[Federal Register Volume 63, Number 111 (Wednesday, June 10, 1998)]
[Rules and Regulations]
[Pages 31840-31864]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15140]
[[Page 31839]]
_______________________________________________________________________
Part II
Nuclear Regulatory Commission
_______________________________________________________________________
10 CFR Parts 2, 140, 170, and 171
Fee Schedules Revision: 100 Percent Fee Recovery (FY 1998); Final Rule
Federal Register / Vol. 63, No. 111 / Wednesday, June 10, 1998 /
Rules and Regulations
[[Page 31840]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2, 140, 170, and 171
RIN 3150-AF 83
Revision of Fee Schedules; 100 Percent Fee Recovery, FY 1998
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 the Omnibus Budget
Reconciliation Act of 1990 (OBRA-90), which mandates that the NRC
recover approximately 100 percent of its budget authority in Fiscal
Year (FY) 1998, less amounts appropriated from the Nuclear Waste Fund
(NWF). The amount to be recovered for FY 1998 is approximately $454.8
million. The NRC is also providing additional payment methods for civil
penalties and indemnity fees, as well as annual and licensing fees.
EFFECTIVE DATE: August 10, 1998.
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, 2120 L Street NW (Lower Level),
Washington, DC 20555-0001.
FOR FURTHER INFORMATION CONTACT: Glenda Jackson, Office of the Chief
Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001, Telephone 301-415-6057.
SUPPLEMENTARY INFORMATION:
I. Background.
II. Responses to Comments.
III. Final Action.
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.
X. Small Business Regulatory Enforcement Fairness Act.
I. Background
Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990
(OBRA-90), enacted November 5, 1990, required 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 FY 1998.
The NRC assesses two types of fees to recover its budget authority.
First, license and inspection fees, established at 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. Examples of the services provided by the NRC for which these
fees are assessed are the review of applications for the issuance of
new licenses, approvals or renewals, and amendments to licenses or
approvals. 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.
On April 1, 1998 (63 FR 16046), the NRC published a proposed rule
to establish the licensing, inspection, and annual fees necessary for
the NRC to recover approximately 100 percent of its budget authority
for FY 1998, less the appropriation received from the Nuclear Waste
Fund and the General Fund, and to provide additional payment methods
for civil penalties and indemnity fees. These changes were highlighted
in the proposed rule (63 FR 16046; April 1, 1998) and have been adopted
in this final rule for FY 1998. The major changes are summarized as
follows:
1. Adjust all 10 CFR 171 annual fees by the percent change in the
NRC budget authority since its FY 1997 appropriation. In this final
rule, FY 1998 annual fees have been adjusted downward by about 0.1
percent. This change is consistent with the NRC's intention stated in
the FY 1995 final rule. The NRC indicated that, beginning in FY 1996,
annual fees would be stabilized by adjusting the prior year annual fees
by the percent change (plus or minus) in the NRC budget authority
taking into consideration the estimated collections from 10 CFR Part
170 fees and the number of licensees paying fees;
2. Revise, by lowering, the two professional hourly rates in
Sec. 170.20 that are used to determine the 10 CFR Part 170 fees
assessed by the NRC. The rate for FY 1998 for the reactor program is
$124 per hour and the rate for the materials program is $121 per hour.
3. Adjust downward the current licensing and inspection fees in
Secs. 170.21 and 170.31 for applicants and licensees to reflect the
changes in the revised hourly rates.
4. Revise Sec. 170.12(g) to include full cost recovery for resident
inspectors and to recover costs incurred up to approximately 30 days
after issuance of an inspection report.
5. Implement a procedural change to assess fees under Secs. 170.21
and 170.31 for activities, such as application reviews and inspections,
performed during compensated overtime. The compensated overtime hours
will be billed at the normal hourly rate.
II. Responses to Comments
The NRC received and evaluated four comments on its proposed rule.
For evaluation purposes, comments similar in nature have been
grouped, as appropriate, and addressed as single issues in this final
rule.
The comments are as follows.
A. Relationship Between Costs and Annual Fees
1. Comment. Two commenters, the Nuclear Energy Institute (NEI) and
Florida Power and Light Company (FPL), indicated that the basis for the
increase in the annual fees was not explained in the proposed rule.
These commenters indicated that NRC has not followed the Congressional
directive in the Conference Report on the Omnibus Budget Reconciliation
Act of 1990 (OBRA-90) that the annual charges, ``to the maximum extent
practicable, reasonably reflects the cost of providing services to such
licensees or classes of licensees.'' NEI stated that the general
descriptions of the activities comprising the basis for the annual fee
do not provide sufficient information to enable the public to comment
meaningfully on this aspect of the proposed rule, and went on to argue
that the NRC's obligation to examine its activities and their
associated costs annually pursuant to OBRA-90 cannot be satisfied by
merely adjusting the FY 1995 baseline determinations. Both of these
commenters indicated that the NRC should not proceed with the rule as
proposed and should provide a clear explanation of the relationship
between services provided and the proposed annual fee. FPL stated that
the description and level of justification should be no less than that
employed prior to 1995. NEI also stated that the NRC did not provide
any information to enable an evaluation of the basis for the judgment
that neither of the two tests for reexamining the basis for the annual
fees (e.g., a substantial change in the NRC's budget or in the
magnitude of a specific budget allocation to a class of licensees) had
been met.
Response. The NRC believes that it has provided sufficient
information to allow public evaluation and comment on the proposed
fees. The proposed fee rule contained specific explanations for
[[Page 31841]]
the changes to the annual fees, including tables showing the
calculation of the percentage change to the annual fees. In addition,
as stated in the proposed rule, the workpapers supporting the proposed
fee rule changes are available for public examination in the NRC Public
Document Room at 2120 L Street, NW (Lower Level), Washington, DC 20555.
Moreover, a detailed explanation of NRC's budget is set forth in NUREG-
1100, Volume 13, Budget Estimates Fiscal Year 1998 published in
February 1997 and is available to commenters. Finally, NRC staff during
the comment period responded to telephone requests for additional
explanation of the proposed rule.
Contrary to the commenters' inference, OBRA-90 does not require NRC
to rebaseline annual fees every year. The statute states that ``[t]o
the maximum extent practicable, the charges shall have a reasonable
relationship to the cost of providing regulatory services and may be
based on the allocation of the Commission's resources among licensees
or classes of licensees.'' The Conference Report on the statute makes
clear that the Congress recognized that the allocation of fees would
diverge from the allocation of resources in the budget. The conferees
further ``recognize[d] that there are expenses that cannot be
attributed either to an individual licensee or a class of licensees.''
(House Conference Report 101-954, p. 962.) This language affords the
Commission some flexibility in shaping its annual fee schedules.
In promulgating the FY 1995 fee rule, the NRC solicited comments on
a proposal to establish the annual fees for FY 1996 through FY 1998,
and FY 1999 if OBRA-90 is extended, based on the percentage decrease or
increase in the NRC's total budget, unless there was a substantial
change in that total budget or in the magnitude of a specific budget
allocation to a class of licensees. The NRC indicated that the annual
fees would also be adjusted to compensate for changes in Part 170 fee
collections and the number of licensees paying annual fees. The NRC
concluded that this approach is ``practicable'' and fully consistent
with its statutory mandate. Most commenters in FY 1995 agreed that this
method represented a simplification and streamlining of the fee-setting
procedures and was necessary to eliminate the large fluctuations in
annual fees that had occurred in the past and to provide for greater
predictability of fees. At that time, neither NEI nor any reactor
licensee objected to the proposed method. Based on the comments
received supporting the methodology, the NRC adopted the change, and
the revised method was used to determine the FY 1996 and FY 1997 annual
fees. The revised method was not challenged by commenters when it
produced a reduction of about 6 percent in FY 1996, and at the time NEI
stated that it was ``pleased that the annual fees for licensees are
being lowered by slightly over 6%'' (letter to John C. Hoyle, Secretary
of the Commission, from William H. Rasin, NEI, dated February 28,
1996). The Commission reaffirmed the legality of its approach in its
denial of an NEI petition seeking reconsideration of the final fee rule
for fiscal year 1997. See, October 1, 1997, letter from John C. Hoyle,
Secretary of the Commission, to Robert W. Bishop, Vice President and
General Counsel, Nuclear Energy Institute.
With regard to the question of whether the criteria established by
NRC for rebaselining have been met, the NRC specifically stated in the
proposed rule that there has not been a substantial change in the NRC
budget or the magnitude of a specific budget allocation to a class of
licensees. The FY 1998 budgeted amount to be recovered through NRC's
fees is $7.5 million less than in FY 1997. This is clearly not a
substantial change. Similarly, as reflected in the NRC's annual
budgets, there have not been major changes in the allocation of
budgeted resources to specific classes of licensees.
This final rule adopts the methodology to streamline and stabilize
FY 1998 annual fees by adjusting these fees by the percentage change in
NRC's total budget authority. The FY 1997 fees have been used as base
annual fees, and these fees have been adjusted for FY 1998 based on the
percentage change in NRC's budget authority, taking into consideration
the total number of licensees paying fees and estimated collections
from 10 CFR Part 170 fees. The amounts of the annual fees for some of
the classes of licensees have decreased since the publication of the
proposed rule. The proposed FY 1998 annual fees were developed using an
estimated number of days for proration of the FY 1998 annual fees for
Zion Stations Units 1 and 2. As a result of this estimation, the FY
1998 proposed annual fees were based on the equivalent of 2.5 fewer
power reactors paying annual fees in FY 1998 than in FY 1997, and the
proposed FY 1998 annual fees increased by 0.1 percent compared to the
actual (prior to rounding) FY 1997 annual fees. The final FY 1998
annual fees have been developed based on the certification dates for
permanent cessation of operations and permanent removal of fuel from
the Zion 1 and 2 reactor vessels. The certifications were filed later
in the fiscal year than anticipated when the proposed rule was
developed, resulting in the equivalent of 2.3 fewer power reactors
paying annual fees in FY 1998 than in FY 1997. The result is that the
final FY 1998 annual fees have decreased by about 0.1 percent compared
to the FY 1997 actual (prior to rounding) annual fees.
2. Comment. FPL stated that the proposed rule does not reflect any
Commission consideration of the specific services driving the cost
increase. FPL also questioned why the reactor annual fee was not
reduced in light of the premature shutdown of four nuclear units in FY
1997. Another commenter, Tennessee Valley Authority (TVA), stated that,
with the shift from operating reactor oversight to decommissioning
activities, strong action to reduce overhead and central staff appears
appropriate. TVA also stated that the 10 percent fewer power licensees
with much better average performance than in the past should yield
reductions in total NRC fees.
Response. Although the proposed reactor annual fee increased
slightly, by 0.1 percent, from FY 1997, the total budget to be
recovered through fees decreased by $7.5 million from FY 1997. In fact,
the proposed rule reflected a decrease in the total annual fees for the
power reactor class of licensees of approximately $7.4 million compared
to FY 1997. The slight increase in the proposed annual fee to be
assessed to each reactor licensee was not the result of increased costs
or a lack of consideration of the specific services. Rather, the
proposed change was primarily the result of the equivalent of 2.5 fewer
reactors paying the annual fee compared to FY 1997. As explained in
response to the above comment, this final rule reflects the equivalent
of 2.3 fewer reactors paying the FY 1998 fees, and as a result the
final FY 1998 annual fees decreased by 0.1 percent compared to the FY
1997 exact (prior to rounding) annual fees.
B. Fees for Services That do not Benefit Licensees
1. Comment. NEI, FPL, and TVA continued to urge NRC to take action
to eliminate fees for services that do not benefit the licensees paying
the annual fees. FPL and NEI concluded that recovering the costs of
these activities from reactor licensees violates the provision of OBRA-
90 that the charges shall have a reasonable relationship to the cost of
providing regulatory services. FPL argued that assessing these non-
[[Page 31842]]
reactor costs to reactor licensees exceeds the Congressional delegation
of authority and is arbitrary and capricious, and therefore violates
the Equal Protection requirements of the Due Process Clause of the
Fifth Amendment to the United States Constitution. NEI suggested that
the NRC could conclude that recovering 88 percent of its budget
authority by eliminating these costs from fee recovery is consistent
with the requirement of OBRA-90 to recover ``approximately'' 100
percent of its budget authority from fees, or NRC could seek
legislation to resolve the issue, as it has committed to do in the
past.
Response. As NRC has stated on many occasions, it shares
commenters' concerns that licensees are paying for activities that do
not directly benefit them. However, the NRC disagrees with the
assertion that recovering these costs from licensees violates statutory
requirements. In fact, the Congressional guidelines provided in the
Conference Report to the 100 percent fee recovery legislation
specifically provide for the assessment of fees to licensees to recover
agency costs that may not provide direct benefits to them. The
conferees recognized that ``Congress must indicate clearly its
intention to delegate to the Executive the discretionary authority to
recover administrative costs not inuring directly to the benefit of
regulated parties'' and that Congress must provide guidelines for
making these assessments. The conferees recognized that certain
expenses cannot be attributed either to an individual or to classes of
NRC licensees. The conferees intended that the NRC fairly and equitably
recover these expenses from its licensees through the annual charge
even though these expenses cannot be attributed to individual licensees
or classes of licensees. These expenses may be recovered from the
licensees as the Commission, in its discretion, determines can fairly,
equitably, and practicably contribute to their payment. (136 Cong. Rec.
at H12692-3.) Based on these explicit guidelines, the NRC concludes
that the assessment of fees to recover these costs from licensees is
neither arbitrary nor capricious, and does not violate any statute.
Nevertheless, the NRC continues to take action to minimize the
impacts of recovering the costs of these activities from licensees.
Although legislation recommended in NRC's February 23, 1994, Report to
Congress to address these concerns has not been enacted, the NRC has
taken several steps to mitigate the perceived inequities within the
constraints of existing law. For example, the Commission successfully
obtained appropriation legislation that removed from the fee base
certain costs incurred as a result of regulatory reviews and other
assistance provided to the Department of Energy and other Federal
agencies. In addition, when authorized by law, the NRC has made a
concerted effort to obtain reimbursements for services provided to
other Federal agencies. The NRC has not submitted proposed legislation
that would take out of the fee base the costs of services that do not
provide direct benefits to licensees because the Office of Management
and Budget has advised that such legislation would be inconsistent with
the President's budget. The NRC notes that the Senate Committee on
Environment and Public Works recently ordered to be reported
legislation which would exclude up to $30 million each year from the
NRC's fee base.
The NRC disagrees that eliminating these costs from fee recovery,
thereby recovering 88 percent of the budget, would meet the OBRA-90
requirement that NRC recover approximately 100 percent of its budget
authority through fees. As the NRC stated in the statement of
considerations accompanying the FY 1991 final rule (56 FR 31474), it
interprets the words ``approximately 100 percent'' as meaning that the
Commission should promulgate a rule that identifies and allocates as
close to 100 percent of its budget authority to the various classes of
NRC licensees as is practical. The Commission concluded that, based on
the Conference Report guidelines, it was Congress' intent that the
Commission allocate 100 percent of its budget authority for fee
assessment, and that the term ``approximately 100%'' refers only to the
inherent uncertainties in estimating and collecting the fees.
Furthermore, in NRC's annual appropriations acts, the Congress presumes
that the NRC fee collections will approximate 100 percent, not 88
percent, of its budget authority. See, e.g., Title IV of the Energy and
Water Development Appropriations Act, 1998, P.L. 105-62.
The Conference Report guidance also provides that the costs be
``recovered from such licensees as the Commission in its discretion
determines can fairly, equitably and practicably contribute to their
payment.'' The FY 1995 fee rule, which established the baselines used
in subsequent annual fee rules, including the current one, allocated
the cost of the activities that raised fairness and equity concerns to
all licensees based on the budgeted dollars for each class of licensee.
This allocation results in the entire population of NRC licensees
paying for these costs (see 60 FR 14670, 14674). This continues to be a
sensible approach.
C. Part 170 Fees
1. Comment. NEI and FPL indicated that NRC should increase the
percentage of costs recovered through Part 170 fees. FPL claimed that
there is no exemption authority from the provision that ``any person
who receives a service or thing of value from the Commission shall pay
fees to cover the Commission's costs in providing any such service or
thing of value.'' NEI stated that ``.....79 percent of the fees
proposed to be collected from NRC licensees are for non-discrete
services. This approach makes it too easy to shift personnel from
providing discrete services to working on generic issues, thereby
increasing overhead costs as actual services provided to individual
licensees decline, rather than make the hard decisions of what
activities are really necessary.'' FPL concluded that NRC has not
adequately allocated costs to the beneficiaries of the services. NEI
and TVA supported NRC's proposed full-cost provision for resident
inspectors; however, TVA indicated that time for resident inspectors
assigned to special inspections at other plants should be charged to
those specific inspections. TVA supported the reduced hourly rate and
NRC's proposed long-term policy to progress bill for all inspections.
Response. The NRC previously responded to commenters' claim that
there is no exemption authority from the provision that those receiving
a service shall pay fees to cover the Commission's costs of providing
the service (62 FR 29195). As the NRC pointed out in that response, the
NRC is barred by law from charging most Federal agencies 10 CFR Part
170 fees, and exemptions from fees granted by the NRC are well founded
in law and are granted only after full and public consideration of the
relevant policy questions.
The proposed rule included several actions that would lead to
increased cost recovery under Part 170 for services provided to
identifiable beneficiaries. The NRC is adopting the proposed change to
recover full cost for resident inspectors under 10 CFR Part 170;
however, as a result of the comments received the NRC has clarified in
10 CFR 170.12(g) that time spent by a resident inspector in support of
activities at other sites will not be billed to the site to which the
resident inspector is assigned. The NRC is also adopting the proposed
change to recover costs incurred within 30 days after the inspection
report is issued, and the
[[Page 31843]]
procedural change to assess Part 170 fees for licensing and inspection
activities performed during compensated overtime. Because this final
rule will not be effective before the fourth quarter of FY 1998, the
increased Part 170 collections for these activities do not affect the
FY 1998 fee calculations, but will be reflected in the FY 1999 fee
rule. As indicated in the proposed rule, the NRC will progress bill for
inspections under certain circumstances. Based on the comments
received, the necessary changes to 10 CFR 170 will be made in future
rulemaking once the system is available to accommodate progress billing
for all inspections.
The NRC has established in this FY 1998 final rule a professional
hourly rate of $124 for the reactor program and $121 per hour for the
materials program. These revised rates, which are a reduction from the
FY 1997 rates, will be used to determine the 10 CFR Part 170 fees.
The NRC has already taken steps to evaluate other areas for
potential cost recovery under Part 170, with the intention of including
the recommended activities in the FY 1999 proposed fee rule for public
comment.
D. Annual Fees for Certificates of Compliance Issued to the United
States Enrichment Corporation
1. Comment. The United States Enrichment Corporation (USEC)
requested that a single annual fee be assessed for the two Gaseous
Diffusion Plants (GPDs) operated by USEC and that the fee be reduced to
a value commensurate with the proposed fee for the low-enriched uranium
fuel fabrication facilities. USEC submitted detailed information to
support its request. USEC stated that its comments not only address its
belief that the proposed rule is not fair and equitable, but also serve
as a request for reconsideration of the NRC's March 23, 1998, denial of
USEC's request for an exemption from the annual fees.
Response. NRC rejected similar arguments from USEC in the FY 1997
final rule (62 FR 29197), and in its March 23, 1998, denial of USEC's
annual fee exemption request. The NRC continues to believe for the
reasons stated in these documents that the USEC must pay a full annual
fee for each of its enrichment facilities and that its facilities have
been placed in the appropriate fee category. Insofar as USEC's comment
letter requested a reconsideration of NRC's March 23, 1998, denial of
its annual fee exemption request, the NRC will respond to that request
separately.
III. Final Action
The NRC is amending its licensing, inspection, and annual fees to
recover approximately 100 percent of its FY 1998 budget authority,
including the budget authority for its Office of the Inspector General,
less the appropriations received from the NWF and the General Fund. For
FY 1998, the NRC's budget authority is $472.8 million, of which $15.0
million has been appropriated from the NWF. In addition, $3.0 million
has been appropriated from the General Fund for activities related to
commercial vitrification of waste stored at the Department of Energy
Hanford, Washington, site and for the pilot program for the external
regulation of the Department of Energy. The FY 1998 appropriation
language states that the $3.0 million appropriated for regulatory
reviews and other activities pertaining to waste stored at the Hanford,
Washington, site and activities associated with the pilot program for
external regulation of the Department of Energy shall be excluded from
license fee revenues notwithstanding 42 U.S.C. 2214. Therefore, NRC is
required to collect approximately $454.8 million in FY 1998 through 10
CFR Part 170 licensing and inspection fees and 10 CFR Part 171 annual
fees.
The total amount to be recovered in fees for FY 1998 is $7.5
million less than the amount estimated for recovery for FY 1997. The
NRC estimates that approximately $94.6 million will be recovered in FY
1998 from fees assessed under 10 CFR Part 170 and other receipts,
compared to $95.2 million in FY 1997. The remaining $360.2 million will
be recovered in FY 1998 through the 10 CFR Part 171 annual fees,
compared to $367.1 for FY 1997.
In addition to the decrease in the amount to be recovered through
annual fees and the slight reduction in the estimated amount to be
recovered in 10 CFR Part 170 fees, the number of licensees paying
annual fees in FY 1998 has decreased compared to FY 1997. For example,
Commonwealth Edison notified the NRC that the Zion Station Units 1 and
2 ceased operations on February 13, 1998. On March 11, 1998, the NRC
docketed Commonwealth Edison's certification that all fuel has been
removed from the Zion Station Units 1 and 2 reactor vessels. In
addition, both the Haddam Neck Plant and the Maine Yankee Plant ceased
operations during FY 1997 and therefore are not subject to the FY 1998
annual fees. This is equivalent to a reduction of 2.3 power reactors
subject to the FY 1998 annual fees compared to FY 1997. The Big Rock
Point Plant, a small, older reactor historically granted a partial
exemption from the annual fee, also ceased operations in FY 1997 and is
no longer subject to annual fees.
The proposed FY 1998 annual fees were developed using an estimated
number of days for proration of the FY 1998 annual fees for Zion
Station Units 1 and 2. As a result of this estimation, the FY 1998
proposed annual fees were based on the equivalent of 2.5 fewer power
reactors paying annual fees in FY 1998 than in FY 1997, and the
proposed FY 1998 annual fees increased by 0.1 percent compared to the
actual (prior to rounding) FY 1997 annual fees. The final FY 1998
annual fees have been developed based on the Zion 1 and 2
certifications of permanent cessation of operations and permanent
removal of fuel from the reactor vessels, which were filed later in the
fiscal year than anticipated when the proposed rule was developed,
resulting in the equivalent of 2.3 fewer power reactors paying annual
fees in FY 1998 than in FY 1997. As a result, the final FY 1998 annual
fees decreased by about 0.1 percent compared to the FY 1997 actual
(prior to rounding) annual fees.
Because this is a slight decrease, the final (rounded) FY 1998
annual fees for many fee categories are the same as the final (rounded)
FY 1997 annual fees. The change to the annual fees is described in more
detail in Section B. The following examples illustrate the changes in
annual fees:
------------------------------------------------------------------------
FY 1997 annual FY 1998 annual
fee fee
------------------------------------------------------------------------
Class of Licensees:
Power Reactors...................... $2,978,000 $2,976,000
Nonpower Reactors................... 57,300 57,300
High Enriched Uranium Fuel Facility. 2,606,000 2,604,000
Low Enriched Uranium Fuel Facility.. 1,279,000 1,278,000
UF6 Conversion Facility............. 648,000 648,000
[[Page 31844]]
Uranium Mills....................... 61,800 61,700
Typical Materials Licenses:
Radiographers....................... 14,100 14,000
Well Loggers........................ 8,200 8,200
Gauge Users......................... 1,700 1,700
Broad Scope Medical................. 23,500 23,500
------------------------------------------------------------------------
Because the final FY 1998 fee rule will be a ``major'' final action
as defined by the Small Business Regulatory Enforcement Fairness Act of
1996, the NRC's fees for FY 1998 will become effective 60 days after
publication of the final rule in the Federal Register. The NRC will
send an invoice for the amount of the annual fee upon publication of
the FY 1998 final rule to reactors and major fuel cycle facilities. For
these licensees, payment will be due on the effective date of the FY
1998 rule. Those materials licensees whose license anniversary date
during FY 1998 falls before the effective date of the final FY 1998
final rule will be billed during the anniversary month of the license
and continue to pay annual fees at the FY 1997 rate in FY 1998. Those
materials licensees whose license anniversary date falls on or after
the effective date of the FY 1998 final rule will be billed at the FY
1998 revised rates during the anniversary month of the license and
payment will be due on the date of the invoice.
As announced in the proposed rule, the NRC will no longer mail the
final rule to all licensees. In addition to publication in the Federal
Register, the final rule is available on the Internet at http://
ruleforum.llnl.gov/.
Copies of the final rule will be mailed upon request. To obtain a
copy of the final rule, contact the License Fee and Accounts Receivable
Branch, Division of Accounting and Finance, Office of the Chief
Financial Officer, at 301-415-7554. As a matter of courtesy, the NRC
plans to continue in future years to send the proposed rule to all
licensees.
The NRC also announced in the proposed rule that it plans to
reexamine its current policy of exempting from annual fees those
licensees whose facilities are being decommissioned, or who have
possession only licenses. The proposed rule stated that this review
would also reexamine NRC's annual fee policy for reactors' storage of
spent fuel. Any changes to the current fee policies resulting from
these reexaminations will be included in the FY 1999 fee rulemaking.
One purpose of the study is to assure consistent fee treatment for both
wet storage (i.e., spent fuel pool) and dry storage (i.e., independent
spent fuel storage installations, or ISFSIs) of spent fuel. The
Commission has previously determined that both storage options are
considered safe and acceptable forms of storage for spent fuel. Under
current fee regulations, Part 50 licensees whose facilities are being
decommissioned and who store spent fuel in a spent fuel pool are not
assessed an annual fee, but licensees who store spent fuel in an ISFSI
under Part 72 are assessed an annual fee. The NRC will review this
policy as part of the overall study of the issues related to annual
fees for licensees of facilities being decommissioned.
The NRC is amending 10 CFR Parts 170 and 171 as discussed in
Sections A. and B. below
A. Amendments to 10 CFR Part 170: Fees for Facilities, Materials,
Import and Export Licenses, and Other Regulatory Services
Four amendments have been made to 10 CFR 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 amendments 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 identifiable regulatory services that each
applicant or licensee receives.
First, the NRC is amending Sec. 170.12(g) to include the following
for cost recovery:
(1) Full-cost recovery for resident inspectors.
Because the assignment of resident inspectors to a site is an
identifiable service to a specific licensee, the NRC will bill the
specific licensee for all of the resident inspectors' time, excluding
leave and time spent by a resident inspector in support of activities
at another site. This change is applicable to all classes of licensees
having resident inspectors.
(2) Costs expended within approximately 30 days after the issuance
of an inspection report.
Part 170 fees will be assessed for activities that occur within
approximately 30 days after the inspection report is issued, such as
follow-up on the inspection findings. These activities are identifiable
services for specific licensees. This change will result in recovery
through Part 170 fees of approximately 80 percent of the accumulated
costs expended after the inspection report is sent, and will continue
to provide applicants and licensees with a definitive point at which
billing will cease.
Second, the NRC is revising Sec. 170.12(h) to include credit cards
as an additional method of payment, and to provide additional
information on electronic payments. Credit card payments will be
accepted up to the limit established by the credit card bank.
Electronic payments may be made by Fedwire (a funds transfer system
operated by the Federal Reserve System) or by Automated Clearing House
(ACH). ACH is a nationwide processing and delivery facility that
provides for the distribution and settlement of electronic financial
transactions. Electronic payment will not only expedite the payment
process, but will also save applicants and licensees considerable time
and money over a paper-based payment system.
Third, the two professional hourly rates established in FY 1997 in
Sec. 170.20 are revised based on the FY 1998 budget. These rates are
based on the FY 1998 direct FTEs and the FY 1998 budget excluding
direct program support (contractual services costs) and the
appropriation from the NWF or the General Fund. These rates are used to
determine the Part 170 fees. The NRC has established a rate of $124 per
hour ($219,901 per direct FTE) for the reactor program. This rate is
applicable to all activities for which fees are based on full cost
under Sec. 170.21 of the fee regulations. A second rate of $121 per
hour ($214,185 per direct FTE) is established for the nuclear materials
and nuclear waste program. This rate is applicable to all materials
activities for which fees are based on full cost under Sec. 170.31 of
the fee regulations. In the FY 1997 final fee rule, these rates were
$131 and $125, respectively. The decrease in the hourly rates is
primarily due to a change in application of the
[[Page 31845]]
types of costs included in the hourly rates. Previously, the hourly
rates were determined based on the premise that surcharge costs should
be shared by those paying Part 170 fees for services as well as those
paying Part 171 annual fees. The revised hourly rates have been
determined based on the principle that the surcharge costs are more
appropriately included only in the Part 171 annual fee.
In addition, Section Chiefs are included as overhead in the
calculation of the FY 1998 hourly rates, and any specific Section Chief
effort expended for reviews and inspections will not be billed to the
applicant or licensee. Previously, the Section Chiefs' time for
specific licensing and inspection activities were directly billed under
Part 170 to the applicant or licensee. This change is consistent with
the current budget structure which includes Section Chiefs as overhead.
Fourth, the NRC has adjusted the current Part 170 licensing fees in
Secs. 170.21 and 170.31 to reflect the revised hourly rates.
In addition, although not a specific change to Part 170, the NRC
will assess Part 170 fees for compensated overtime hours expended for
activities covered by Part 170, such as reviews of applications,
inspections, Part 55 exams, and special projects. The compensated
overtime hours will be billed at the normal hourly rate.
The NRC will also bill for accumulated inspection costs prior to
issuance of the inspection report under certain circumstances. NRC
plans to progress bill for inspections in selected cases where it is
determined that such billing would be in the best interest of the
agency and the licensee. If it is determined that the accumulated costs
warrant an exception to the billing method currently provided in 10 CFR
170.12(g), NRC will coordinate with the licensee to establish a
mutually agreeable billing schedule and will issue an invoice for
inspection costs that have accumulated.
The NRC is developing a system that will accommodate routine
billing for accumulated inspection costs at a specified interval. Once
that system is available, the NRC intends to progress bill for all
inspections. The staff sought early comment on the long-term policy in
the FY 1998 proposed rule, and received one comment supporting the
change. The necessary revision to 10 CFR 170 will be made in future
rulemaking when the system is available to accomplish this.
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
Four amendments have been made to 10 CFR Part 171.
First, the NRC is amending Sec. 171.13 to delete specific fiscal
year references.
Second, the NRC is amending Secs. 171.15 and 171.16 to revise the
annual fees for FY 1998 to recover approximately 100 percent of the FY
1998 budget authority, less fees collected under 10 CFR Part 170 and
funds appropriated from the NWF and the General Fund. In the FY 1995
final rule, the NRC stated that it would stabilize annual fees as
follows. Beginning in FY 1996, the NRC would adjust the annual fees
only by the percentage change (plus or minus) in NRC's total budget
authority unless there was a substantial change in the total NRC budget
authority or the magnitude of the budget allocated to a specific class
of licensees. If either case occurred, the annual fee base would be
recalculated as discussed in the FY 1995 final rule (60 FR 32225; June
20, 1995). In the FY 1995 rule, the NRC also indicated that the
percentage change would be adjusted based on changes in 10 CFR Part 170
fees and other adjustments as well as on the number of licensees paying
the fees.
In the FY 1996 final rule, the NRC stabilized the annual fees by
establishing the annual fees for all licensees at a level of 6.5
percent below the FY 1995 annual fees. For FY 1997, the NRC followed
the same method as used in FY 1996. Because the amount to be recovered
through fees for FY 1997 was identical to the amount to be recovered in
FY 1996, establishing new baseline fees was not warranted for FY 1997.
Based on a change in the distribution between Parts 170 and 171 fees, a
reduction in the amount of the budget recovered from 10 CFR Part 170
fees, a reduction in other offsetting adjustments, and a reduction in
the number of licensees paying annual fees, the FY 1997 annual fees for
all licensees increased 8.4 percent compared to the FY 1996 annual
fees. In addition, beginning in FY 1997, the NRC made an adjustment to
recognize that all fees billed in a fiscal year are not collected in
that year.
As indicated in the FY 1995 final rule, because there has not been
a substantial change in the NRC budget or in the magnitude of a
specific budget allocation to a class of licensees, the NRC followed
the same method used for FY 1996 and FY 1997 to establish the FY 1998
annual fees.
The FY 1998 amount to be recovered through fees is approximately
$454.8 million, which is $7.5 million less than in FY 1997. The
estimated amount to be recovered in 10 CFR Part 170 fees is $94.6
million, compared to $95.2 million for FY 1997. In addition, there are
the equivalent of 2.3 fewer power reactors subject to annual fees in FY
1998. There is also a reduction of approximately 200 transportation
quality assurance approvals as a result of the rulemaking in 1997 that
combined these approvals with the Part 34 radiography licenses.
The NRC is establishing the FY 1998 annual fees for all licensees
at about 0.1 percent below the FY 1997 actual (prior to rounding)
annual fees. Based on the small change, the rounded FY 1998 annual fee
for many fee categories is the same as the final (rounded) FY 1997
annual fee. Therefore, for many licensees, the annual fee for FY 1998
is the same as the FY 1997 annual fee. Table I shows the total budget
and amounts of fees for FY 1997 and FY 1998.
Table I.--Calculation of the Percentage Change to the FY 1997 Annual
Fees
[Dollars in millions]
------------------------------------------------------------------------
FY 1997 FY 1998
------------------------------------------------------------------------
Total Budget.................................. $476.8 $472.8
Less NWF.................................. -11.0 -15.0
Less General Fund (Hanford Tanks, Pilot
for Regulation of DOE)................... -3.5 -3.0
-------------------------
Total Fee Base................................ 462.3 454.8
Less Part 170 Fees........................ -95.2 -94.6
Less other receipts....................... ........... ...........
-------------------------
[[Page 31846]]
Part 171 Fee Collections Required............. 367.1 360.2
Part 171 Billing Adjustment: \1\
Small Entity Allowance.................... 5.0 5.8
Unpaid current FY invoices................ 3.0 3.9
Payments from prior year invoices......... -2.0 -3.2
-------------------------
Subtotal.............................. 6.0 6.5
=========================
Total Part 171 Billing................ 373.1 366.7
------------------------------------------------------------------------
\1\ These adjustments are necessary to ensure that the ``billed'' amount
results in the required collections. Positive amounts indicate amounts
billed that will not be collected in FY 1998.
Third, Footnote 1 of 10 CFR 171.16(d) is amended to provide for a
waiver of annual fees for FY 1998 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 before October 1, 1997, and permanently ceased
licensed activities entirely by September 30, 1997. All other licensees
and approval holders who held a license or approval on October 1, 1997,
are subject to FY 1998 annual fees. This change is being made in
recognition of the fact that since the final FY 1997 rule was published
in May 1997, some licensees have filed requests for termination of
their licenses or certificates with the NRC. Other licensees have
either telephoned or written to the NRC since the FY 1997 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 requests before the end of FY 1997 on September
30, 1997. Similar situations existed after the FY 1991-1996 rules were
published, and in those cases, the NRC provided an exemption from the
requirement that the annual fee is waived only when a license is
terminated before October 1 of each fiscal year.
Fourth, Sec. 171.19 is amended to update fiscal year references and
to credit the partial payments made by certain licensees in FY 1998
either toward their total annual fee to be assessed or to make refunds,
if necessary. Section 171.19(a) is also amended to provide credit cards
as an additional method of payment, and to provide additional
information on electronic payments. Credit card payments will be
accepted up to the limit established by the credit card bank.
Electronic payments may be made by Fedwire (a funds transfer system
operated by the Federal Reserve System) or by Automated Clearing House
(ACH). ACH is a nationwide processing and delivery facility that
provides for the distribution and settlement of electronic financial
transactions. Electronic payments will not only expedite the payment
process, but will also save applicants and licensees considerable time
and money over a paper-based payment system.
The NRC will send an invoice to reactors and major fuel cycle
facilities for the amount of the annual fee after publication of the FY
1998 final rule. For these licensees, payment will be due on the
effective date of FY 1998 rule. Those materials licensees whose license
anniversary date during the FY 1998 falls before the effective date of
the final FY 1998 rule will be billed during the anniversary month of
the license and continue to pay annual fees at the FY 1997 rate in FY
1998. Those materials licensees whose license anniversary date falls on
or after the effective date of the final FY 1998 rule will be billed,
at the FY 1998 revised rates, during the anniversary month of the
license and payment will be due on the date of the invoice.
The final changes to 10 CFR Part 171 are consistent with the NRC's
FY 1995 final rule indicating that, for the period FY 1996-1999, the
expectation is that annual fees would be adjusted by the percentage
change (plus or minus) to the NRC's budget authority adjusted for NRC
offsetting receipts and the number of licensees paying annual fees.
In addition to the amendments to 10 CFR Parts 170 and 171, the NRC
is amending 10 CFR Parts 2 and 140 to include the additional methods of
payments provided in 10 CFR Parts 170 and 171.
IV. Section-by-Section Analysis
The following analysis of those sections that will be amended by
this final rule provides additional explanatory information. All
references are to Title 10, Chapter I, U.S. Code of Federal
Regulations.
Part 2
Section 2.205 Civil Penalties
Paragraph 2.205(I) is amended to provide additional methods of
payment, such as Automated Clearing House and credit cards, and to
clarify that payments are to be made in U.S. funds to the U.S. Nuclear
Regulatory Commission.
Part 140
Section 140.7 Fees
Paragraphs (a)(5) and (c) are amended to delete references to
payment instructions. A new paragraph (d) is added to provide payment
instructions, including clarification that payments are to be made in
U.S. funds to the U.S. Nuclear Regulatory Commission and to provide
additional methods of payments, such as Automated Clearing House and
credit cards.
Part 170
Section 170.12 Payment of Fees
Paragraph (g) is amended to indicate that costs incurred within
approximately 30 days after an inspection report is issued will be
billed to the specific licensee, and that for each site having a
resident inspector(s), the licensee will be billed for all of the
resident inspectors' time, excluding leave and time spent by a resident
inspector in support of activities at another site.
Paragraph (h) is revised to provide additional methods of payment
for fees assessed under 10 CFR Part 170 and to clarify that payment
should be made in U.S. funds.
Section 170.20 Average Cost per Professional Staff-Hour
This section is amended to establish two professional staff-hour
rates based on FY 1998 budgeted costs--one for the
[[Page 31847]]
reactor program and one for the nuclear material and nuclear waste
program. Accordingly, the NRC reactor direct staff-hour rate for FY
1998 for all activities whose fees are based on full cost under
Sec. 170.21 is $124 per hour, or $219,901 per direct FTE. The NRC
nuclear material and nuclear waste direct staff-hour rate for all
materials activities whose fees are based on full cost under
Sec. 170.31 is $121 per hour, or $214,185 per direct FTE. The rates are
based on the FY 1998 direct FTEs and NRC budgeted costs that are not
recovered through the appropriation from the NWF or the General Fund.
The NRC has continued the use of cost center concepts established in FY
1995 in allocating certain costs to the reactor and materials programs
in order to more closely align budgeted costs with specific classes of
licensees. The method used to determine the two professional hourly
rates is as follows:
1. Direct program FTE levels are identified for both the reactor
program and the nuclear material and waste program.
2. Direct contract support, which is the use of contract or other
services in support of the line organization's direct program, is
excluded from the calculation of the hourly rate because the costs for
direct contract support are charged directly through the various
categories of fees.
3. All other direct program costs (i.e., Salaries and Benefits,
Travel) represent ``in-house'' costs and are to be allocated by
dividing them uniformly by the total number of direct FTEs for the
program. In addition, salaries and benefits plus contracts for general
and administrative support are allocated to each program based on that
program's salaries and benefits. This method results in the following
costs which are included in the hourly rates.
Table II.--FY 1998 Budget Authority to be Included in Hourly Rates
[Dollars in millions]
------------------------------------------------------------------------
Reactor Materials
program program
------------------------------------------------------------------------
Direct Program Salaries & Benefits............ $103.9 $20.5
Overhead Salaries & Benefits, Program Travel
and Other Support............................ 55.3 14.8
Allocated Agency Management and Support....... 101.7 22.0
-------------------------
Subtotal.................................. 260.9 57.3
Less offsetting receipts...................... ........... ...........
Total Budget Included in Hourly Rate...... 260.9 57.3
Program Direct FTEs........................... 1,186.4 267.3
Rate per Direct FTE........................... 219,901 214,185
Professional Hourly Rate (Rate per direct FTE
divided by 1,776 hours)...................... 124 121
------------------------------------------------------------------------
Dividing the $260.9 million (rounded) budget for the reactor
program by the reactor program direct FTEs (1,186.4) results in a rate
for the reactor program of $219,901 per FTE for FY 1998. Dividing the
$57.3 million (rounded) budget for the nuclear materials and nuclear
waste program by the program direct FTEs (267.3) results in a rate of
$214,185 per FTE for FY 1998. The direct FTE hourly rate for the
reactor program is $124 per hour (rounded to the nearest whole dollar).
This rate is calculated by dividing the cost per direct FTE ($219,901)
by the number of productive hours in one year (1,776 hours) as
indicated in the revised OMB Circular A-76, ``Performance of Commercial
Activities.'' The direct FTE hourly rate for the materials program is
$121 per hour (rounded to the nearest whole dollar). This rate is
calculated by dividing the cost per direct FTE ($214,185) by the number
of productive hours in one year (1,776 hours).
The FY 1998 hourly rates are slightly lower than the FY 1997 rates.
The decrease in the hourly rates is primarily due to a change in
application of the types of costs included in the hourly rates.
Previously, the hourly rates were determined based on the premise that
surcharge costs should be shared by those paying Part 170 fees for
services as well as those paying Part 171 annual fees. The FY 1998
hourly rates have been determined based on the principle that the
surcharge costs are more appropriately included only in the Part 171
annual fee.
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 NRC is revising the licensing and inspection fees in this
section, which are based on full-cost recovery, to reflect FY 1998
budgeted costs and to recover costs incurred by the NRC in providing
licensing and inspection services to identifiable recipients. The fees
assessed for services provided under the schedule are based on the
professional hourly rate, as shown in Sec. 170.20, for the reactor
program and any direct program support (contractual services) costs
expended by the NRC. Any professional hours expended on or after the
effective date of the final rule will be assessed at the FY 1998 hourly
rate for the reactor program, as shown in Sec. 170.20. The fees in
Sec. 170.21 for the review of import and export licensing, facility
Category K, are adjusted for FY 1998 to reflect the revised hourly
rate.
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, which are based
on full-cost recovery, are modified to recover the FY 1998 costs
incurred by the NRC in providing licensing and inspection services to
identifiable recipients. The fees assessed for services provided under
the schedule are based on both the professional hourly rate as shown in
Sec. 170.20 for the materials program and any direct program support
(contractual services) costs expended by the NRC. Licensing fees based
on the average time to review an application (``flat'' fees) are
adjusted to reflect the decrease in the professional hourly rate from
$125 per hour in FY 1997 to $121 per hour in FY 1998.
The amounts of the materials licensing ``flat'' fees were rounded
so that the amounts would be de minimis and the resulting flat fee
would be convenient to the user. Fees under $1,000 are rounded to the
nearest $10. Fees that are greater than $1,000 but less than $100,000
are rounded to the nearest $100. Fees that are greater than $100,000
are rounded to the nearest $1,000.
[[Page 31848]]
The licensing ``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, 15.A
through 15.E and 16. Applications filed on or after the effective date
of the final rule will be subject to the fees in this final rule.
For those licensing, inspection, and review fees that are based on
full-cost recovery (cost for professional staff hours plus any
contractual services), the materials program hourly rate of $121, as
shown in Sec. 170.20, applies to those professional staff hours
expended on or after the effective date of the final rule.
Part 171
Section 171.13 Notice
The language in this section is revised to delete specific fiscal
year references.
Section 171.15 Annual Fee: Reactor Operating Licenses
The annual fees in this section are revised as described below.
Paragraphs (b), (c) (1), (c)(2), (e) and (f) are revised to comply
with the requirement of OBRA-90 that the NRC recover approximately 100
percent of its budget for FY 1998.
Paragraph (b) is revised in its entirety to establish the FY 1998
annual fee for operating power reactors and to change fiscal year
references from FY 1997 to FY 1998. The fees are established by
decreasing the FY 1997 annual fees (prior to rounding) by 0.1 percent.
In the FY 1995 final rule, the NRC stated it would stabilize annual
fees by adjusting the annual fees only by the percentage change (plus
or minus) in NRC's total budget authority and adjustments based on
changes in 10 CFR Part 170 fees as well as in the number of licensees
paying the fees. The activities comprising the base FY 1995 annual fee
and the FY 1995 additional charge (surcharge) are listed in paragraphs
(b) and (c) for convenience purposes.
The FY 1998 annual fee for each operating power reactor is
$2,976,000.
Paragraph (e) is revised to show the amount of the FY 1998 annual
fee for nonpower (test and research) reactors. The 1998 annual fee of
$57,300 is the same as the FY 1997 annual fee. The NRC will continue to
grant exemptions from the annual fee to Federally-owned and State-owned
research and test reactors that meet the exemption criteria specified
in Sec. 171.11(a)(2).
Paragraph (f) is revised to delete specific fiscal year date
references.
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
Section 171.16(c) covers the fees assessed for those licensees that
can qualify as small entities under NRC size standards. 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 by completing
and signing NRC Form 526 that it is a small entity. The NRC will
continue to assess two fees for licensees that qualify as small
entities under the NRC's size standards. In general, licensees with
gross annual receipts of $350,000 to $5 million pay a maximum annual
fee of $1,800. A second or lower-tier small entity fee of $400 is in
place for small entities with gross annual receipts of less than
$350,000 and small governmental jurisdictions with a population of less
than 20,000. No change in the amount of the small entity fees is being
made because the small entity fees are not based on budgeted costs but
are established at a level to reduce the impact of fees on small
entities. The small entity fees are shown in the final rule for
convenience.
Section 171.16(d) is revised to establish the FY 1998 annual fees
for materials licensees, including Government agencies, licensed by the
NRC. The annual fees were determined by decreasing the FY 1997 annual
fees (prior to rounding) by about 0.1 percent. After rounding, many of
the FY 1998 annual fees for materials licensees are the same as the FY
1997 annual fees.
The amount or range of the FY 1998 annual fees for materials
licenses is summarized as follows.
Materials Licenses Annual Fee Ranges
------------------------------------------------------------------------
Category of license Annual fees
------------------------------------------------------------------------
Part 70--High enriched fuel facility.. $2,604,000
Part 70--Low enriched fuel facility... 1,278,000
Part 40--UF6 conversion facility...... 648,000
Part 40--Uranium recovery facilities.. 22,300 to 61,700
Part 30--Byproduct Material Licenses.. 490 to $23,500 1
Part 71--Transportation of Radioactive 1,000 to $78,800
Material.
Part 72--Independent Storage of Spent 283,000
Nuclear Fuel.
------------------------------------------------------------------------
\1\ Excludes the annual fee for a few military ``master'' materials
licenses of broad-scope issued to Government agencies, which is
$421,000.
Footnote 1 of 10 CFR 171.16(d) is amended to provide a waiver of
the annual fees for 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, 1997, and permanently ceased licensed
activities entirely by September 30, 1997. All other licensees and
approval holders who held a license or approval on October 1, 1997, are
subject to the FY 1998 annual fees.
Holders of new licenses issued during FY 1998 are subject to a
prorated annual fee in accordance with the current proration provision
of Sec. 171.17. For example, those new materials licenses issued during
the period October 1 through March 31 of the fiscal year will be
assessed one-half the annual fee in effect on the anniversary date of
the license. New materials licenses issued on or after April 1, 1998,
will not be assessed an annual fee for FY 1998. Thereafter, the full
annual fee is due and payable each subsequent fiscal year on the
anniversary date of the license. Beginning June 11, 1996, (the
effective date of the FY 1996 final rule), affected materials licensees
are subject to the annual fee in effect on the anniversary date of the
license. The anniversary date of the materials license for annual fee
purposes is the first day of the month in which the original license
was issued.
Section 171.19 Payment
Paragraph (a) is revised to provide additional methods of payment
and to clarify that payments must be made in U.S. funds.
Paragraph (b) is revised to give credit for partial payments made
by certain licensees in FY 1998 toward their FY 1998 annual fees. The
NRC anticipates that the first, second, and third quarterly payments
for FY 1998 will have been made by operating power reactor licensees
and some large materials licensees before the final rule becomes
effective. Therefore, the NRC will credit payments received for those
quarterly annual fee assessments toward the total annual fee to be
assessed. The NRC will adjust the fourth quarterly invoice to
[[Page 31849]]
recover the full amount of the revised annual fee or to make refunds,
as necessary. Payment of the annual fee is due on the date of the
invoice and interest accrues from the invoice date. However, interest
will be waived if payment is received within 30 days from the invoice
date.
Paragraphs (c) and (d) are revised to delete specific fiscal year
references.
As in FY 1997, the NRC will continue to bill annual fees for most
materials licenses on the anniversary date of the license (licensees
whose annual fees are $100,000 or more will continue to be assessed
quarterly). The annual fee assessed will be the fee in effect on the
license anniversary date. This rule applies to those materials licenses
in the following fee categories: 1.C. and 1.D; 2.A. (2) through 2.C.;
3.A. through 3.P.; 4.A. through 9.D., and 10.B. For annual fee
purposes, the anniversary date of the materials license is considered
to be the first day of the month in which the original materials
license was issued. For example, if the original materials license was
issued on June 17 then, for annual fee purposes, the anniversary date
of the materials license is June 1 and the licensee will continue to be
billed in June of each year for the annual fee in effect on June 1.
Materials licensees with anniversary dates in FY 1998 before the
effective date of the FY 1998 final rule will be billed during the
anniversary month of the license and continue to pay annual fees at the
FY 1997 rate in FY 1998. Those materials licensees with license
anniversary dates falling on or after the effective date of the FY 1998
final rule will be billed, at the FY 1998 revised rates, during the
anniversary month of their license and payment will be due on the date
of the invoice.
During the past seven 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 either
not using the material to conduct operations or had disposed of the
material and no longer needed the license. In response, the NRC has
consistently 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. By its very
nature, this regulatory action does not affect the environment, and
therefore, no environmental justice issues are raised.
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 1995 (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) that required 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 FY 1998. To accomplish
this statutory requirement, the NRC, in accordance with Sec. 171.13, is
publishing the final amount of the FY 1998 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 1998 budget of
$472.8 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 and the general fund related to commercial vitrification
of waste at the Department of Energy Hanford, Washington, site and the
pilot program pertaining to external regulation of the Department of
Energy;
(2) The annual fees shall, to the maximum extent practicable, have
a reasonable relationship to the cost of
[[Page 31850]]
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.
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).
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 1998. The final
rule results in a slight decrease in the annual fees charged to some
licensees, and holders of certificates, registrations, and approvals.
The Regulatory Flexibility Analysis, prepared in accordance with 5
U.S.C. 604, is included as Appendix A to this final rule. The Small
Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) was
signed into law on March 29, 1996. The SBREFA requires all Federal
agencies to prepare a written compliance guide for each rule for which
the agency is required by 5 U.S.C. 604 to prepare a regulatory
flexibility analysis. Therefore, in compliance with the law, Attachment
1 to the Regulatory Flexibility Analysis (Appendix A to this document)
is the small entity compliance guide for FY 1998.
IX. Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this final rule; and therefore, a backfit analysis is not
required for this final rule because these amendments do not involve
any provisions that would impose backfits as defined in 10 CFR Chapter
I.
X. Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996 the NRC has determined that this action is a major
rule and has verified this determination with the Office of Information
and Regulatory Affairs of the Office of Management and Budget.
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Environmental protection, Nuclear
materials, Nuclear power plants and reactors, Penalties, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
10 CFR Part 140
Criminal penalties, Extraordinary nuclear occurrence, Insurance,
Intergovernmental relations, Nuclear materials, Nuclear power plants
and reactors, Penalties, Reporting and recordkeeping requirements.
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 2, 140,
170 and 171.
PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND
ISSUANCE OF ORDERS
1. The authority citation for Part 2 continues to read as follows:
Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42
U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.
409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.
5841); 5 U.S.C. 552.
Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,
105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42
U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub.
L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102,
Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301,
88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105,
2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat.
936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,
2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-415,
96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued
under secs. 161 b, I, o, 182, 186, 234, 68 Stat. 948-951, 955, 83,
Stat. 444, as amended (42 U.S.C. 2201 (b), (I), (o), 2236, 2282);
sec. 206, 88 Stat. 1246 (42 U.S.C. 5846). Section 2.205(j) also
issued under Pub. L. 101-410, 104 Stat. 890, as amended by section
31001(s), Pub. L. 104-134, 110 Stat. 1321-373 (28 U.S.C. 2461 note).
Sections 2.600-2.606 also issued under sec. 102, Pub. L. 91-190, 83
Stat. 853, as amended (42 U.S.C. 4332). Sections 2.700a, 2.719 also
issued under 5 U.S.C. 554. Sections 2.754, 2.760, 2.770, 2.780 also
issued under 5 U.S.C. 557. Section 2.764 also issued under secs.
135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 10155,
10161). Section 2.790 also issued under sec. 103, 68 Stat. 936, as
amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections 2.800 and 2.808
also issued under 5 U.S.C. 553. Section 2.809 also issued under 5
U.S.C. 553 and sec. 29, Pub. L. 85-256, 71 Stat. 579, as amended (42
U.S.C. 2039). Subpart K also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239); sec. 134, Pub. L. 97-425, 96 Stat. 2230 (42 U.S.C.
10154). Subpart L also issued under sec. 189, 68 Stat. 955 (42
U.S.C. 2239). Appendix A also issued under sec. 6, Pub. L. 91-560,
84 Stat. 1473 (42 U.S.C. 2135).
2. In Sec. 2.205, paragraph (i) is revised to read as follows:
Sec. 2.205 Civil penalties.
* * * * *
(i) Except when payment is made after compromise or mitigation by
the Department of Justice or as ordered by a court of the United
States, following reference of the matter to the Attorney General for
collection, payment of civil penalties imposed under Section 234 of the
Act are to be made payable to the U.S. Nuclear Regulatory Commission,
in U.S. funds, by check, draft, money order, credit card, or electronic
funds transfer such as Automated Clearing House (ACH) using Electronic
Data Interchange (EDI). Federal agencies may also make payment by the
On-Line Payment and Collections System (OPAC's). All payments are to be
made in accordance with the specific payment instructions provided with
Notices of Violation that propose civil penalties and Orders Imposing
Civil Monetary Penalties.
* * * * *
PART 140--FINANCIAL PROTECTION REQUIREMENTS AND INDEMNITY
AGREEMENTS
3. The authority citation for Part 140 continues to read as
follows:
Authority: Secs. 161, 170, 68 Stat. 948, 71 Stat. 576, as
amended (42 U.S.C. 2201, 2210); secs. 201, as amended, 202, 88 Stat.
1242, as amended, 1244 (42 U.S.C. 5841, 5842).
[[Page 31851]]
4. In Sec. 140.7, paragraphs (a) and (c) are revised and paragraph
(d) is added to read as follows:
Sec. 140.7 Fees.
(a)(1) Each reactor licensee shall pay a fee to the Commission
based on the following schedule:
(i) For indemnification from $500 million to $400 million
inclusive, a fee of $30 per year per thousand kilowatts of thermal
capacity authorized in the license;
(ii) For indemnification from $399 million to $300 million
inclusive, a fee of $24 per year per thousand kilowatts of thermal
capacity authorized in the license;
(iii) For indemnification from $299 million to $200 million
inclusive, a fee of $18 per year per thousand kilowatts of thermal
capacity authorized in the license;
(iv) For indemnification from $199 million to $100 million
inclusive, a fee of $12 per year per thousand kilowatts of thermal
capacity authorized in the license; and
(v) For indemnification from $99 million to $1 million inclusive, a
fee of $6 per year per thousand kilowatts of thermal capacity
authorized in the license.
(2) No fee will be less than $100 per annum for any nuclear
reactor. This fee is for the period beginning with the date on which
the applicable indemnity agreement is effective. The various levels of
indemnity fees are set forth in the schedule in this paragraph. The
amount of indemnification for determining indemnity fees will be
computed by subtracting from the statutory limit of liability the
amount of financial protection required of the licensee. In the case of
licensees subject to the provision of Sec. 140.11(a)(4), this total
amount will be the amount, as determined by the Commission, of the
financial protection available to licensees at the close of the
calendar year preceding the one in which the fee becomes due. For those
instances in which a certified financial statement is provided as a
guarantee of payment of deferred premiums in accordance with
Sec. 140.21(e), a fee of $1,000 or the indemnity fee, whichever is
greater, is required.
* * * * *
(c) Each person licensed to possess and use plutonium in a
plutonium processing and fuel fabrication plant shall pay to the
Commission a fee of $5,000 per year for indemnification. This fee is
for the period beginning with the date on which the applicable
indemnity agreement is effective.
(d) Indemnity fee payments, made payable to the U.S. Nuclear
Regulatory Commission, are to be made in U.S. funds by check, draft,
money order, credit card, or electronic funds transfer such as ACH
(Automated Clearing House) using EDI (Electronic Data Interchange).
Federal agencies may also make payments by the On-Line Payment and
Collections System (OPAC's). Where specific payment instructions are
provided on the invoices, payment should be made accordingly, e.g.
invoices of $5,000 or more should be paid via ACH through NRC's Lockbox
Bank at the address indicated on the invoice. Credit card payments
should be made up to the limit established by the credit card bank, in
accordance with specific instructions provided with the invoices, to
the Lockbox Bank designated for credit card payments.
PART 170--FEES FOR FACILITIES, MATERIALS, IMPORT AND EXPORT
LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT
OF 1954, AS AMENDED
5. The authority citation for Part 170 continues to read as
follows:
Authority: 31 U.S.C. 9701, sec. 301, Pub. L. 92-314, 86 Stat.
222 (42 U.S.C. 2201w); sec. 201, 88 Stat. 1242, as amended (42
U.S.C. 5841); sec. 205, Pub. L. 101-576, 104 Stat. 2842, (31 U.S.C.
901).
6. In Section 170.12, paragraphs (g) and (h) are revised to read as
follows:
Sec. 170.12 Payment of fees.
* * * * *
(g) Inspection fees. (1) Inspection fees will be assessed to
recover full cost for each resident inspector assigned to a specific
plant or facility. The fees will be assessed for all of the resident
inspectors' time, excluding leave and time spent by a resident
inspector in support of activities at another site. The hours will be
billed at the appropriate hourly rate established in Sec. 170.20.
(2) Fees for all inspections subject to full cost recovery will be
assessed on a per inspection basis for costs incurred up to
approximately 30 days after issuance of the inspection report.
Inspection costs include preparation time, time on site, documentation
time, and follow-up activities and any associated contractual service
costs, but exclude the time involved in the processing and issuance of
a notice of violation or civil penalty.
(3) Fees for resident inspectors' time and for specific inspections
subject to full cost recovery will be billed on a quarterly basis and
are payable upon notification by the Commission.
(h) Method of payment. All license fee payments, made payable to
the U.S. Nuclear Regulatory Commission, are to be made in U.S. funds by
check, draft, money order, credit card, or electronic funds transfer
such as ACH (Automated Clearing House) using EDI (Electronic Data
Interchange). Payment of invoices of $5,000 or more should be paid via
ACH through NRC's Lockbox Bank at the address indicated on the invoice.
Credit card payments should be made up to the limit established by the
credit card bank at the address indicated on the invoice. Applicants
and licensees should contact the License Fee and Accounts Receivable
Branch at 301-415-7554 to obtain specific written instructions for
making electronic payments and credit card payments.
* * * * *
7. 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 the following applicable professional staff-
hour rates:
Reactor Program (Sec. 170.21 $124 per hour.
Activities).
Nuclear Materials and Nuclear Waste $121 per hour.
Program (Sec. 170.31 Activities).
8. In Sec. 170.21, the introductory text, Category K in the table,
and footnotes 1 and 2 to the table are revised 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:
[[Page 31852]]
Schedule of Facility Fees
[See footnotes at end of table]
------------------------------------------------------------------------
Facility categories and type of fees Fees \1\ \2\
------------------------------------------------------------------------
* * * *
* * *
K. Import and export licenses:
Licenses for the import and export only of
production and utilization facilities or the 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 exports of components
which must be reviewed by the Commissioners and
the Executive Branch, for example, actions
under 10 CFR 110.40(b).
Application-new license..................... $7,900
Amendment................................... $7,900
2. Application for export of reactor and other
components requiring Executive Branch review
only, for example, those actions under 10 CFR
110.41(a)(1)-(8).
Application--new license.................... $4,800
Amendment................................... $4,800
3. Application for export of components
requiring foreign government assurances only.
Application--new license.................... $2,800
Amendment................................... $2,800
4. Application for export of facility components
and equipment not requiring Commissioner
review, Executive Branch review, or foreign
government assurances.
Application--new license.................... $1,200
Amendment................................... $1,200
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 in-depth analysis or
review.
Amendment................................... $180
------------------------------------------------------------------------
\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
the final rule will be determined at the professional rates in effect
at the time the service was provided. 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.
* * * * *
9. 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............... $560.
Amendment.............................. $380.
[[Page 31853]]
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............... $750.
Amendment.............................. $290.
E. Licenses or certificates for
construction and operation of a uranium
enrichment facility.
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.
(2) Licenses that authorize the receipt of
byproduct material, as defined in Section
11e(2) of the Atomic Energy Act, from
other persons for possession and disposal
except those licenses subject to fees in
Category 2.A.(1).
License, renewal, amendment............ Full Cost.
Inspections............................ Full Cost.
(3) Licenses that authorize the receipt of
byproduct material, as defined in Section
11e(2) of the Atomic Energy Act, from
other persons 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 the possession,
use and/or installation of source material
for shielding:
Application--New license............... $120.
Amendment.............................. $280.
C. All other source material licenses:
Application--New license............... $3,600.
Amendment.............................. $560.
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............... $3,800.
Amendment.............................. $530.
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............... $1,500.
Amendment.............................. $560.
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 does not apply to licenses
issued to nonprofit educational
institutions whose processing or
manufacturing is exempt under Sec.
170.11(a)(4). These licenses are covered
by fee Category 3D.
Application--New license............... $6,800.
Amendment.............................. $630.
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. This category includes
licenses issued pursuant to Secs. 32.72,
32.73, and/or 32.74 of this chapter to
nonprofit educational institutions whose
processing or manufacturing is exempt
under Sec. 170.11(a)(4).
Application--New license............... $1,900.
Amendment.............................. $420.
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............... $1,100.
Amendment.............................. $380.
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............... $1,900.
Amendment.............................. $440.
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............... $4,500.
Amendment.............................. $740.
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............... $2,700.
[[Page 31854]]
Amendment.............................. $1,000.
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............... $4,400.
Amendment.............................. $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............... $1,700.
Amendment.............................. $300.
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............... $1,000.
Amendment.............................. $340.
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............... $5,400.
Amendment.............................. $760.
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............... $1,800.
Amendment.............................. $620.
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, and 4C:
Application--New license............... $2,000.
Amendment.............................. $500.
O. Licenses for possession and use of
byproduct material issued pursuant to Part
34 of this chapter for industrial
radiography operations:
Application--New license............... $4,300.
Amendment.............................. $680.
P. All other specific byproduct material
licenses, except those in Categories 4A
through 9D:
Application--New license............... $730.
Amendment.............................. $340.
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............... $2,500.
Amendment.............................. $520.
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............... $2,200.
Amendment.............................. $220.
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............... $3,400.
Amendment.............................. $820.
B. Licenses for possession and use of
byproduct material for field flooding
tracer studies:
License, renewal, amendment............ Full Cost.
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............... $6,400.
Amendment.............................. $1,000.
7. Medical licenses:
[[Page 31855]]
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............... $3,500.
Amendment.............................. $390.
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............... $3,800.
Amendment.............................. $710.
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............... $1,800.
Amendment.............................. $450.
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............... $570.
Amendment.............................. $400.
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............... $3,600.
Amendment--each device................. $590.
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............... $2,100.
Amendment--each device................. $1,100.
C. Safety evaluation of sealed sources
containing byproduct material, source
material, or special nuclear material,
except reactor fuel, for commercial
distribution:
Application--each source............... $910.
Amendment--each source................. $610.
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............... $460.
Amendment--each source................. $160.
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.................. $340.
Amendment.............................. $620.
Inspections............................ Full Cost.
11. Review of standardized spent fuel
facilities:
Approval, renewal, amendment........... Full Cost.
Inspections............................ Full Cost.
12. Special projects: \5\
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 Full Cost.
storage 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 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 Part 110 of
this chapter for the import and export
only of special nuclear material, source
material, tritium and other byproduct
material, heavy water, or nuclear grade
graphite.
A. Application for export or import of
high enriched uranium and other
materials, including radioactive
waste, which must be reviewed by the
Commissioners and the Executive
Branch, for example, those actions
under 10 CFR 110.40(b). This category
includes application for export or
import of radioactive wastes in
multiple forms from multiple
generators or brokers in the exporting
country and/or going to multiple
treatment, storage or disposal
facilities in one or more receiving
countries.
Application-new license............ $7,900.
Amendment.......................... $7,900.
[[Page 31856]]
B. Application for export or import of
special nuclear material, source
material, tritium and other byproduct
material, heavy water, or nuclear
grade graphite, including radioactive
waste, requiring Executive Branch
review but not Commissioner review.
This category includes application for
the export or import of radioactive
waste involving a single form of waste
from a single class of generator in
the exporting country to a single
treatment, storage and/or disposal
facility in the receiving country.
Application-new license............ $4,800.
Amendment.......................... $4,800.
C. Application for export of routine
reloads of low enriched uranium
reactor fuel and exports of source
material requiring only foreign
government assurances under the Atomic
Energy Act.
Application-new license............ $2,800.
Amendment.......................... $2,800.
D. Application for export or import of
other materials, including radioactive
waste, not requiring Commissioner
review, Executive Branch review, or
foreign government assurances under
the Atomic Energy Act. This category
includes application for export or
import of radioactive waste where the
NRC has previously authorized the
export or import of the same form of
waste to or from the same or similar
parties, requiring only confirmation
from the receiving facility and
licensing authorities that the
shipments may proceed according to
previously agreed understandings and
procedures.
Application-new license............ $1,200.
Amendment.......................... $1,200.
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 in-depth
analysis, review, or consultations
with other agencies or foreign
governments.
Amendment.......................... $180.
16. Reciprocity:
Agreement State licensees who conduct
activities under the reciprocity
provisions of 10 CFR 150.20.
Application (initial filing of Form $1,100.
241).
Revisions.............................. $200.
------------------------------------------------------------------------
\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 certain renewals to existing licenses and
approvals, safety evaluations of sealed sources and devices, and
certain 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
costs, 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.
(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 subject to Full Cost.fees (fee
Categories 1A, 1B, 1E, 2A, 4A, 5B, 10A, 11, 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. Inspections resulting from investigations conducted
by the Office of Investigations and nonroutine inspections that result
from third-party allegations are not subject to fees. Inspection fees
are due upon notification by the Commission in accordance with Sec.
170.12(g).
\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
the final rule will be determined at the professional rates in effect
at the time the service was provided. 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 that cover both byproduct
material and special nuclear material in sealed sources for use in
gauging devices will pay the appropriate application fee for fee
Category 1C only.
\5\ Fees will not be assessed for requests/reports submitted to the NRC:
[[Page 31857]]
(a) 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;
(b) 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
(c) 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 NRC
10. 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, as amended by sec.
3201, Pub. L. 101-239, 103 Stat. 2106 as amended by sec. 6101, Pub.
L. 101-508, 104 Stat. 1388, (42 U.S.C. 2213); sec. 301, Pub. L. 92-
314, 86 Stat. 222 (42 U.S.C. 2201(w)); sec. 201, 88 Stat. 1242, as
amended (42 U.S.C. 5841); sec. 2903, Pub. L. 102-486, 106 Stat.
3125, (42 U.S.C. 2214 note).
11. Section 171.13 is revised to read as follows:
Sec. 171.13 Notice.
The annual fees applicable to an operating reactor and to a
materials licensee, including a Government agency licensed by the NRC,
subject to this part and calculated in accordance with Secs. 171.15 and
171.16, will be published as a notice in the Federal Register as soon
as is practicable but no later than the third quarter of the fiscal
year. The annual fees will become due and payable to the NRC in
accordance with Sec. 171.19 except as provided in Sec. 171.17.
Quarterly payments of the annual fees of $100,000 or more will continue
during the fiscal year and be based on the applicable annual fees as
shown in Secs. 171.15 and 171.16 until a notice concerning the revised
amount of the fees for the fiscal year is published by the NRC. If the
NRC is unable to publish a final fee rule that becomes effective during
the current fiscal year, then fees would be assessed based on the rates
in effect for the previous fiscal year.
12. In Sec. 171.15, paragraphs (b), (c) introductory text, (c)(1),
(c)(2), (e), and (f) are revised to read as follows:
Sec. 171.15 Annual Fees: Reactor operating licenses.
* * * * *
(b) The FY 1998 annual fee for each operating power reactor which
must be collected by September 30, 1998, is $2,976,000. This fee has
been determined by adjusting the FY 1997 annual fee, (prior to
rounding) downward by about 0.1 percent. In the FY 1995 final rule, the
NRC stated it would stabilize annual fees by adjusting the annual fees
only by the percentage change (plus or minus) in NRC's total budget
authority and adjustments based on changes in 10 CFR Part 170 fees as
well as on the number of licensees paying the fees. The first
adjustment to the annual fees using this method occurred in FY 1996
when all annual fees were decreased 6.5 percent below the FY 1995
annual fees. The FY 1997 annual fees were also determined by using this
method. The FY 1997 annual fees increased 8.4 percent above the FY 1996
annual fees. The FY 1995 annual fee was comprised of a base annual fee
and an additional charge (surcharge). The activities comprising the
base FY 1995 annual fee are as follows:
(1) Power reactor safety and safeguards regulation except licensing
and inspection activities recovered under Part 170 of this chapter.
(2) Research activities directly related to the regulation of power
reactors.
(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.
(c) The activities comprising the FY 1995 surcharge are as follows:
(1) Activities not attributable to an existing NRC licensee or
class of licensees; e.g., reviews submitted by other government
agencies (e.g., DOE) that do not result in a license or are not
associated with a license; international cooperative safety program and
international safeguards activities; low-level waste disposal generic
activities; uranium enrichment generic activities.
(2) Activities not currently assessed under 10 CFR Part 170
licensing and inspection fees based on existing Commission policy,
e.g., reviews and inspections conducted of nonprofit educational
institutions, and costs that would not be collected from small entities
based on Commission policy in accordance with the Regulatory
Flexibility Act.
* * * * *
(e) The FY 1998 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........................................... $57,300
Test reactor............................................... $57,300
(f) For each fiscal year, annual fees for operating reactors will
be calculated and assessed in accordance with Sec. 171.13.
13. In Sec. 171.16, the introductory text and table of paragraph
(c) and paragraphs (c)(1), (c)(4), (d), and (e) are revised to read as
follows:
Sec. 171.16 Annual Fees: Material 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 1998 as follows:
------------------------------------------------------------------------
Maximum
annual fee
per
licensed
category
------------------------------------------------------------------------
Small Businesses Not Engaged in Manufacturing and Small Not-
For-Profit Organizations (Gross Annual Receipts):
$350,000 to $5 million................................. $1,800
Less than $350,000..................................... 400
Manufacturing entities that have an average of 500
employees or less:
35 to 500 employees.................................... 1,800
Less than 35 employees................................. 400
Small Governmental Jurisdictions (Including publicly
supported educational institutions) (Population):
[[Page 31858]]
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:
35 to 500 employees.................................... 1,800
Less than 35 employees................................. 400
------------------------------------------------------------------------
(1) A licensee qualifies as a small entity if it meets the size
standards established by the NRC (See 10 CFR 2.810).
* * * * *
(4) For FY 1998, the maximum annual fee a small entity is required
to pay is $1,800 for each category applicable to the license(s).
(d) The FY 1998 annual fees for materials licensees and holders of
certificates, registrations or approvals subject to fees under this
section are shown below. The FY 1998 annual fees, which must be
collected by September 30, 1998, have been determined by adjusting
downward the FY 1997 exact annual fees (prior to rounding), by about
0.1 percent. As a result of rounding, the FY 1998 annual fee for some
fee categories is the same as the FY 1997 annual fee. In the FY 1995
final rule, the NRC stated it would stabilize annual fees by adjusting
the annual fees only by the percentage change (plus or minus) in NRC's
total budget authority and adjustments based on changes in 10 CFR Part
170 fees as well as on the number of licensees paying the fees. The
first adjustment to the annual fees using this method occurred in FY
1996, when all annual fees were decreased 6.5 percent below the FY 1995
annual fees. The FY 1997 annual fees were also determined by using this
method. The FY 1997 annual fees were increased 8.4 percent above the FY
1996 annual fees. The FY 1995 annual fee was comprised of a base annual
fee and an additional charge (surcharge). The activities comprising the
FY 1995 surcharge are shown for convenience in paragraph (e) of this
section.
Schedule of Materials Annual Fees and Fees for Government Agencies
Licensed by NRC
[See footnotes at end of table]
------------------------------------------------------------------------
Annual Fees 1,
Category of materials licenses 2, 3
------------------------------------------------------------------------
1. Special nuclear material:
A. (1) Licenses for possession and use of U-235 or
plutonium for fuel fabrication activities.
(a) Strategic Special Nuclear Material:
Babcock & Wilcox SNM-42..................... $2,604,000
Nuclear Fuel Services SNM-124............... 2,604,000
(b) Low Enriched Uranium in Dispersible Form
Used for Fabrication of Power Reactor Fuel:
Combustion Engineering (Hematite) SNM-33.... 1,278,000
General Electric Company SNM-1097........... 1,278,000
Siemens Nuclear Power SNM-1227.............. 1,278,000
Westinghouse Electric Company SNM-1107...... 1,278,000
(2) All other special nuclear materials licenses not
included in Category 1.A.(1) which are licensed for
fuel cycle activities.
(a) Facilities with limited operations:
B&W Fuel Company SNM-1168................... 508,000
(b) All Others:
General Electric SNM-960.................... 345,000
B. Licenses for receipt and storage of spent fuel at
an independent spent fuel storage installation
(ISFSI)............................................ 283,000
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............. 1,300
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) ........................................... 3,100
E. Licenses or certificates for the operation of a
uranium enrichment facility........................ 2,604,000
2. Source material:
A. (1) Licenses for possession and use of source
material for refining uranium mill concentrates to
uranium hexafluoride............................... 648,000
(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\.......................... 61,700
Class II facilities \4\......................... 34,900
Other facilities \4\............................ 22,300
(3) Licenses that authorize the receipt of byproduct
material, as defined in Section 11e.(2) of the
Atomic Energy Act, from other persons for
possession and disposal, except those licenses
subject to the fees in Category 2.A.(2) orCategory
2.A.(4)............................................ 45,300
(4) Licenses that authorize the receipt of byproduct
material, as defined in Section 11e.(2) of the
Atomic Energy Act, from other persons 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)... 8,000
B. Licenses which authorize only the possession, use
and/or installation of source material for
shielding.......................................... 490
C. All other source material licenses............... 8,700
[[Page 31859]]
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............................ 16,600
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....................................... 5,600
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. This category does
not apply to licenses issued to nonprofit
educational institutions whose processing or
manufacturing is exempt under Sec. 171.11(a)(1).
These licenses are covered by fee Category 3D...... 11,200
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. This category includes licenses
issued pursuant to Secs. 32.72, 32.73 and 32.74 of
this chapter to nonprofit educational institutions
whose processing or manufacturing is exempt under
Sec. 171.11(a)(1). 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....................... 4,400
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)................... 3,200
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 in which the source is not
exposed for irradiation purposes................... 3,800
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................... 19,700
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............................................ 5,000
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.................................... 8,900
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... 3,800
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............. 3,200
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...... 12,300
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.............. 5,500
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, and 4C 6,100
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....................................... 14,000
P. All other specific byproduct material licenses,
except those in Categories 4A through 9D........... 1,700
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\ 102,000
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............................ 14,500
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......................... 7,700
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... 8,200
B. Licenses for possession and use of byproduct
material for field flooding tracer studies......... 13,200
[[Page 31860]]
6. Nuclear laundries:
A. Licenses for commercial collection and laundry of
items contaminated with byproduct material, source
material, or special nuclear material.............. 14,700
7. Medical licenses:
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..................... 10,300
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. This category also includes
the possession and use of source material for
shielding when authorized on the same license.\9\.. 23,500
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\................. 4,700
8. Civil defense:
A. Licenses for possession and use of byproduct
material, source material, or special nuclear
material for civil defense activities.............. 1,800
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....................................... 7,200
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............. 3,700
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... 1,600
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..................... 780
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........................... 78,800
Users........................................... 1,000
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...................................... 283,000
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 broadscope issued to
Government agencies.................................... 421,000
18. Department of Energy:
A. Certificates of Compliance....................... \10\ $1,168,00
0
B. Uranium Mill Tailing Radiation Control Act
(UMTRCA) activities................................ 1,964,000
------------------------------------------------------------------------
\1\ Annual fees will be assessed based on whether a licensee held a
valid license with the NRC authorizing possession and use of
radioactive material during the fiscal year. 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, 1997, and permanently ceased licensed activities
entirely by September 30, 1997. Annual fees for licensees who filed
for termination of a license, downgrade 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.
\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\ Each fiscal year, 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 were issued by NRC for land disposal of special nuclear
material. Once NRC issues an 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, 10 CFR Parts 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.
[[Page 31861]]
\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.
(e) The activities comprising the FY 1995 surcharge are as follows:
(1) LLW disposal generic activities;
(2) Activities not attributable to an existing NRC licensee or
classes of licensees; e.g., international cooperative safety program
and international safeguards activities; support for the Agreement
State program; site decommissioning management plan (SDMP) activities;
and
(3) Activities not currently assessed licensing and inspection fees
under 10 CFR Part 170 based on existing law or Commission policy, e.g.,
reviews and inspections conducted of nonprofit educational institutions
and Federal agencies; activities related to decommissioning and
reclamation and costs that would not be collected from small entities
based on Commission policy in accordance with the Regulatory
Flexibility Act.
* * * * *
14. Section 171.19 is revised to read as follows:
Sec. 171.19 Payment.
(a) Method of payment. Annual fee payments, made payable to the
U.S. Nuclear Regulatory Commission, are to be made in U.S. funds by
check, draft, money order, credit card, or electronic funds transfer
such as ACH (Automated Clearing House) using EDI (Electronic Data
Interchange). Federal agencies may also make payment by the On-line
Payment and Collection System (OPAC's). Where specific payment
instructions are provided on the invoices to applicants and licensees,
payment should be made accordingly, e.g. invoices of $5,000 or more
should be paid via ACH through NRC's Lockbox Bank at the address
indicated on the invoice. Credit card payments should be made up to the
limit established by the credit card bank, in accordance with specific
instructions provided with the invoices, to the Lockbox Bank designated
for credit card payments.
(b) For FY 1998, the Commission will adjust the fourth quarterly
invoice 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 on the
anniversary date of the license. Payment is due on the invoice date and
interest accrues from the date of the invoice. However, interest will
be waived if payment is received within 30 days from the invoice date.
(c) 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.
(d) Annual fees of less than $100,000 must be paid as billed by the
NRC. As established in FY 1996, materials license annual fees that are
less than $100,000 are billed on the anniversary date of the license.
The materials licensees that are billed on the anniversary date of the
license are those covered by fee categories 1.C. and 1.D.; 2.A.(2)
through 2.C.; 3.A. through 3.P.; 4.B. through 9.D.; and 10.B. For
annual fee purposes, the anniversary date of the license is considered
to be the first day of the month in which the original license was
issued by the NRC. Beginning June 11, 1996, the effective date of the
FY 1996 final rule, licensees that are billed on the license
anniversary date will be assessed the annual fee in effect on the
anniversary date of the license. Materials licenses subject to the
annual fee that are terminated during the fiscal year but prior to the
anniversary month of the license will be billed upon termination for
the fee in effect at the time of the billing. New materials licenses
subject to the annual fee will be billed in the month the license is
issued or in the next available monthly billing for the fee in effect
on the anniversary date of the license. Thereafter, annual fees for new
licenses will be assessed in the anniversary month of the license.
Dated at Rockville, Maryland, this 22nd day of May, 1998.
For the Nuclear Regulatory Commission.
Jesse L. Funches,
Chief Financial Officer.
Note: The following appendix will not appear in the Code of
Federal Regulations.
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, as amended, (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 (RFA), first 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 on
November 6, 1991 (56 FR 56672). On April 7, 1994 (59 FR 16513), the
Small Business Administration (SBA) issued a final rule changing its
size standards. The SBA adjusted its receipts-based size standards
levels to mitigate the effects of inflation from 1984 to 1994. On
November 30, 1994 (59 FR 61293), the NRC published a proposed rule
to amend its size standards. After evaluating the two comments
received, a final rule that would revise the NRC's size standards as
proposed was developed and approved by the SBA on March 24, 1995.
The NRC published the final rule revising its size standards on
April 11, 1995 (60 FR 18344). The revised standards became effective
May 11, 1995. The revised standards adjusted the NRC receipts-based
size standards from $3.5 million to $5 million to accommodate
inflation and to conform to the SBA final rule. The NRC also
eliminated the separate $1 million size standard for private
practice physicians and applied a receipts-based size standard of $5
million to this class of licensees. This mirrored the revised SBA
standard of $5 million for medical practitioners. The NRC also
established a size standard of 500 or fewer employees for business
concerns that are manufacturing entities. This standard is the most
commonly used SBA employee standard and is the standard applicable
to the types of manufacturing industries that hold an NRC license.
The NRC used the revised standards in the final FY 1995, FY
1996, and FY 1997 fee rules and is continuing their use in this FY
1998 final rule. The small entity fee categories in Sec. 171.16(c)
of this final rule reflect the changes in the NRC's size standards
adopted in FY 1995. A new maximum small entity fee for manufacturing
industries with 35 to 500 employees was established at $1,800 and a
lower-tier small entity fee of $400 was established for those
manufacturing industries with less than 35 employees. The lower-tier
receipts-based threshold of $250,000 was raised to $350,000 to
reflect approximately the same percentage adjustment as that made by
the SBA when they adjusted the receipts-based standard from $3.5
million to $5 million. The NRC
[[Page 31862]]
believes that continuing these actions for FY 1998 will reduce the
impact of annual fees on small businesses. The NRC size standards
are codified at 10 CFR 2.810.
Public Law 101-508, the Omnibus Budget Reconciliation Act of
1990 (OBRA-90), required 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 for collection was about $445.3 million; for
FY 1992, about $492.5 million; for FY 1993 about $518.9 million; for
FY 1994 about $513 million; for FY 1995 about $503.6 million; for FY
1996 about $462.3 million; for FY 1997 about $462.3 million; and the
amount to be collected for FY 1998 is approximately $454.8 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), in FY 1993
(58 FR 38666; July 20, 1993), in FY 1994 (59 FR 36895; July 20,
1994), in FY 1995 (60 FR 32218; June 20, 1995), in FY 1996 (61 FR
16203; April 12, 1996), and in FY 1997 (62 FR 29194; May 29,1997)
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 FYs 1991-1997.
The NRC indicated in the FY 1995 final rule that it would
attempt to stabilize annual fees as follows. Beginning in FY 1996,
it would adjust the annual fees only by the percentage change (plus
or minus) in NRC's total budget authority unless there was a
substantial change in the total NRC budget authority or the
magnitude of the budget allocated to a specific class of licensees,
in which case the annual fee base would be recalculated (60 FR
32225; June 20, 1995). The NRC also indicated that the percentage
change would be adjusted based on changes in the 10 CFR Part 170
fees and other adjustments as well as an adjustment for the number
of licensees paying the fees. As a result, the NRC is establishing
the FY 1998 annual fees for all licensees at about 0.1 percent below
the FY 1997 exact (prior to rounding) annual fees. Based on this
small change, the FY 1998 annual fees (rounded) for many fee
categories are the same as the FY 1997 annual fees. Because there
has not been a substantial change in the NRC budget or in the
magnitude of a specific budget allocation to a class of licensees,
the NRC has continued to stabilize annual fees by following the same
method used for FY 1996 and FY 1997 to establish the FY 1998 annual
fees.
Public Law 104-121, the Contract with America Advancement Act of
1996, was signed into law on March 29, 1996. Title III of the law is
entitled the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA). The SBREFA has two purposes. The first is to reduce
regulatory burdens imposed by Federal agencies on small businesses,
nonprofit organizations and governmental jurisdictions. The second
is to provide the Congress with the opportunity to review agency
rules before they go into effect. Under this legislation, the NRC
fee rule, published annually, is considered a ``major'' rule and
therefore must be reviewed by Congress and the Comptroller General
before the rule becomes effective. Section 312 of the Act provides
that for each rule for which an agency prepared a final regulatory
flexibility analysis, the agency shall prepare a guide to assist
small entities in complying with the rule. The NRC's guide is
Attachment 1 to Appendix A of this final rule. A regulatory
flexibility analysis is prepared for the proposed and final NRC fee
rules as implemented by 10 CFR Part 170 and 171 of the Commission's
regulations. Therefore, in compliance with the law, Attachment 1 to
this Regulatory Flexibility Analysis is the small entity compliance
guide for FY 1998.
II. Impact on Small Entities
The comments received on the proposed FY 1991-1997 fee rule
revisions and the small entity certifications received in response
to the final FY 1991-1997 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, about 20 percent (approximately 1,400
licensees) have requested small entity certification in the past. 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 1991-1994 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.
Since FY 1991 when annual fees were first established,
approximately 3,000 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 commenters previously indicated
that the $3.5 million threshold for small entities was 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 following rules: FY 1991 (56 FR 31472; July 10,
1991), FY 1992 (57 FR 32691; July 23, 1992), FY 1993 (58 FR 38666;
July 20, 1993), FY 1994 (59 FR 36895; July 20, 1994), FY 1995 (60 FR
32218; June 20, 1995), FY 1996 (61 FR 16203; April 12, 1996), and FY
1997 (62 FR 29194; May 29, 1997). 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 1991-1997 evaluations of these
alternatives. Based on that reexamination, 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.
[[Page 31863]]
The NRC established, and will continue for FY 1998, 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
1998, the NRC will rely on the analysis previously completed that
established a maximum annual fee for a small entity and the amount
of costs that must be recovered from other NRC licensees as a result
of establishing the maximum annual fees.
The NRC continues to believe that the 10 CFR Part 170 license
fees (application and amendment), or any adjustments to these
licensing fees during the past year, do not have a significant
impact on small entities. In issuing this final rule for FY 1998,
the NRC concludes that the 10 CFR Part 170 materials license fees do
not have a significant impact on a substantial number of small
entities and that the 10 CFR Part 171 maximum annual small entity
fee of $1,800 be continued.
By maintaining the maximum annual fee for small entities at
$1,800, the annual fee for many small entities is reduced while at
the same time materials licensees, including small entities, pay for
most of the FY 1998 costs attributable to them. The costs not
recovered from small entities are allocated to other materials
licensees and to operating power reactors. However, the amount that
must be recovered from other licensees as a result of maintaining
the maximum annual fee is not expected to increase significantly.
Therefore, the NRC is continuing, for FY 1998, 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.
While reducing the impact on many small entities, the Commission
agrees that the maximum annual fee of $1,800 for small entities,
when added to the Part 170 license fees, may continue to have a
significant impact on materials licensees with annual gross receipts
in the thousands of dollars. Therefore, as in FY 1992-1997, the NRC
is continuing the lower-tier small entity annual fee of $400 for
small entities with relatively low gross annual receipts. The lower-
tier small entity fee of $400 also applies to manufacturing
concerns, and educational institutions not State or publicly
supported, with less than 35 employees. This lower-tier small entity
fee was first established in the final rule published in the Federal
Register on April 17, 1992 (57 FR 13625) and now includes
manufacturing companies with a relatively small number of employees.
III. Summary
The NRC has determined that the 10 CFR Part 171 annual fees
significantly impact 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 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 not-for-profit organizations with gross annual
receipts of less than $350,000, small governmental jurisdictions
with a population of less than 20,000, small manufacturing entities
that have less than 35 employees and educational institutions that
are not State or publicly supported and have less than 35 employees
reduces the impact on small entities. At the same time, these
reduced annual fees are consistent with the objectives of OBRA-90.
Thus, the fees for small entities maintain a balance between the
objectives of OBRA-90 and the RFA. Therefore, the analysis and
conclusions established in the FY 1991-1997 rules remain valid for
this final rule for FY 1998. In compliance with Public Law 104-121,
a small entity compliance guide has been prepared by NRC and is
shown as Attachment 1 to this Regulatory Flexibility Analysis.
Attachment 1 to Appendix A
U. S. Nuclear Regulatory Commission, Small Entity Compliance Guide,
Fiscal Year 1998
Contents
Introduction
NRC Definition of Small Entity
NRC Small Entity Fees
Instructions for Completing NRC Form 526
Introduction
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) requires all Federal agencies to prepare a written guide
for each ``major'' final rule as defined by the Act. The NRC's fee
rule, published annually to comply with the Omnibus Budget
Reconciliation Act of 1990 (OBRA-90) which requires the NRC to
collect approximately 100 percent of its budget authority each year
through fees, meets the thresholds for being considered a ``major''
rule under the SBREFA. Therefore, in compliance with the law, this
small entity compliance guide has been prepared for FY 1998. The
purpose of this guide is to assist small entities in complying with
the NRC fee rule.
This guide is designed to aid NRC materials licensees. The
information provided in this guide may be used by licensees to
determine whether they qualify as a small entity under NRC
regulations and are therefore eligible to pay reduced FY 1998 annual
fees assessed under 10 CFR Part 171. The NRC, in compliance with the
Regulatory Flexibility Act of 1980 (RFA), has established separate
annual fees for those materials licensees who meet the NRC's size
standards for small entities. These size standards, developed in
consultation with the Small Business Administration, were revised by
the NRC and became effective on May 11, 1995. The small entity size
standards are found at 10 CFR 2.810 of the NRC's regulations. To
comply with the RFA, the NRC has established two tiers of small-
entity fees. These fees are found at 10 CFR 171.16(c) of the NRC's
fee regulations.
Licensees who meet NRC's size standards for a small entity must
complete NRC Form 526 in order to qualify for the reduced annual
fee. NRC Form 526 will accompany each annual fee invoice mailed to
materials licensees. The completed form, along with the appropriate
small entity fee and the payment copy of the invoice, should be
mailed to the U.S. Nuclear Regulatory Commission, License Fee and
Accounts Receivable Branch, to the address indicated on the invoice.
NRC Definition of Small Entity
The NRC, in consultation with the Small Business Administration,
has defined a small entity for purposes of compliance with its
regulations. The definition is codified in NRC's regulations at 10
CFR 2.810. Under the NRC regulation, a small entity is a:
1. Small business--a for-profit concern that provides a service
or a concern not engaged in manufacturing with average gross
receipts of $5 million or less over its last 3 completed fiscal
years;
2. Manufacturing industry--a manufacturing concern with an
average number of 500 or fewer employees based upon employment
during each pay period for the preceding 12 calendar months;
3. Small organization--a not-for-profit organization which is
independently owned and operated and has annual gross receipts of $5
million or less;
4. Small governmental jurisdiction--a government of a city,
county, town, township, village, school district or special district
with a population of less than 50,000;
5. Small educational institution--an educational institution
supported by a qualifying small governmental jurisdiction, or one
that is not state or publicly supported and has 500 or fewer
employees.1
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\1\ An educational institution referred to in the size
standards is an entity whose primary function is education, whose
programs are accredited by a nationally recognized accrediting
agency or association, who is legally authorized to provide a
program of organized instruction or study, who provides an
educational program for which it awards academic degrees, and whose
educational programs are available to the public.
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NRC Small Entity Fees
The NRC has established two tiers of small-entity fees for
licensees that qualify under the NRC's size standards. Currently,
these fees are as follows:
[[Page 31864]]
------------------------------------------------------------------------
Maximum
annual fee
per
licensed
category
------------------------------------------------------------------------
Small Business Not Engaged in Manufacturing and Small Not-
For Profit Organizations (Gross Annual Receipts):
$350,000 to $5 million................................. $1,800
Less than $350,000..................................... 400
Manufacturing entities that have an average of 500
employees or less:
35 to 500 employees.................................... 1,800
Less than 35 employees................................. 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:
35 to 500 employees.................................... 1,800
Less than 35 employees................................. 400
------------------------------------------------------------------------
To pay a reduced annual fee, a licensee must use NRC Form 526,
enclosed with the fee invoice, to certify that it meets NRC's size
standards for a small entity. About 1,400 licensees certify each
year that they qualify as a small entity under the NRC size
standards and pay a reduced annual fee. Approximately 800 licensees
pay the small entity fee of 1,800 while 600 licensees pay the lower-
tier, small-entity fee of 400.
Instructions for Completing NRC Form 526
1. File a separate NRC Form 526 for each annual fee invoice
received.
2. Complete all items on NRC Form 526 as follows:
a. The license number and invoice number must be entered exactly
as they appear on the annual fee invoice.
b. The Standard Industrial Classification (SIC) Code should be
entered if it is known.
c. The licensee's name and address must be entered as they
appear on the invoice. Name and/or address changes for billing
purposes must be annotated on the invoice. Correcting the name and/
or address on NRC Form 526 or on the invoice does not constitute a
request to amend the license. Any request to amend a license is to
be submitted to the respective licensing staffs in the NRC Regional
or Headquarters Offices.
d. Check the appropriate size standard under which the licensee
qualifies as a small entity. Check one box only. Note the following:
(1) The size standards apply to the licensee, not the individual
authorized users listed in the license.
(2) Gross annual receipts as used in the size standards includes
all revenue in whatever form received or accrued from whatever
sources, not solely receipts from licensed activities. There are
limited exceptions as set forth at 13 CFR 121.104. These are: the
term receipts excludes net capital gains or losses, taxes collected
for and remitted to a taxing authority if included in gross or total
income, proceeds from the transactions between a concern and its
domestic or foreign affiliates (if also excluded from gross or total
income on a consolidated return filed with the IRS), and amounts
collected for another by a travel agent, real estate agent,
advertising agent, or conference management service provider.
(3) A licensee who is a subsidiary of a large entity does not
qualify as a small entity.
(4) The owner of the entity, or an official empowered to act on
behalf of the entity, must sign and date the small entity
certification.
3. The NRC sends invoices to its licensees for the full annual
fee, even though some entities qualify for reduced fees as a small
entity. Licensees who qualify as a small entity and file NRC Form
526, which certifies eligibility for small entity fees, may pay the
reduced fee, which for a full year is either $1,800 or $400
depending on the size of the entity, for each fee category shown on
the invoice. Licensees granted a license during the first six months
of the fiscal year and licensees who file for termination or for a
possession only license and permanently cease licensed activities
during the first six months of the fiscal year pay only 50 percent
of the annual fee for that year. Such an invoice states the ``Amount
Billed Represents 50% Proration.'' This means the amount due from a
small entity is not the prorated amount shown on the invoice but
rather one-half of the maximum annual fee shown on NRC Form 526 for
the size standard under which the licensee qualifies, resulting in a
fee of either $900 or $200 for each fee category billed instead of
the full small entity annual fee of $1,800 or $400.
4. A new small entity form (NRC Form 526) is required to be
filed with the NRC each fiscal year in order to qualify for reduced
fees for that fiscal year. Because a licensee's ``size,'' or the
size standards, may change from year to year, the invoice reflects
the full fee and a new Form must be completed and returned for the
fee to be reduced to the small entity fee. LICENSEES WILL NOT BE
ISSUED A NEW INVOICE FOR THE REDUCED AMOUNT. The completed NRC Form
526, the payment of the appropriate small entity fee, and the
``Payment Copy `` of the invoice should be mailed to the U. S.
Nuclear Regulatory Commission, License Fee and Accounts Receivable
Branch at the address indicated on the invoice.
5. Questions regarding fee invoices may be posed orally or in
writing. Please call the license fee staff at 301-415-7554 or write
to the U.S. Nuclear Regulatory Commission, Washington, DC 20555,
Attention: Office of the Chief Financial Officer.
6. False certification of small entity status could result in
civil sanctions being imposed by the NRC pursuant to the Program
Fraud Civil Remedies Act, 31 U.S.C. 3801 et. seq. NRC's implementing
regulations are found at 10 CFR Part 13.
[FR Doc. 98-15140 Filed 6-9-98; 8:45 am]
BILLING CODE 7590-01-P
