for possession and use of special nuclear
material in sealed sources contained in devices used
in industrial measuring systems, including x-ray
fluorescence analyzers................................ 1,800
Surcharge......................................... 170
D. All other special nuclear material licenses, except
licenses authorizing special nuclear material in
unsealed form in combination that would constitute a
critical quantity, as defined in Sec. 150.11 of this
chapter, for which the licensee shall pay the same
fees as those for Category 1.A.(2).................... 2,200
Surcharge.......................................... 1,670
E. Licenses for the operation of a uranium enrichment
facility.............................................. \11\ N/A
2. Source material:
A.(1) Licenses for possession and use of source
material for refining uranium mill concentrates to
uranium hexafluoride.................................. 1,114,000
Surcharge.......................................... 55,770
(2) Licenses for possession and use of source material
in recovery operations such as milling, in-situ
leaching, heap-leaching, ore buying stations, ion
exchange facilities and in processing of ores
containing source material for extraction of metals
other than uranium or thorium, including licenses
authorizing the possession of byproduct waste material
(tailings) from source material recovery operations,
as well as licenses authorizing the possession and
maintenance of a facility in a standby mode...........
Class I facilities\4\.............................. 74,500
Class II facilities\4\............................. 41,200
Other facilities................................... 36,200
Surcharge...................................... 170
(3) Licenses that authorize the receipt, from other
persons, of byproduct material as defined in Section
11e.(2) of the Atomic Energy Act for possession and
disposal, except those licenses subject to the fees in
Category 2.A.(2) or Category 2.A.(4).................. 67,000
Surcharge.......................................... 170
(4) Licenses that authorize the receipt, from other
persons, of byproduct material as defined in Section
11e.(2) of the Atomic Energy Act for possession and
disposal incidental to the disposal of the uranium
waste tailings generated by the licensee's milling
operations, except those licenses subject to the fees
in Category 2.A.(2)................................... 8,700
Surcharge.......................................... 170
B. Licenses which authorize only the possession, use
and/or installation of source material for shielding.. 800
Surcharge.......................................... 170
C. All other source material licenses.................. 8,700
Surcharge.......................................... 1,670
3. Byproduct material:
A. Licenses of broad scope for possession and use of
byproduct material issued pursuant to Parts 30 and 33
of this chapter for processing or manufacturing of
items containing byproduct material for commercial
distribution.......................................... 19,700
Surcharge.......................................... 1,670
B. Other licenses for possession and use of byproduct
material issued pursuant to Part 30 of this chapter
for processing or manufacturing of items containing
byproduct material for commercial distribution........ 6,000
Surcharge.......................................... 1,670
C. Licenses issued pursuant to Secs. 32.72, 32.73, and/
or 32.74 of this chapter authorizing the processing or
manufacturing and distribution or redistribution of
radiopharmaceuticals, generators, reagent kits and/or
sources and devices containing byproduct material.
This category also includes the possession and use of
source material for shielding authorized pursuant to
Part 40 of this chapter when included on the same
license............................................... 12,000
Surcharge.......................................... 1,670
D. Licenses and approvals issued pursuant to Secs.
32.72, 32.73, and/or 32.74 of this chapter authorizing
distribution or redistribution of radiophar-
maceuticals, generators, reagent kits and/or sources
or devices not involving processing of byproduct
material. This category also includes the possession
and use of source material for shielding authorized
pursuant to Part 40 of this chapter when included on
the same license...................................... 6,000
Surcharge.......................................... 170
E. Licenses for possession and use of byproduct
material in sealed sources for irradiation of
materials in which the source is not removed from its
shield (self-shielded units).......................... 3,500
Surcharge.......................................... 170
F. Licenses for possession and use of less than 10,000
curies of byproduct material in sealed sources for
irradiation of materials in which the source is
exposed for irradiation purposes. This category also
includes underwater irradiators for irradiation of
materials in which the source is not exposed for
irradiation purposes.................................. 4,500
Surcharge.......................................... 170
G. Licenses for possession and use of 10,000 curies or
more of byproduct material in sealed sources for
irradiation of materials in which the source is
exposed for irradiation purposes. This category also
includes underwater irradiators for irradiation of
materials in which the source is not exposed for
irradiation purposes.................................. 24,400
Surcharge.......................................... 170
H. Licenses issued pursuant to Subpart A of Part 32 of
this chapter to distribute items containing byproduct
material that require device review to persons exempt
from the licensing requirements of Part 30 of this
chapter, except specific licenses authorizing
redistribution of items that have been authorized for
distribution to persons exempt from the licensing
requirements of Part 30 of this chapter............... 6,800
Surcharge.......................................... 170
I. Licenses issued pursuant to Subpart A of Part 32 of
this chapter to distribute items containing byproduct
material or quantities of byproduct material that do
not require device evaluation to persons exempt from
the licensing requirements of Part 30 of this chapter,
except for specific licenses authorizing
redistribution of items that have been authorized for
distribution to persons exempt from the licensing
requirements of Part 30 of this chapter............... 12,500
Surcharge.......................................... 170
J. Licenses issued pursuant to Subpart B of Part 32 of
this chapter to distribute items containing byproduct
material that require sealed source and/or device
review to persons generally licensed under Part 31 of
this chapter, except specific licenses authorizing
redistribution of items that have been authorized for
distribution to persons generally licensed under Part
31 of this chapter.................................... 6,600
Surcharge.......................................... 170
K. Licenses issued pursuant to Subpart B of Part 31 of
this chapter to distribute items containing byproduct
material or quantities of byproduct material that do
not require sealed source and/or device review to
persons generally licensed under Part 31 of this
chapter, except specific licenses authorizing
redistribution of items that have been authorized for
distribution to persons generally licensed under Part
31 of this chapter.................................... 6,100
Surcharge.......................................... 170
L. Licenses of broad scope for possession and use of
byproduct material issued pursuant to Part 30 and 33
of this chapter for research and development that do
not authorize commercial distribution................. 14,700
Surcharge.......................................... 1,670
M. Other licenses for possession and use of byproduct
material issued pursuant to Part 30 of this chapter
for research and development that do not authorize
commercial distribution............................... 5,100
Surcharge.......................................... 1,670
N. Licenses that authorize services for other
licensees, except (1) licenses that authorize only
calibration and/or leak testing services are subject
to the fees specified in fee Category 3P, and (2)
licenses that authorize waste disposal services are
subject to the fees specified in fee Categories 4A,
4B, 4C, and 4D........................................ 6,000
Surcharge.......................................... 1,670
O. Licenses for possession and use of byproduct
material issued pursuant to Part 34 of this chapter
for industrial radiography operations. This category
also includes the possession and use of source
material for shielding authorized pursuant to Part 40
of this chapter when authorized on the same license... 19,000
Surcharge.......................................... 170
P. All other specific byproduct material licenses,
except those in Categories 4A through 9D.............. 2,300
Surcharge.......................................... 170
4. Waste disposal and processing:
A. Licenses specifically authorizing the receipt of
waste byproduct material, source material, or special
nuclear material from other persons for the purpose of
contingency storage or commercial land disposal by the
licensee; or licenses authorizing contingency storage
of low-level radioactive waste at the site of nuclear
power reactors; or licenses for receipt of waste from
other persons for incineration or other treatment,
packaging of resulting waste and residues, and
transfer of packages to another person authorized to
receive or dispose of waste material.................. \5\130,200
Surcharge.......................................... 1,670
B. Licenses specifically authorizing the receipt of
waste byproduct material, source material, or special
nuclear material from other persons for the purpose of
packaging or repackaging the material. The licensee
will dispose of the material by transfer to another
person authorized to receive or dispose of the
material.............................................. 16,400
Surcharge.......................................... 1,670
C. Licenses specifically authorizing the receipt of
prepackaged waste byproduct material, source material,
or special nuclear material from other persons. The
licensee will dispose of the material by transfer to
another person authorized to receive or dispose of the
material.............................................. 7,500
Surcharge.......................................... 1,670
5. Well logging:
A. Licenses for possession and use of byproduct
material, source material, and/or special nuclear
material for well logging, well surveys, and tracer
studies other than field flooding tracer studies...... 12,700
Surcharge.......................................... 170
B. Licenses for possession and use of byproduct
material for field flooding tracer studies............ 15,400
Surcharge.......................................... 1,670
6. Nuclear laundries:
A. Licenses for commercial collection and laundry of
items contaminated with byproduct material, source
material, or special nuclear material................. 15,600
Surcharge.......................................... 1,670
7. Human use of byproduct, source, or special nuclear
material:
A. Licenses issued pursuant to Parts 30, 35, 40, and 70
of this chapter for human use of byproduct material,
source material, or special nuclear material in sealed
sources contained in teletherapy devices. This
category also includes the possession and use of
source material for shielding when authorized on the
same license.......................................... 16,900
Surcharge.......................................... 170
B. Licenses of broad scope issued to medical
institutions or two or more physicians pursuant to
Parts 30, 33, 35, 40, and 70 of this chapter
authorizing research and development, including human
use of byproduct material except licenses for
byproduct material, source material, or special
nuclear material in sealed sources contained in
teletherapy devices. This category also includes the
possession and use of source material for shielding
when authorized on the same license\9\................ 30,900
Surcharge.......................................... 1,670
C. Other licenses issued pursuant to Parts 30, 35, 40,
and 70 of this chapter for human use of byproduct
material, source material, and/or special nuclear
material except licenses for byproduct material,
source material, or special nuclear material in sealed
sources contained in teletherapy devices. This
category also includes the possession and use of
source material for shielding when authorized on the
same license\9\....................................... 5,900
Surcharge.......................................... 170
8. Civil defense:
A. Licenses for possession and use of byproduct
material, source material, or special nuclear material
for civil defense activities.......................... 2,100
Surcharge.......................................... 170
9. Device, product, or sealed source safety evaluation:
A. Registrations issued for the safety evaluation of
devices or products containing byproduct material,
source material, or special nuclear material, except
reactor fuel devices, for commercial distribution..... 9,600
Surcharge.......................................... 170
B. Registrations issued for the safety evaluation of
devices or products containing byproduct material,
source material, or special nuclear material
manufactured in accordance with the unique
specifications of, and for use by, a single applicant,
except reactor fuel devices........................... 4,900
Surcharge.......................................... 170
C. Registrations issued for the safety evaluation of
sealed sources containing byproduct material, source
material, or special nuclear material, except reactor
fuel, for commercial distribution..................... 2,100
Surcharge.......................................... 170
D. Registrations issued for the safety evaluation of
sealed sources containing byproduct material, source
material, or special nuclear material, manufactured in
accordance with the unique specifications of, and for
use by, a single applicant, except reactor fuel....... 1,000
Surcharge.......................................... 170
10. Transportation of radioactive material:
A. Certificates of Compliance or other package
approvals issued for design of casks, packages, and
shipping containers...................................
Spent Fuel, High-Level Waste, and plutonium air
packages.......................................... \6\N/A
Other Casks........................................ \6\N/A
B. Approvals issued of 10 CFR Part 71 quality assurance
programs..............................................
Users and Fabricators.............................. 64,700
Users.............................................. 900
Surcharge...................................... 170
11. Standardized spent fuel facilities..................... \6\N/A
12. Special Projects....................................... \6\N/A
13. A. Spent fuel storage cask Certificate of Compliance... \6\N/A
B. General licenses for storage of spent fuel under 10
CFR 72.210............................................ 363,500
Surcharge.......................................... 170
14. Byproduct, source, or special nuclear material licenses
and other approvals authorizing decommissioning,
decontamination, reclamation, or site restoration
activities pursuant to 10 CFR Parts 30, 40, 70, and 72.... \7\N/A
15. Import and Export licenses............................. \8\N/A
16. Reciprocity............................................ \8\N/A
17. Master materials licenses of broad scope issued to
Government agencies....................................... 430,500
Surcharge.......................................... 22,970
18. Department of Energy:
a. Certificates of Compliance.......................... \10\923,000
b. Uranium Mill Tailing Radiation Control Act (UMTRCA)
activities............................................ 1,449,000
Surcharge.......................................... 170
\1\Annual fees will be assessed based on whether a licensee held, during
the fiscal year, a valid license with the NRC authorizing possession
and use of radioactive material. However, the annual fee is waived for
those materials licensees and holders of certificates, registrations,
and approvals who either filed for termination of their licenses or
approvals or filed for possession only/storage licenses prior to
October 1, 1993 and permanently ceased licensed activities entirely by
September 30, 1993. Annual fees for licensees who filed for
termination of a license or for a POL during the fiscal year and for
new licenses issued during the fiscal year will be prorated in
accordance with the provisions of Sec. 171.17. If a person holds more
than one license, certificate, registration, or approval, the annual
fee(s) will be assessed for each license, certificate, registration,
or approval held by that person. For licenses that authorize more than
one activity on a single license (e.g., human use and irradiator
activities), annual fees will be assessed for each category applicable
to the license. Licensees paying annual fees under Category 1.A.(1).
are not subject to the annual fees of category 1.C and 1.D for sealed
sources authorized in the license and licensees paying annual fees
under Category 2.A.(2) are not subject to the annual fees for Category
2.A.(4).
\2\Payment of the prescribed annual fee does not automatically renew the
license, certificate, registration, or approval for which the fee is
paid. Renewal applications must be filed in accordance with the
requirements of Parts 30, 40, 70, 71, or 72 of this chapter.
\3\For FYs 1995 through 1998, fees for these materials licenses will be
calculated and assessed in accordance with Sec. 171.13 and will be
published in the Federal Register for notice and comment.
\4\A Class I license includes mill licenses issued for the extraction of
uranium from uranium ore. A Class II license includes solution mining
licenses (in-situ and heap leach) issued for the extraction of uranium
from uranium ores including research and development licenses. An
``other'' license includes licenses for extraction of metals, heavy
metals, and rare earths.
\5\Two licenses have been issued by NRC for land disposal of special
nuclear material. Once NRC issues a LLW disposal license for byproduct
and source material, the Commission will consider establishing an
annual fee for this type of license.
\6\Standardized spent fuel facilities, Part 71 and 72 Certificates of
Compliance, and special reviews, such as topical reports, are not
assessed an annual fee because the generic costs of regulating these
activities are primarily attributable to the users of the designs,
certificates, and topical reports.
\7\Licensees in this category are not assessed an annual fee because
they are charged an annual fee in other categories while they are
licensed to operate.
\8\No annual fee is charged because it is not practical to administer
due to the relatively short life or temporary nature of the license.
\9\ Separate annual fees will not be assessed for pacemaker licenses
issued to medical institutions who also hold nuclear medicine licenses
under Categories 7B or 7C.
\10\This includes Certificates of Compliance issued to DOE that are not
under the Nuclear Waste Fund.
\11\No annual fee has been established because there are currently no
licensees in this particular fee category.
(e) A surcharge is added for each category for which a base annual
fee is required. The surcharge consists of the following:
(1) To recover costs relating to LLW disposal generic activities,
an additional charge of $55,600 has been added to fee Categories
1.A.(1), 1.A.(2) and 2.A.(1); an additional charge of $1,500 has been
added to fee Categories 1.B., 1.D., 2.C., 3.A., 3.B., 3.C., 3.L., 3.M.,
3.N., 4.A., 4.B., 4.C., 5.B., 6.A., and 7.B.; and an additional charge
of $22,800 has been added to fee Category 17.
(2) To recoup those costs not recovered from small entities, an
additional charge of $170 has been added to each fee Category, except
Categories 1.E, 10.A., 11., 12., 13.A., 14., 15., and 16., since there
is no annual fee for these categories. Licensees who qualify as small
entities under the provisions of Sec. 171.16(c) and who submit a
completed NRC Form 526 are not subject to the $170 additional charge.
11. Section 171.17 is revised to read as follows:
Sec. 171.17 Proration.
Annual fees will be prorated for NRC licensees as follows:
(a) Reactors. The annual fee for reactors (power or nonpower) that
are subject to fees under this part and are granted a license to
operate on or after October 1 of a FY is prorated on the basis of the
number of days remaining in the FY. Thereafter, the full fee is due and
payable each subsequent FY. Licensees who have requested amendment to
withdraw operating authority permanently during the FY will be prorated
based on the number of days during the FY the license was in effect
before the possession only license was issued or the license was
terminated.
(b) Materials licenses (including fuel cycle licenses). The annual
fee for a materials license that is subject to fees under this part and
issued on or after October 1 of the FY is prorated on the basis of when
the NRC issues the new license. New licenses issued during the period
October 1 through March 31 of the FY will be assessed one-half the
annual fee for that FY. New licenses issued on or after April 1 of the
FY will not be assessed an annual fee for that FY. Thereafter, the full
fee is due and payable each subsequent FY. The annual fee will be
prorated for licenses for which a termination request or a request for
a POL has been received on or after October 1 of a FY on the basis of
when the application for termination or POL is received by the NRC
provided the licensee permanently ceased licensed activities during the
specified period. Licenses for which applications for termination or
POL are filed during the period October 1 through March 31 of the FY
are assessed one-half the annual fee for the applicable category(ies)
for that FY. Licenses for which applications for termination or POL are
filed on or after April 1 of the FY are assessed the full annual fee
for that FY.
12. In section 171.19, paragraphs (b) and (c) are revised to read
as follows:
Sec. 171.19 Payment.
* * * * *
(b) For FY 1994 through FY 1998, the Commission will adjust the
fourth quarterly bill for operating power reactors and certain
materials licensees to recover the full amount of the revised annual
fee. If the amounts collected in the first three quarters exceed the
amount of the revised annual fee, the overpayment will be refunded. All
other licensees, or holders of a certificate, registration, or approval
of a QA program will be sent a bill for the full amount of the annual
fee upon publication of the final rule. Payment is due on the effective
date of the final rule and interest accrues from the effective date of
the final rule. However, interest will be waived if payment is received
within 30 days from the effective date of the final rule.
(c) For FYs 1994 through 1998, annual fees in the amount of
$100,000 or more and described in the Federal Register notice pursuant
to Sec. 171.13, must be paid in quarterly installments of 25 percent as
billed by the NRC. The quarters begin on October 1, January 1, April 1,
and July 1 of each fiscal year. Annual fees of less than $100,000 must
be paid once a year as billed by the NRC.
Dated at Rockville, Maryland, this 12th day of July, 1994.
For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
Appendix A to This Final Rule--Regulatory Flexibility Analysis for
the Amendments to 10 CFR Part 170 (License Fees) and 10 CFR Part
171 (Annual Fees)
I. Background.
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
establishes as a principle of regulatory practice that agencies
endeavor to fit regulatory and informational requirements, consistent
with applicable statutes, to a scale commensurate with the businesses,
organizations, and government jurisdictions to which they apply. To
achieve this principle, the Act requires that agencies consider the
impact of their actions on small entities. If the agency cannot certify
that a rule will not significantly impact a substantial number of small
entities, then a regulatory flexibility analysis is required to examine
the impacts on small entities and the alternatives to minimize these
impacts.
To assist in considering these impacts under the Regulatory
Flexibility Act, the NRC adopted size standards for determining which
NRC licensees qualify as small entities (50 FR 50241; December 9,
1985). These size standards were clarified November 6, 1991 (56 FR
56672). The NRC size standards are as follows:
(1) A small business is a business with annual receipts of $3.5
million or less except private practice physicians for which the
standard is annual receipts of $1 million or less.
(2) A small organization is a not-for-profit organization which is
independently owned and operated and has annual receipts of $3.5
million or less.
(3) Small governmental jurisdictions are governments of cities,
counties, towns, townships, villages, school districts, or special
districts with a population of less than 50,000.
(4) A small educational institution is one that is (i) supported by
a qualifying small governmental jurisdiction, or (ii) one that is not
state or publicly supported and has 500 employees or less.
Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990
(OBRA-90), requires that the NRC recover approximately 100 percent of
its budget authority, less appropriations from the Nuclear Waste Fund,
for Fiscal Years (FY) 1991 through 1995 by assessing license and annual
fees. OBRA-90 was amended in 1993 to extend the 100 percent recovery
requirement for NRC through 1998. For FY 1991, the amount collected was
approximately $445 million; for FY 1992, approximately $492.5 million;
for FY 1993 about $518.9 million and the amount to be collected in FY
1994 is approximately $513 million.
To comply with OBRA-90, the Commission amended its fee regulations
in 10 CFR Parts 170 and 171 in FY 1991 (56 FR 31472; July 10, 1991) in
FY 1992, (57 FR 32691; July 23, 1992) and in FY 1993 (58 FR 38666; July
20, 1993) based on a careful evaluation of over 1,000 comments. These
final rules established the methodology used by NRC in identifying and
determining the fees assessed and collected in FY 1991, FY 1992, and FY
1993. The NRC has used the same methodology established in the FY 1991,
FY 1992, and FY 1993 rulemakings to establish the fees to be assessed
for FY 1994 with the following exceptions: (1) the Commission has
reinstated the annual fee exemption for nonprofit educational
institutions; and (2) in this final rule, the NRC has directly assigned
additional effort to the reactor and materials programs for the Office
of Investigations, the Office of Enforcement, the Advisory Committee on
Reactor Safeguards, and the Advisory Committee on Nuclear Waste. The
methodology for assessing low-level waste (LLW) costs was changed in FY
1993 based on the U.S. Court of Appeals decision dated March 16, 1993
(988 F.2d 146, (D.C. Cir. 1993)). The FY 1993 LLW allocation method has
been continued in the FY 1994 final rule.
II. Impact on small entities.
The comments received on the proposed FY 1991, FY 1992, FY 1993 and
FY 1994 fee rule revisions and the small entity certifications received
in response to the final FY 1991, FY 1992, and FY 1993 fee rules
indicate that NRC licensees qualifying as small entities under the
NRC's size standards are primarily those licensed under the NRC's
materials program. Therefore, this analysis will focus on the economic
impact of the annual fees on materials licensees.
The Commission's fee regulations result in substantial fees being
charged to those individuals, organizations, and companies that are
licensed under the NRC materials program. Of these materials licensees,
the NRC estimates that about 18 percent (approximately 1,300 licensees)
qualify as small entities. This estimate is based on the number of
small entity certifications filed in response to the FY 1991, FY 1992,
and FY 1993 fee rules. In FY 1993, the NRC conducted a survey of its
materials licensees. The results of this survey indicated that about 25
percent of these licensees could qualify as small entities under the
current NRC size standards.
The commenters on the FY 1991, FY 1992, FY 1993, and FY 1994
proposed fee rules indicated the following results if the proposed
annual fees were not modified:
--Large firms would gain an unfair competitive advantage over small
entities. One commenter noted that a small well-logging company (a
``Mom and Pop'' type of operation) would find it difficult to absorb
the annual fee, while a large corporation would find it easier. Another
commenter noted that the fee increase could be more easily absorbed by
a high-volume nuclear medicine clinic. A gauge licensee noted that, in
the very competitive soils testing market, the annual fees would put it
at an extreme disadvantage with its much larger competitors because the
proposed fees would be the same for a two-person licensee as for a
large firm with thousands of employees.
--Some firms would be forced to cancel their licenses. One commenter,
with receipts of less than $500,000 per year, stated that the proposed
rule would, in effect, force it to relinquish its soil density gauge
and license, thereby reducing its ability to do its work effectively.
Another commenter noted that the rule would force the company and many
other small businesses to get rid of the materials license altogether.
Commenters stated that the proposed rule would result in about 10
percent of the well-logging licensees terminating their licenses
immediately and approximately 25 percent terminating their licenses
before the next annual assessment.
--Some companies would go out of business. One commenter noted that the
proposal would put it, and several other small companies, out of
business or, at the very least, make it hard to survive.
--Some companies would have budget problems. Many medical licensees
commented that, in these times of slashed reimbursements, the proposed
increase of the existing fees and the introduction of additional fees
would significantly affect their budgets. Another noted that, in view
of the cuts by Medicare and other third party carriers, the fees would
produce a hardship and some facilities would experience a great deal of
difficulty in meeting this additional burden.
Over the past three years, approximately 2,600 license, approval,
and registration terminations have been requested. Although some of
these terminations were requested because the license was no longer
needed or licenses or registrations could be combined, indications are
that other termination requests were due to the economic impact of the
fees.
The NRC continues to receive written and oral comments from small
materials licensees. These comments indicate that the $3.5 million
threshold for small entities is not representative of small businesses
with gross receipts in the thousands of dollars. These commenters
believe that the $1,800 maximum annual fee represents a relatively high
percentage of gross annual receipts for these ``Mom and Pop'' type
businesses. Therefore, even the reduced annual fee could have a
significant impact on the ability of these types of businesses to
continue to operate.
To alleviate the continuing significant impact of the annual fees
on a substantial number of small entities, the NRC considered
alternatives, in accordance with the RFA. These alternatives were
evaluated in the FY 1991 rule (56 FR 31472; July 10, 1991), in the FY
1992 rule (57 FR 32691; July 23, 1992), and in the FY 1993 rule (58 FR
38666; July 20, 1993). The alternatives considered by the NRC can be
summarized as follows.
--Base fees on some measure of the amount of radioactivity possessed by
the licensee (e.g., number of sources).
--Base fees on the frequency of use of the licensed radioactive
material (e.g., volume of patients).
--Base fees on the NRC size standards for small entities.
The NRC has reexamined the FY 1991, FY 1992, and FY 1993 evaluation
of these alternatives. Based on that reexamination, the NRC continues
to support the previous conclusion. That is, the NRC continues to
believe that establishment of a maximum fee for small entities is the
most appropriate option to reduce the impact on small entities.
The NRC established, and is continuing for FY 1994, a maximum
annual fee for small entities. The RFA and its implementing guidance do
not provide specific guidelines on what constitutes a significant
economic impact on a small entity. Therefore, the NRC has no benchmark
to assist it in determining the amount or the percent of gross receipts
that should be charged to a small entity. For FY 1994, the NRC will
rely on the analysis previously completed that established a maximum
annual fee for a small entity by comparing NRC license and inspection
fees under 10 CFR Part 170 with Agreement State fees for those fee
categories that are expected to contain a substantial number of small
entities. Because these fees have been charged to small entities, the
NRC continues to believe that these fees, or any adjustments to these
fees during the past year, do not have a significant impact on them. In
issuing this final rule for FY 1994, the NRC concludes that the
materials license and inspection fees do not have a significant impact
on a substantial number of small entities and that the maximum annual
small entity fee of $1,800 be maintained to alleviate the impact of the
fees on small entities.
By maintaining the maximum annual fee for small entities at $1,800,
the annual fee for many small entities will be reduced while at the
same time materials licensees, including small entities, pay for most
of the FY 1994 costs ($33.3 million of the total $38.6 million)
attributable to them. Therefore, the NRC is continuing, for FY 1994,
the maximum annual fee (base annual fee plus surcharge) for certain
small entities at $1,800 for each fee category covered by each license
issued to a small entity. Note that the costs not recovered from small
entities are allocated to other materials licensees and to operating
power reactors.
While reducing the impact on many small entities, the Commission
agrees that the current maximum annual fee of $1,800 for small
entities, when added to the Part 170 license and inspection fees, may
continue to have a significant impact on materials licensees with
annual gross receipts in the thousands of dollars. Therefore, as in FY
1992 and FY 1993, the NRC will continue the lower-tier small entity
annual fee of $400 for small entities with relatively low gross annual
receipts for FY 1994. This lower-tier small entity fee was established
in the final rule published in the Federal Register on April 17, 1992
(57 FR 13625).
In establishing the annual fee for lower tier small entities, the
NRC continues to retain a balance between the objectives of the RFA and
OBRA-90. This balance can be measured by (1) the amount of costs
attributable to small entities that is transferred to larger entities
(the small entity subsidy); (2) the total annual fee small entities
pay, relative to this subsidy; and (3) how much the annual fee is for a
lower tier small entity. Nuclear gauge users were used to measure the
reduction in fees because they represent about 40 percent of the
materials licensees and most likely would include a larger percentage
of lower tier small entities than would other classes of materials
licensees. The Commission is continuing an annual fee of $400 for the
lower tier small entities to ensure that the lower tier small entities
receive a reduction (75 percent for small gauge users) substantial
enough to mitigate any severe impact. Although other reduced fees would
result in lower subsidies, the Commission believes that the amount of
the associated annual fees, when added to the license and inspection
fees, would still be considerable for small businesses and
organizations with gross receipts of less than $250,000 or for
governmental entities in jurisdictions with a population of less than
20,000.
III. Summary
The NRC has determined the annual fee significantly impacts a
substantial number of small entities. A maximum fee for small entities
strikes a balance between the requirement to collect 100 percent of the
NRC budget and the requirement to consider means of reducing the impact
of the proposed fee on small entities. On the basis of its regulatory
flexibility analyses, the NRC concludes that a maximum annual fee of
$1,800 for small entities and a lower tier small entity annual fee of
$400 for small businesses and non-profit organizations with gross
annual receipts of less than $250,000, and small governmental entities
with a population of less than 20,000, will reduce the impact on small
entities. At the same time, these reduced annual fees are consistent
with the objectives of OBRA-90. Thus, the revised fees for small
entities maintain a balance between the objectives of OBRA-90 and the
RFA. The NRC has used the methodology and procedures developed for the
FY 1991, the FY 1992, and the FY 1993 fee rules in this final rule
establishing the FY 1994 fees. Therefore, the analysis and conclusions
established in the FY 1991, the FY 1992, and the FY 1993 rules remain
valid for this final rule for FY 1994.
[FR Doc. 94-17502 Filed 7-19-94; 8:45 am]
BILLING CODE 7590-01-P
