[Federal Register Volume 59, Number 156 (Monday, August 15, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-19922]
[[Page Unknown]]
[Federal Register: August 15, 1994]
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Part IX
Department of Energy
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10 CFR Part 766
Uranium Enrichment Decontamination and Decommissioning Fund; Procedures
for Special Assessment of Domestic Utilities; Final Rule
DEPARTMENT OF ENERGY
10 CFR Part 766
RIN 1901-AA52
Uranium Enrichment Decontamination and Decommissioning Fund;
Procedures for Special Assessment of Domestic Utilities
AGENCY: Office of Environmental Management, Department of Energy.
ACTION: Final rule.
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SUMMARY: This final rule revises the procedures and methods that the
Department of Energy (DOE or the Department), Office of Environmental
Management, will use to invoice and collect a Special Assessment from
domestic utilities. The assessments will be deposited into the Uranium
Enrichment Decontamination and Decommissioning Fund (Fund), established
under Chapter 28 of the Atomic Energy Act of 1954 (Act), as amended by
Title XI of the Energy Policy Act of 1992 (EPACT). The Fund will be
used to pay for the costs of decontamination and decommissioning (D&D)
and remedial action activities at DOE's uranium enrichment facilities,
and for reimbursement of certain costs of D&D, reclamation, and other
remedial actions incurred by licensees at active uranium or thorium
processing sites, as specified in Title X of the EPACT.
EFFECTIVE DATE: September 14, 1994.
FOR FURTHER INFORMATION CONTACT: Ross Bradley, U.S. Department of
Energy, Uranium Enrichment Decontamination and Decommissioning Fund
Manager, Mail Stop EM-42, 1000 Independence Ave., SW, Washington, DC,
20585, (301) 903-7646; or Edward Le Duc, U.S. Department of Energy,
Office of General Counsel, Mail Stop GC-51, 1000 Independence Ave.,
SW., Washington, DC, 20585, (202) 586-6947.
SUPPLEMENTARY INFORMATION:
I. Background
II. The Interim Final Rule and the Proposed Rule
III. Response to Public Comment
A. Detailed Listing of Activities to be Paid from the Fund
B. Definition of Commercial Electricity Generation
C. Treatment of SWUs in Leased Material in Calculating the
Special Assessment
D. Calculation of Future Assessments
E. Treatment of DOE Produced SWUs Re-Entering the U.S. Domestic
Market in Calculation of the Special Assessment
F. Treatment of Fabrication Losses in Calculation of the Special
Assessment
G. Treatment of SWUs Sold to Domestic Utilities That Shut Down
Their Nuclear Power Plants Prior to Enactment of the EPACT
H. Treatment of SWUs Sold to Another Domestic Utility at a
Different Tails Assay in Calculation of the Special Assessment
I. Treatment of SWUs Traded or Loaned in Calculation of the
Special Assessment
J. Invoicing of the Special Assessment in Proportion to U.S.
Congressional Appropriations to the Fund
K. Payment Schedule for Future Assessments
L. Fixed Annual Date for Invoicing
M. Payment of the Special Assessment for Utilities Transferring
All of Their SWUs to Another Domestic Utility
N. Submittal of Special Assessment Payment after Approval from
Public Utility Commissions
O. Establishment of a D&D Trust Fund Managed by the Domestic
Utilities
P. Payment of Interest on Credits to future Special Assessments
Q. Method of Payment
R. Reconciliation Adjustments and Appeals
S. Prepayment of Special Assessments
T. Miscellaneous Comments
U. Review Under Executive Order 12866
V. Review Under the Paperwork Reduction Act
IV. Section-By-Section Analysis
A. Subpart A--General
1. Secs. 766.1 and 766.2 Purpose and Applicability
2. Sec. 766.3 Definitions
B. Subpart B--Uranium Enrichment Decontamination and
Decommissioning Fund; Procedures for Special Assessment of Domestic
Utilities
1. Sec. 766.101 Data Utilization
2. Sec. 766.102 Calculation Methodology
3. Sec. 766.103 Special Assessment Invoices
4. Sec. 766.104 Reconciliation Adjustments and Appeals
5. Sec. 766.105 Payment Procedures
6. Sec. 766.106 Late Payment Fees
7. Sec. 766.107 Prepayment of Special Assessments.
V. Review Under Executive Order 12866
VI. Review Under the Regulatory Flexibility Act
VII. Review Under the Paperwork Reduction Act
VIII. Review Under the National Environmental Policy Act
IX. Review Under Executive Order 12612
X. Review Under Executive Order 12778
I. Background
Sections 1801, 1802 and 1803 were added to the Act by Title XI of
the EPACT (Pub. L. 102-486). Section 1801 establishes the Fund in the
Treasury of the United States (42 U.S.C. Sec. 2297g). Amounts on
deposit in the Fund are available to the Secretary of Energy, subject
to appropriations, for D&D and remedial action activities at DOE's
uranium enrichment facilities and for reimbursement of uranium and
thorium licensees for certain costs of D&D, reclamation, and other
remedial actions incurred by licensees at active uranium or thorium
processing sites, as specified in Title X of the EPACT (42 U.S.C.
Sec. 2296a et seq.). The Act provides that amounts in the Fund be
invested by the Secretary of the Treasury in obligations of the United
States. The Act also requires the Secretary of the Treasury, after
consultation with the Secretary of Energy, to report to Congress
annually on the financial condition and operations of the Fund.
Section 1802 of the Act provides that the Fund shall consist of
annual deposits of $480 million per fiscal year, to be annually
adjusted for inflation using the Department of Labor's Consumer Price
Index for all-urban consumers (CPI-U)(42 U.S.C. Sec. 2297g-1(a)).
Deposits to the Fund are required to include a Special Assessment on
domestic utilities not to exceed $150 million per fiscal year (adjusted
for inflation using the CPI-U). Section 1802 also authorizes
appropriations to be deposited into the Fund in the amount necessary to
ensure that the total annual amount of $480 million (adjusted for
inflation using the CPI-U) is deposited (42 U.S.C. Sec. 2297g-1(b)).
The amount collected from each domestic utility for the Special
Assessment shall be in the same ratio to the total amount to be
deposited in the Fund, for each fiscal year, as the total amount of
separative work units (SWUs) the utility has purchased from DOE for the
purpose of commercial electricity generation, prior to the date of
enactment of the EPACT (October 24, 1992), bears to the total amount of
SWUs purchased from DOE for all purposes, including units purchased or
produced for defense purposes, prior to October 24, 1992 (42 U.S.C.
Sec. 2297g-1(c)).
Collection of the Special Assessment is authorized as of the date
of enactment of the EPACT (October 24, 1992), and shall continue for a
period of the earlier of 15 years or until $2.25 billion (adjusted for
inflation using the CPI-U) has been collected (42 U.S.C. Sec. 2297g-
1(e)). A Special Assessment levied on domestic utilities is deemed by
the Act to be a necessary and reasonable current cost of fuel, fully
recoverable in a utility's rates in the same manner as other fuel costs
(42 U.S.C. Sec. 2297 g-1(g)).
Section 1803 provides that the National Academy of Sciences shall
conduct a study and provide recommendations for reducing the costs
associated with D&D of the Department's uranium enrichment facilities,
and report its finding to Congress within 3 years after the date of the
enactment of EPACT (42 U.S.C. Sec. 2297g-2(a)). This section specifies
that the costs of D&D activities are to be paid from the Fund until
such time as the Secretary of Energy certifies, and the Congress
concurs, that the activities are complete (42 U.S.C. Sec. 2297g-2(b)).
This section also specifies that the annual costs of remedial action at
DOE's uranium enrichment facilities shall be paid from the Fund to the
extent the amount available in the Fund is sufficient (42 U.S.C.
Sec. 2297g-2(c)).
II. The Interim Final Rule and the Proposed Rule
On August 2, 1993, DOE published an interim final rule (58 FR
41160) and a proposed rule (58 FR 41164) which set forth the procedures
for calculation and collection of the Special Assessment from domestic
utilities for deposit into the Fund.
The interim final rule became effective on September 1, 1993. This
rule revises part 766 by including amendments from the proposed rule
and adding a new section on prepayments.
The interim final rule set forth those procedures, which the EPACT
does not leave to DOE discretion, for calculation of the Special
Assessment from domestic utilities for deposit into the Fund. DOE
issued the rule as an interim final rule to allow for public comment
while facilitating timely administrative action to comply with the
obligation to collect the Fiscal Year 1993 Special Assessment from
utilities by no later than September 30, 1993. The proposed rule
expanded the interim final rule by adding new sections that address
substantive matters left by the EPACT to DOE discretion, such as the
required method of payment, late payment fees, and administrative
appeals.
On August 30, 1993, a public hearing was conducted by DOE on the
proposed rule. No attendees asked to make oral presentations. A
transcript of this hearing is available in the Freedom of Information
Public Reading Room, 1000 Independence Avenue, Washington, DC 20885.
During the public comment period, written comments on the interim
final rule were received from a total of nine organizations
representing domestic utilities, electric power industry groups, and
Congress. Written comments were received on the proposed rule from
seven organizations with the same affiliations.
DOE has considered and evaluated the comments received during the
public comment period. In addition, DOE has addressed comments from two
utilities it received outside the public comment period. The following
discussion describes the comments received, provides DOE's response to
the comments, and describes any changes incorporated into the rule.
III. Response to Public Comment
A. Detailed Listing of Activities To Be Paid From the Fund
Several commenters requested that DOE provide a detailed listing of
the activities at the gaseous diffusion plants that are to be paid from
the Fund. Activities that are to be paid from the Fund are those that
are authorized by the EPACT and subsequently approved by Congress in
appropriation bills. A listing of these activities and other pertinent
information is annually released to the public by the DOE in the Office
of Environmental Management's annual budget documentation. Because this
information is prepared and modified annually, and is made available to
the public, the final rule does not include a detailed listing of all
activities that are to be paid from the Fund. However, the following
are examples of the types of activities at the gaseous diffusion plants
that DOE believes would appropriately be paid for from the Fund:
demolition of buildings, Resource Conservation and Recovery Act
closures and surveillance and maintenance activities.
B. Definition of Commercial Electricity Generation
Several commenters requested that DOE provide a definition of
``commercial electricity generation.'' This term was not defined in the
EPACT. Given that the amount collected from a utility is based upon its
purchases of SWUs for the purpose of commercial electricity generation,
DOE has added a definition to the final rule.
Commercial electricity generation means the production of
electricity for sale to consumers. Power produced under the power
demonstration program operated by the Atomic Energy Commission (AEC)
falls within the definition of commercial electricity generation.
However, SWU deliveries to reactors wholly owned by the AEC under the
power demonstration program, even though they fall within the
definition of commercial electricity generation, are considered
deliveries of SWUs to the government and not to domestic utilities,
since domestic utilities did not purchase these SWUs from DOE or its
predecessor agency the AEC. Therefore, they will not be included in the
calculation for domestic utilities, but will be included in the
calculation for total SWUs produced.
C. Treatment of SWUs in Leased Material in Calculating the Special
Assessment
One commenter requested clarification concerning the treatment of
SWUs in leased material in the calculation of the Special Assessment.
The commenter suggested that the use of leased SWU material in
calculating the Special Assessment would overstate its Special
Assessment and would be inappropriate because unused portions of leased
material were returned to the Government.
Leased material is appropriately included as part of the Special
Assessment to the extent that the material was for the purpose of
commercial electricity generation. Utilities paid ``use and burnup
charges'' for the portion of leased material that they consumed. These
charges were based on the number of SWUs consumed. Therefore, leased
material is being treated as purchased material and is subject to the
Special Assessment. A utility's Special Assessment will be adjusted for
those portions of SWUs in leased material that it did not consume and
that were returned to the Government. In addition, DOE has added a
definition of ``use and burnup charges'' to the final rule.
Domestic utilities converted lease contracts to ``in-situ''
ownership contracts when the Atomic Energy Act was amended to allow
private ownership of special nuclear materials. The original Special
Assessment invoices included SWUs delivered under lease contracts and
under ``in-situ'' contracts. Several commenters noted that the SWUs in
these assessments were double counted as a result of SWUs being counted
as lease deliveries and in-situ deliveries. DOE agrees with these
comments. The Fiscal Year 1994 Special Assessment invoices will be
adjusted to correct for this double counting.
D. Calculation of Future Assessments
Several commenters observed that the EPACT states that the Special
Assessment should be ``annually adjusted for inflation'' and that the
final rule should reflect this requirement and indicate when the
inflation adjustments will commence. The final rule specifies that the
annual Special Assessment shall be adjusted for inflation each fiscal
year following the first Special Assessment using the most recently
published monthly Consumer Price Index for all urban consumers (CPI-U)
published by the Department of Labor and the CPI-U for October, 1992.
(See section 766.102(d)). DOE believes that this provision, which
establishes an adjustment for inflation on each annual assessment
following the first Special Assessment, appropriately implements the
inflation adjustment requirement of EPACT. DOE waived the inflation
adjustment to the first Special Assessment because domestic utilities
had no control over the date of the issuance of the interim final rule,
which established the date of the first Special Assessment.
E. Treatment of DOE Produced SWUs Re-Entering the U.S. Domestic Market
in Calculation of the Special Assessment
One commenter requested clarification as to how DOE plans to treat
any DOE produced SWUs that were sold to foreign utilities and that re-
enter the domestic market. This commenter questioned how this would
affect the reconciliation of SWU records for recalculating the Special
Assessment.
During the reconciliation process, DOE will identify these SWUs
from information provided by utilities and from other sources to which
DOE has access, such as the Nuclear Materials Management and Safeguards
System (NMMSS), a joint DOE-Nuclear Regulatory Commission (NRC)
database. DOE-produced SWUs that were sold to foreign utilities and
later re-entered the domestic commercial market would have the effect
of increasing the number of DOE-produced SWUs purchased by domestic
utilities for the purpose of commercial electricity generation in
relation to the total number of DOE-produced SWUs purchased from DOE
for all purposes, as stated in the EPACT. The Special Assessment
invoices will contain information on the total number of DOE-produced
SWUs purchased by domestic utilities, including those purchased from
foreign utilities. When the reconciliation process is complete, DOE
will provide utilities with a summary of all adjustments made during
the process.
F. Treatment of Fabrication Losses in Calculation of the Special
Assessment
Several commenters requested clarification as to how DOE will treat
fabrication losses in calculating the Special Assessment. The
commenters stated that fuel fabrication losses were not used in
commercial electricity generation and therefore should not be included
in the calculation of the Special Assessments.
In determining a utility's Special Assessment, the EPACT does not
require a SWU to have actually been used in commercial electricity
generation, but only to have been purchased for that purpose.
Therefore, DOE will not adjust Special Assessments to exclude
fabrication losses.
G. Treatment of SWUs Sold to Domestic Utilities That Shut Down Their
Nuclear Power Plants Prior to Enactment of the EPACT
Several commenters questioned the applicability of the Special
Assessment to reactors that have ceased operations or are scheduled for
shut down during the 15-year assessment period. The commenters asserted
that the intent of EPACT is to levy Special Assessments only upon
operating domestic utilities. Relying on EPACT's statement that a
utility may recover the cost of its Special Assessment as a ``current
cost of fuel * * * recoverable * * * in the same manner as the
utility's other fuel cost,'' 42 U.S.C. Sec. 2297g-1(g), one commenter
argued that Congress intended to exempt non-operating facilities. This
language, according to the commenter, suggests a Congressional intent
to subject a utility to the Special Assessment only if it has at least
one operating facility, by which it incurs ``other fuel cost.''
DOE believes that the EPACT is unambiguous in regard to the
statutory applicability of the Special Assessment to domestic
utilities. The statutory provision governing application of the Special
Assessment is 42 U.S.C. Sec. 2297g-1(c). This section states that:
``The Secretary shall collect a special assessment from domestic
utilities,'' and that the amount collected from each utility shall be
proportional to the ``total amount of separative work units such
utility has purchased from the Department of Energy for the purpose of
commercial electricity generation, before October 24, 1992.'' If prior
to October 24, 1992, a utility purchased SWUs from DOE for the purpose
of commercial electricity generation, EPACT's plain terms subject such
a utility to the Special Assessment. EPACT provides no exceptions for
utilities that satisfy this condition of applicability.
One commenter points to a separate provision on rate recoverability
as the basis for implying an exemption from the Special Assessment. DOE
does not believe that the provision in EPACT authorizing a utility's
rate recovery of its Special Assessments, 42 U.S.C. Sec. 2297g-1(g),
was intended by Congress to be a limitation on the statutory
applicability of the Special Assessments. The terms of this provision,
entitled ``Treatment of Assessment,'' do not purport to create an
exemption or to address the scope of applicability of the Special
Assessment. The terms and separate placement of the rate recovery
provision reflect its separate purpose, namely, to allow utilities to
pass through the costs of their Special Assessments.
We note that the statutory structure contemplates that current
ratepayers will bear costs related to fuels that benefitted ratepayers
years earlier. Congress apparently recognized this as a potential
ratemaking issue, and thus directed that the present ratepayers of the
utilities that benefitted from the fuel use would pay the Special
Assessments.
Accordingly, because the EPACT contains no exemption from the
Special Assessment for non-operating reactors, DOE has not exempted
non-operating reactors in this final rule.
H. Treatment of SWUs Sold to Another Domestic Utility at a Different
Tails Assay in Calculation of the Special Assessment
One commenter requested that DOE address how it would treat
enrichment services that were purchased from DOE and subsequently sold
to another utility at a different transaction tails assay that resulted
in a net difference in SWUs.
If a utility purchased DOE-produced SWUs from another utility, the
purchasing utility's assessment will be based on the SWUs specified in
contracts or other probative documents generated at the time of the
secondary market purchase. The selling utility's assessment will be
reduced by an amount that will be determined by the SWUs sold to the
purchasing utility. For instance, in the event that the SWUs purchased
in the secondary market transactions were less than the SWUs originally
purchased from DOE, the selling utility will be assessed for the
difference. If a transaction resulted in a net increase in SWUs, the
purchasing utility will be assessed only for the amount of SWUs
originally purchased from DOE; the selling utility's assessment will be
reduced by the same amount. In general, where a secondary market sale
resulted in a net difference in SWUs, there will be no increase or
decrease, for Special Assessment purposes, in the total number of SWUs
purchased from DOE. The Department bases this principle on its
interpretation of EPACT, which requires Special Assessments to be
determined on the basis of the total SWUs purchased from DOE by
domestic utilities for the purpose of commercial electricity
generation. To implement this requirement, DOE believes that secondary
market transactions cannot be allowed to effect a net increase or
decrease, for Special Assessment purposes, in the total number of SWUs
that were purchased from DOE for all purposes. The following examples
illustrate this principle:
1. Utility A purchases 100 SWUs from DOE. Utility A's assessment would
be based upon 100 SWUs.
2. Utility A purchases 100 SWUs from DOE. Utility A sells this material
to Utility B in a transaction based on the same calculated number of
SWUs. Utility B's assessment would be based upon 100 SWUs. Utility A's
assessment would be based upon 0 SWUs.
3. Utility A purchases 100 SWUs from DOE. In a subsequent sale, Utility
A changes the calculated SWUs and sells the 100 SWUs to Utility B in a
transaction for only 80 SWUs. Utility B's assessment is based upon 80
SWUs. Utility A's assessment is based upon the remaining 20 SWUs
unaccounted for in the secondary market transaction.
4. Utility A purchases 100 SWUs from DOE. In a subsequent sale, Utility
A changes the calculated SWUs and sells the 100 SWUs to Utility B in a
transaction for 120 SWUs. Utility B's assessment is based upon 100
SWUs, and Utility A's assessment is based upon 0 SWUs.
Requests for assessment adjustments reflecting secondary market SWU
transactions may be made pursuant to the requirements of section
766.104. The liability for payment of the Special Assessment rests with
the utility that originally purchased the SWUs from DOE, until such
time that DOE makes a written determination granting or denying a
requested adjustment pursuant to section 766.104(c). Such a
determination must be based upon reliable and adequately probative
information documenting the sale of the SWUs in question. DOE will use
this information to reconcile its records of SWU purchases with both
sellers and purchasers.
I. Treatment of SWUs Traded or Loaned in Calculation of the Special
Assessment
One commenter requested that definitions for the terms
``purchased'' and ``sold'' be incorporated into the final rule, and
that these terms be clearly defined to include enriched uranium trades
and loans as purchases and sales.
DOE has not included a definition of purchased and sold in the
final rule because EPACT sufficiently describes these terms. The EPACT
specifies that a utility is considered to have purchased a separative
work unit from DOE if such separative work unit was produced by DOE,
but purchased from another source; and a utility shall not be
considered to have purchased a separative work unit from DOE if such
separative work unit was purchased by the utility, but sold to another
source.
On a case by case basis, uranium enrichment trades and loans of
SWUs will be considered for treatment as purchases for assessment
purposes when probative and reliable documentation is provided under
the reconciliation provisions set forth at section 766.104, and DOE
determines that a particular trade or loan transaction constitutes a
purchase pursuant to the requirements of the EPACT.
J. Invoicing of the Special Assessment in Proportion to U.S.
Congressional Appropriations to the Fund
The EPACT specifies that the annual Special Assessment of domestic
utilities ``shall not exceed'' $150 million of the total $480 million
in annual deposits to the Fund. One commenter stated that the ratio
(.4545) of the maximum amount of Special Assessments ($150 million) to
the total amount of government deposits ($330 million) represents the
maximum percentage of total deposits the utilities can be assessed in a
given fiscal year. This percentage should be applied against the
Federal Government contributions to the Fund to determine the ceiling
for each annual Special Assessment of domestic utilities. For example,
if the Federal Government contributes $100 million in a given fiscal
year, the utility contribution should be $45.45 million ($100 million x
.4545). The commenter contended that use of this capping method would
make the domestic utility contributions to the Fund proportional to
those made by the Federal Government and would eliminate the
possibility of utility over-subscription to the Fund.
EPACT authorizes the Department to collect a Special Assessment
from domestic utilities up to $150 million per fiscal year without any
requirement for proportionality between the Federal Government and
utility contributions that are actually made to the Fund. Therefore,
DOE will not impose an annually adjusted ceiling on the Fund or a
requirement for actual proportionality between the two Fund sources.
K. Payment Schedule for Future Assessments
Several commenters expressed concern over the condensed payment
schedule for payment of the Special Assessment in Fiscal Years 1993,
1994, and 1995. These commenters contended that this payment schedule
presents an unfair burden on domestic utilities, and may make it
difficult for utilities to obtain full rate recovery of the Special
Assessment.
DOE accommodated this concern in the proposed rule in stating that
``Fiscal Year 1994 invoicing will be postponed two quarters to
accommodate the reconciliation of records.'' This delay also allows for
more time between the Fiscal Year 1993 and Fiscal Year 1994 Special
Assessments. In addition, the EPACT affords utilities full rate
recovery protection without regard to the timing of payments (42 U.S.C.
Sec. 2297g-1(g)).
L. Fixed Annual Date for Invoicing
Several commenters expressed the need for a fixed date for
invoicing of the Special Assessment to allow domestic utilities to plan
for payment of the Special Assessment. DOE has modified the final rule
to accommodate this concern. The final rule provides for annual
invoicing of the Special Assessment on or about October 1 of each
fiscal year with payment due 30 calendar days from the date of invoice,
beginning with the Fiscal Year 1995 Special Assessment.
M. Payment of the Special Assessment for Utilities Transferring All of
Their SWUs to Another Domestic Utility
One commenter recommended an exemption from payment of the Special
Assessment for utilities that transferred, or plan to transfer, their
entire portfolio of SWUs to other domestic utilities.
EPACT requires the Special Assessment to be calculated on the basis
of SWUs purchased from DOE prior to the date of enactment of the
legislation. Therefore, domestic utilities shall be liable for the
Special Assessment based upon SWUs purchased prior to the date of
enactment without regard to potential or actual transfers of SWU
portfolios, except that transfers that were a result of sales made
prior to the date of enactment will be treated as adjustments to a
utility's assessment during reconciliation, in accordance with the
requirements set forth in section 766.104. See Section R.
N. Submittal of Special Assessment Payment After Approval From Public
Utility Commissions
One commenter requested that utilities be allowed to submit their
payments of the Special Assessment after regulatory approval is
obtained from their public utility commission for rate recovery of
these costs. There is no basis for such a contingency in the EPACT. The
EPACT requires DOE to assess and collect an annual Special Assessment
and provides for separate utility rate recovery of the assessments as a
current cost of fuel. Making payment contingent upon a public utility
commission's approval of Special Assessment costs could lead to undue
delay in the collection of the Special Assessments and lost interest
income for the Department. This delay could also cause DOE to risk
violating EPACT by collecting more in a given fiscal year than the $150
million that is authorized, since DOE would lose control over the
timing of collections. Therefore, DOE will not permit a delay in
payment pending public utility commission cost recovery authorization.
O. Establishment of a D&D Trust Fund Managed by the Domestic Utilities
Several commenters requested that the annual Special Assessments,
once collected, be placed into a Trust Fund to be managed by the
domestic utilities. These commenters stated that such an arrangement
would demonstrate prudence to rate regulators, and enable utilities to
provide greater cost-control assurance to their customers.
The EPACT requires that the Fund be established in the Treasury of
the United States, and that amounts contained in the Fund be invested
by the Secretary of the Treasury in obligations of the United States.
(42 U.S.C. Sec. 2297g). Since the EPACT does not leave management of
the Fund to DOE discretion, the Department cannot establish a utility
managed trust fund.
P. Payment of Interest on Credits to Future Special Assessments
Several commenters expressed concern about the inability of
domestic utilities to recover interest on any credits to future Special
Assessments as a result of changes to utility Special Assessments from
the reconciliation process. In the absence of specific authority, DOE
cannot pay interest. The EPACT provides no authority for the payment of
interest on credits or refunds made to utilities. However, DOE expects
the majority of credits to Special Assessments to be completed in
Fiscal Year 1994 as a result of the reconciliation process.
Q. Method of Payment
One commenter requested that DOE modify the final rule, which
requires payment to be made by wire transfer, to allow domestic
utilities to make payment of the Special Assessment by other electronic
funds transfer methods.
The final rule continues to specify wire transfer as the method of
payment because this is the only electronic method accepted by the
Department of Treasury. This method is consistent with payment methods
already in use and familiar to domestic utilities. DOE is currently
investigating the use of the Automated Clearing House method of payment
with the Department of Treasury. Should this collection procedure
become available, DOE may propose modification to this rule to reflect
the change.
R. Reconciliation Adjustments and Appeals
Several commenters remarked that thirty days from the date of a
Special Assessment invoice was insufficient time to file a notice
requesting an invoice adjustment. One of the commenters recommended
that DOE clarify the phrase in section 766.104(a) ``* * * filing of the
notice is complete only upon receipt by DOE.'' The commenter was
concerned that this language could be construed to mean that filing of
a notice is only complete when DOE deems the documentation supplied
with such notice to be acceptable. DOE believes that thirty days is
sufficient time to file a notice requesting adjustment. The final rule
clarifies that domestic utilities are considered to have met the 30-day
filing deadline upon receipt by DOE of the notice requesting an
adjustment, and not contingent upon acceptance of supporting
documentation by DOE. If more time is needed to gather probative
information, DOE will consider utility requests for additional time, up
to 90 days, to gather the necessary information based on a showing of
need.
One commenter requested that DOE provide guidelines for
verification of transactions involving non-utilities and foreign
utilities, and for the recalculation of utility assessments and the
notification of changes in assessments. DOE does not believe that
guidelines would be helpful for these purposes because the use of
reliable and probative documentation, provided by selling and
purchasing utilities and other sources, would be adequate and would
provide flexibility in accomplishing the purpose of the reconciliation
process.
One domestic utility requested that DOE amend the Section-by-
Section Analysis in the interim final rule to clarify that DOE is
giving equal weight to the seller's and purchaser's documentation
submitted in the reconciliation process. DOE has amended section
766.104 and the Section-by-Section Analysis to reflect this request.
DOE has also amended the final rule to allow the Department to
acquire probative documentation that may not reside with the Department
or with a domestic utility, if the Department believes that such
information would be useful for reconciliation of SWU records. During
the reconciliation process, DOE will provide to the affected utilities
the substance of any data obtained from other sources, but may withhold
the source of the information consistent with applicable
confidentiality requirements.
One commenter was concerned that DOE had not provided for refunds
of over-payments of Special Assessments. The final rule provides for
refunds of Special Assessment payments in cases where it is determined
that an over-payment has been made, with the exception of FY 1993
invoices. For FY 1993, DOE has already issued credits or refunds as
appropriate.
S. Prepayment of Special Assessments
Subsequent to the comment period, one domestic utility requested to
prepay future year Special Assessments. For convenience and expediency,
DOE agrees to accommodate this request and has added to the final rule
a new section 766.107 permitting prepayments. However, DOE will apply
only the pro- rata share of any prepayment to a given fiscal year to
ensure that the total Special Assessment for any fiscal year does not
exceed $150 million (adjusted for inflation).
T. Miscellaneous Comments
One commenter requested that section 766.1 be revised to read as
follows: ``The provisions of this part establish policies applicable to
administration of the Fund established by sections 1801, 1802, and 1803
of the Act as amended.'' DOE has revised the final rule to reflect this
request.
Another commenter requested that a definition for the term
``delivery'' be included in the final rule, asserting that unused SWU
credits held by a utility should not be considered deliveries for
purposes of determining the utility's SWU purchases. DOE does not
believe a definition of delivery is necessary because it is relying
upon the Toll Enrichment Services System (TESS), which is defined in
the final rule. The TESS does not define the term delivery but includes
data on SWU deliveries to domestic utilities. DOE intends to use TESS
data in determining SWU deliveries for purposes of determining SWU
purchases from DOE. As appropriate, DOE will modify the application of
TESS data for any discrepancies or further transactions raised during
the reconciliation process.
One commenter requested DOE to insert the word ``commercial''
immediately before ``electricity generation'' in the definition of
Domestic Utility. This comment is consistent with the EPACT, and DOE
has revised the final rule to incorporate the change.
Two commenters requested that the number of significant digits used
in calculating the Special Assessment be specified in the final rule.
The final rule has been modified to specify that five significant
digits will be used in the calculation of the Special Assessment.
In addition to the changes made in response to comments, DOE has
also made a number of clarifying editorial changes in the final rule.
U. Review Under Executive Order 12866
Several commenters addressed DOE's decision not to consider the
final rule as a major rule under Executive Order 12291 (recently
replaced by Executive Order 12866). The commenters believe that the
annual Special Assessment of $150 million appears to satisfy the
criteria for a major rule, or in the case of Executive Order 12866 a
significant regulatory action, having an effect of over $100 million on
the economy. While the assessments to be paid by members of the
electric utility industry will exceed $100 million annually, and may
even be considered a major cost to the industry, these costs are not
the result of any exercise of DOE's discretion in this final rule, but
rather are specifically imposed by EPACT. After consultation with the
Office of Management and Budget, DOE has determined the final rule is
not a significant regulatory action.
V. Review Under the Paperwork Reduction Act
Many commenters stated that the final rule imposes an additional
paperwork burden on the public, and that hundreds of hours have already
been spent in additional paperwork in response to this rule. In
consultation with the Office of Management and Budget (OMB), DOE has
determined, under the Paperwork Reduction Act (44 U.S.C. Sec. 3501 et
seq.), that the final rule imposes relatively minimal additional
paperwork burden on the public. Therefore, DOE will not amend the
rule's information collection requirements.
IV. Section by Section Analysis
A. Subpart A--General
1. Sections 766.1 and 766.2 Purpose and Applicability
Section 766.1 specifies that the purpose of this rule is to
establish procedures for the Special Assessment of domestic utilities
for the Fund pursuant to sections 1801, 1802 and 1803 of the Act.
Section 766.2 describes the applicability of the rule, stating that it
applies to all domestic utilities in the United States that purchased
SWUs from the Department between 1945 and October 23, 1992.
2. Section 766.3 Definitions
Section 766.3 sets forth pertinent definitions applicable to Part
766. DOE has added definitions for ``commercial electricity
generation'' and ``use and burnup charges.''
B. Subpart B--Procedures for the Special Assessment for the Uranium
Enrichment Decontamination and Decommissioning Fund
1. Section 766.101 Data Utilization
Section 766.101 identifies the records upon which the determination
of the SWUs purchased for domestic, foreign, and defense purposes shall
be based. An audit was completed on records in DOE's possession on July
19, 1993, by an independent accounting firm prior to initial billing.
These records reflect all SWUs produced and delivered by DOE (or DOE's
predecessor agencies) from 1945 to October 23, 1992. These records
reflect initial production and delivery of SWUs, and do not reflect
subsequent transactions involving DOE SWUs by domestic utilities.
Accordingly, DOE may also use privately held, reliable, and probative
records of SWU transactions. Access to DOE records is subject to
generally applicable laws and regulations governing classified and
sensitive unclassified information and materials. Requests for
confidential treatment of business records submitted to DOE are subject
to 10 CFR Part 1004.
2. Section 766.102 Calculation Methodology
Section 766.102 describes the method for calculating Special
Assessments. It is based on the formula described in the text of the
Act. The rule has been modified so that all calculations will be
carried to five significant digits.
3. Section 766.103 Special Assessment Invoices
Section 766.103 addresses the billing of the Special Assessments.
DOE issued Fiscal Year 1993 invoices in September 1993, along with a
summary of supporting information as described in paragraph (b) of
section 766.103. Under paragraph (c), DOE will issue similar invoices
in future fiscal years and update supporting information as
appropriate.
4. Section 766.104 Reconciliation, Adjustments, and Appeals
Section 766.104 outlines procedures that must be followed by
domestic utilities when seeking adjustments of invoices. DOE
anticipates that this procedure will be used most often with respect to
the Fiscal Year 1993 Special Assessment as domestic utilities present
records of secondary market SWU transactions for reconciliation of the
allocation of SWUs. Following reconciliation of records, DOE will
provide, in appropriate cases, refunds or additional assessments.
Determinations under section 766.104 will serve as precedents, and may
be the basis for summary determinations for repetitious claims filed in
the years following Fiscal Year 1993.
During the administrative reconciliation process, each domestic
utility will have the opportunity to question the allocation of SWUs
that was the basis of the Special Assessment, and DOE will have the
opportunity to adjust the allocation of SWUs based on probative
information it obtains from other sources. In most instances,
documentary evidence of SWU transactions, in the nature of resales or
purchases of DOE SWUs from other sources, is in the possession of
domestic utilities or other parties involved in the secondary market.
Domestic utilities will be responsible for raising the issue of resales
and purchases and should be prepared to respond to any questions
regarding their records of resales and purchases; however, DOE may rely
on information from other sources, if it is reliable and adequately
probative of the transactions documented, to validate the content of
utility records. DOE shall attempt to verify all claims with
corroborating documentation provided by both the seller and purchaser.
In order to obtain corroborating evidence, DOE may rely on its subpoena
authority pursuant to section 161(c) of the Act. DOE may also seek
relevant data from the Nuclear Regulatory Commission's NMMSS. DOE may
give greater weight to documents that were prepared contemporaneously
with the purchase or sale of SWUs, although other documentation will be
considered. As appropriate, DOE will modify its application of TESS
data for discrepancies and additional transactions raised during the
reconciliation process.
DOE considered the possibility of delaying the requirement to make
payments until reconciliation of records is complete, but rejected such
a procedure because the time required to reconcile records would have
unduly delayed the program. This would have frustrated Congress's
intention to establish the Fund expeditiously, and caused domestic
utilities to encounter delays in obtaining appropriate rate relief.
Section 766.104 also provides an administrative appeal procedure
for domestic utilities to challenge an adverse determination by DOE on
a Special Assessment. Appeals may be filed with the Office of Hearings
and Appeals (OHA), a quasi-judicial body that reports to the Secretary
of Energy. The OHA is responsible for conducting many of the informal
adjudicative proceedings of DOE involving separation of functions. DOE
chose OHA to conduct the appeals process because of its expertise in
developing administrative records regarding economic issues. In
connection with these duties, OHA holds hearings, receives evidence,
develops a record, and issues a final determination, which is subject
to review in federal courts. The procedures of OHA applicable to this
rule are set forth in 10 CFR Part 205, Subpart H. DOE has revised the
rule to clarify that it will rely upon decisions from the OHA and any
ruling from courts with appropriate jurisdiction in revising records of
SWU transactions.
5. Section 766.105 Payment Procedures
Section 766.105 provides that DOE shall specify the procedures that
shall be followed by domestic utilities in payment of their apportioned
share of the Special Assessment. Wire transfer is identified as the
method of payment.
6. Section 766.106 Late Payment Fees
Section 766.106 addresses procedures for assessment of late payment
fees in case of a late payment by a domestic utility of its special
assessment.
7. Section 766.107 Prepayment of Special Assessments
Section 766.107 has been added to the rule to allow prepayment of
future year Special Assessments.
V. Review Under Executive Order 12866
DOE has reviewed this final rule and, after consultation with the
Office of Information and Regulatory Affairs within the OMB, determined
that the final rule is not a ``significant regulatory action'' under
Executive Order 12866, ``Regulatory Planning and Review,'' (58 FR
51735, October 4, 1993). Accordingly, today's action was not subject to
review under the Executive Order by the Office of Information and
Regulatory Affairs.
Under one criterion of the Executive Order, a regulatory action is
deemed significant if it is expected to have an annual effect on the
economy of $100 million or more. It was determined that this criterion
did not apply to today's action for the following reasons. While the
money to be paid by members of the electric utility industry under the
Special Assessment will exceed $100 million annually, these costs are
not the result of any exercise of DOE's discretion in the rule. Rather,
these costs are specifically imposed by the EPACT and reflect for
domestic utilities their statutory pro rata share of costs related to
the remediation and D&D of DOE's uranium enrichment facilities.
VI. Review Under the Regulatory Flexibility Act
In accordance with section 605 (b) of the Regulatory Flexibility
Act, 5 U.S.C. Sec. 601 et seq., DOE finds that sections 603 and 604 of
that Act do not apply to this rule because it will not have a
significant economic impact on a substantial number of small entities.
This finding is based on a determination that the domestic utilities
who will be assessed are not small entities.
VII. Review Under the Paperwork Reduction Act
The information collection requirements in this rule have been
approved by the OMB under the Paperwork Reduction Act and have been
assigned OMB control number 1910-1400.
VIII. Review Under the National Environmental Policy Act
This rule establishes procedures for the Special Assessment of
domestic utilities for amounts that are to be deposited in the Fund.
The Fund will be used to pay for the cost of D&D and remedial action
activities at DOE's uranium enrichment facilities, and for the
reimbursement of certain costs of D&D, reclamation, and other remedial
actions incurred by licensees at active uranium or thorium processing
sites, as specified in Title X of the EPACT. Implementation of this
rule will not affect the legally required cleanup of the sites or
result in any other environmental impacts. The Department has therefore
determined that this rule is covered under the Categorical Exclusion
found at paragraph A.6 of Appendix A to Subpart D, 10 CFR Part 1021,
which applies to the establishment of procedural rulemakings.
Accordingly, neither an environmental assessment nor an environmental
impact statement is required.
IX. Review Under Executive Order 12612
This final rule does not have a substantial direct effect on the
states, the relationship between the states and the Federal Government,
or the distribution of power and responsibilities among various levels
of Government. No Federalism assessment under Executive Order 12612 is
required.
X. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2 (a)
and (b), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation clearly
specifies any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect, describes any administrative
proceedings to be available prior to judicial review and any provisions
for the exhaustion of such administrative proceedings; and defines key
terms. DOE certifies that today's final rule meets the requirements of
sections 2 (a) and (b) of Executive Order 12778.
List of Subjects in 10 CFR Part 766
Confidential Business Information, Electric Power Rates, Electric
Utilities, Nuclear Materials, Radioactive Materials, Reclamation,
Reporting & Recordkeeping Requirements, Uranium, Waste Treatment &
Disposal.
Issued in Washington, D.C., on this 8th day of August, 1994
Thomas P. Grumbly,
Assistant Secretary for Environmental Management.
For the reasons set forth in the Preamble, Part 766 of Title 10 of
the Code of Federal Regulations is revised to read as set forth below:
PART 766--URANIUM ENRICHMENT DECONTAMINATION AND DECOMMISSIONING
FUND; PROCEDURES FOR SPECIAL ASSESSMENT OF DOMESTIC UTILITIES
Subpart A--General
Sec.
766.1 Purpose
766.2 Applicability
766.3 Definitions
Subpart B--Procedures for Special Assessment
766.100 Scope
766.101 Data utilization
766.102 Calculation methodology
766.103 Special Assessment invoices
766.104 Reconciliation, adjustments and appeals
766.105 Payment procedures
766.106 Late payment fees
766.107 Prepayment of future special assessments
Authority: 42 U.S.C. Secs. 2201, 2297g, 2297g-1, 2297g-2, 7254.
Subpart A--General
Sec. 766.1 Purpose.
The provisions of this part establish procedures for the Special
Assessment of domestic utilities for the Uranium Enrichment
Decontamination and Decommissioning Fund pursuant to sections 1801,
1802 and 1803 of the Atomic Energy Act of 1954, as amended (42 U.S.C.
Sec. 2011 et seq.).
Sec. 766.2 Applicability.
This part applies to all domestic utilities in the United States
that purchased separative work units from the DOE between 1945 and
October 23, 1992.
Sec. 766.3 Definitions.
For the purposes of this part, the following terms shall be defined
as follows:
CPI-U means the Consumer Price Index for all-urban consumers
published by the Department of Labor.
Commercial electricity generation means the production of
electricity for sale to consumers.
DOE means the United States Department of Energy and its
predecessor agencies.
Domestic utility means any utility in the United States that has
purchased SWUs produced by DOE for the purpose of commercial electrical
generation during the period beginning in 1945 to October 23, 1992.
Fund means an account in the U.S. Treasury referred to as the
Uranium Enrichment Decontamination and Decommissioning Fund,
established by section 1801 of the Atomic Energy Act of 1954, as
amended.
Oak Ridge Operations Office means the Oak Ridge Operations Office
of the Department of Energy in Oak Ridge, Tennessee.
Special Assessment means the Special Assessment levied on domestic
utilities for payments into the Fund.
SWU means a separative work unit, the common measure by which
uranium enrichment services are sold.
TESS means the Toll Enrichment Services System, which is the
database that tracks uranium enrichment services transactions of the
DOE Oak Ridge Operations Office for the purpose of planning, toll
transaction processing, customer invoicing and historical tracking of
SWU deliveries.
Use and burnup charges mean lease charges for the consumption of
SWUs and natural uranium.
Subpart B--Procedures for Special Assessment
Sec. 766.100 Scope.
This subpart sets forth the procedures for the Special Assessment
of domestic utilities for funds to be deposited in the Fund.
Sec. 766.101 Data utilization.
DOE shall use the records from the Toll Enrichment Services System
(TESS) and other records maintained by the Oak Ridge Operations Office
in order to determine the total SWUs purchased from DOE for all
purposes. DOE shall use records from TESS, relevant records of domestic
utilities, and such other information as DOE deems to be reliable and
probative in determining the number of SWUs that were purchased by each
domestic utility prior to October 24, 1992. A domestic utility shall be
considered to have purchased a SWU from DOE if the SWU was produced by
DOE but purchased by the domestic utility from another source. DOE
shall consider a purchase to have occurred upon the delivery of a SWU
to the domestic utility purchasing the SWU. A domestic utility shall
not be considered to have purchased a SWU from DOE if the SWU was
purchased by the domestic utility but subsequently sold to another
source.
Sec. 766.102 Calculation methodology.
(a) Calculation of Domestic Utilities' Annual Assessment Ratio to
the Fund. Domestic utilities shall be assessed annually for their share
of the Fund. The amount of the assessment shall be determined by the
ratio of SWUs produced by DOE and purchased by domestic utilities prior
to October 24, 1992, to the total number of SWUs produced by DOE for
all purposes (including SWUs produced for defense purposes). All
calculations will be carried out to the fifth significant digit. This
ratio is expressed by the following hypothetical example:
------------------------------------------------------------------------
SWUs purchased Total SWUs Special
by all domestic produced--all assessment
utilities purposes ratio
------------------------------------------------------------------------
12345.......... 45678 = .27026
------------------------------------------------------------------------
(b) Calculation of the Baseline Total Annual Special Assessment for
Domestic Utilities. The Annual Special Assessment ratio calculated in
paragraph (a) of this section shall be multiplied by $480 million,
yielding the total amount of the Baseline Total Annual Special
Assessment as of October 1992. In the event that this amount is in
excess of $150 million, the Baseline Total Annual Special Assessment
shall be capped at $150 million. All calculations will be carried out
to the fifth significant digit. The Baseline Total Annual Special
Assessment is determined as shown in the following hypothetical
example:
------------------------------------------------------------------------
Annual Baseline total
Total fund assessment annual special
ratio assessment
------------------------------------------------------------------------
$480,000,000....... x 0.27026 = $129,724,800
------------------------------------------------------------------------
(c) Calculation of Baseline Total Annual Special Assessment per
Utility. The ratio of the total number of SWUs purchased by an
individual domestic utility for commercial electricity generation, to
the total number of SWUs purchased by all domestic utilities for
commercial electricity generation, multiplied by the Baseline Total
Annual Special Assessment calculated in paragraph (b) of this section,
determines an individual utility's share of the Baseline Total Annual
Special Assessment. All calculations will be carried out to the fifth
significant digit. A hypothetical example of such a calculation
follows:
----------------------------------------------------------------------------------------------------------------
Baseline total
Single All utility Utility ratio annual special Individual utility
utility SWUs SWUs assessment special Assessment
----------------------------------------------------------------------------------------------------------------
300.......... 12345 = .02430 x $129,724,800 $3,152,312.64
----------------------------------------------------------------------------------------------------------------
(d) Calculation of Inflation Adjustment. The Baseline Total Annual
Special Assessment billed to domestic utilities shall be adjusted for
inflation using the most recently published monthly CPI-U and the CPI-U
for October 1992. All calculations will be carried out to the fifth
significant digit. A hypothetical example of such a calculation
follows:
------------------------------------------------------------------------
Adjustment
CPI-U (Mar 93) CPI-U (Oct 92) multiplier
------------------------------------------------------------------------
150............. 141.8 = 1.05783
------------------------------------------------------------------------
Utility special Adjustment Adjusted utility
Assessment multiplier assessment
$3,152,312.64...... x 1.05783 = $3,334,610.88
Sec. 766.103 Special Assessment invoices.
(a) DOE shall issue annually a Special Assessment invoice to each
domestic utility. This invoice will specify itemized quantities of
enrichment services by reactor. In each Special Assessment invoice, DOE
shall require payment, on or before 30 days from the date of each
invoice, of that utility's prorated share of the Baseline Total Annual
Special Assessment, as adjusted for inflation using the most recently
published monthly CPI-U data.
(b) DOE shall enclose with the Fiscal Year 1993 Special Assessment
invoice a sealed, business confidential, summary SWU transaction
statement including:
(1) TESS information which documents, by reactor, the basis of the
utility's assessment;
(2) A list of domestic utilities subject to the Special Assessment;
(3) The total number of SWUs purchased from DOE by all domestic
utilities for all purposes prior to October 24, 1992.
(4) The total number of SWUs purchased from DOE for all purposes
prior to October 24, 1992, including SWUs purchased or produced for
defense purposes; and
(5) Such other information as may be appropriate.
(c) With regard to any fiscal year after Fiscal Year 1993, DOE
shall enclose a summary SWU transaction statement with Special
Assessment invoices that will include updated information regarding
adjustments to Special Assessments resulting from the reconciliation
and appeals process under Section 766.104.
(d) The date of each Annual Special Assessment invoicing will be
set on or about October 1 with payment due 30 calendar days from the
date of invoice starting with the Fiscal Year 1995 Special Assessment.
Sec. 766.104 Reconciliation, adjustments and appeals.
(a) A domestic utility requesting an adjustment shall, within 30
days from the date of a Special Assessment invoice, file a notice
requesting an adjustment. Such notice shall include an explanation of
the basis for the adjustment and any supporting documents, and may
include a request for a meeting with DOE to discuss its invoice. If
more time is needed to gather probative information, DOE will consider
utility requests for up to 90 days additional time, providing that the
initial notice requesting an adjustment was timely filed. The notice
shall be filed at the address set forth in the Special Assessment
invoice, and filing of this notice is complete only upon receipt by
DOE. Domestic utilities are considered to have met the filing
requirements upon DOE's receipt of the notice requesting an adjustment
without regard to DOE's acceptance of supporting documentation. The
filing of a notice for an adjustment shall not stay the obligation to
pay.
(b) DOE may request additional information from domestic utilities
and may acquire data from other sources.
(c) After reviewing a notice submitted under paragraph (a) of this
section and other relevant information, and after making any necessary
adjustment to its records in light of reliable and adequately probative
records submitted in connection with the request for adjustment or
otherwise obtained by DOE, DOE shall make a written determination
granting or denying the requested adjustment. As appropriate, DOE shall
modify the application of TESS data for any discrepancies or further
transactions raised during the reconciliation process.
(d) Any domestic utility that wishes to dispute a written
determination under paragraph (c) of this section shall have the right
to file an appeal with the Office of Hearings and Appeals, U.S.
Department of Energy, 1000 Independence Avenue S.W., Washington, DC
20585. Except for the Fiscal Year 1993 Special Assessment, any appeal
must be filed on or before 30 days from the date of the written
determination and should contain information of the type described in
10 CFR Part 205, Subpart H. With regard to a written determination
under paragraph (c) of this section concerning a Fiscal Year 1993
Special Assessment, a domestic utility must file an appeal on or before
30 days from the effective date of this paragraph or from the date of
such written determination, whichever is later. The decision of the
Office of Hearings and Appeals shall be the final decision of DOE. Upon
completion of the reconciliation process, all records of SWU
transactions shall be finalized and shall become the basis of
subsequent Special Assessment invoices. These records shall be revised
to reflect any decisions from the Office of Hearings and Appeals and
any applicable court rulings.
(e) Refunds of Special Assessments shall be provided in cases where
DOE has determined, as a result of reconciliation, that an overpayment
has been made by a domestic utility, and that the domestic utility has
no further current obligation to DOE.
Sec. 766.105 Payment procedures.
DOE shall specify payment details and instructions in all Special
Assessment invoices. Each domestic utility shall make payments to the
Fund by wire transfer to the Department of Treasury.
Sec. 766.106 Late payment fees.
In the case of a late payment by a domestic utility of its Special
Assessment, the domestic utility shall pay interest at the per annum
rate (365-day basis) established by DOE for general application to
monies due DOE and not received by DOE on or before a designated due
date. Interest shall accrue beginning the date of the designated
payment except that, whenever the due date falls on a Saturday, Sunday,
or a United States legal holiday, interest shall commence on the next
day immediately following which is not a Saturday, Sunday, or United
States legal holiday. Late payment provisions for the Special
Assessment to the Fund shall be based on the Treasury Current Value of
Funds Rate (which is published annually by the Treasury and used in
assessing interest charges for outstanding debts on claims owed to the
United States Government), plus six (6) percent pro rata on a daily
basis. The additional six (6) percent charge shall not go into effect
until five (5) business days after payment was originally due. Late
payment fees shall be invoiced within two days of receipt of utility
payment of the special assessment when delinquency is less than 30
days. For longer periods of delinquency, DOE will submit additional
invoices, as appropriate. Late payment fees will be due 30 days from
the date of invoice.
Sec. 766.107 Prepayment of future Special Assessments
DOE shall accept prepayment of future Special Assessments upon
request by a domestic utility. A domestic utility's liability for the
future assessments shall be satisfied to the extent of the prepayments.
DOE shall use the pro rata share of prepayments attributable to a given
fiscal year plus the Special Assessments collected from utilities who
did not prepay for that fiscal year, in order to determine that the
total amount of Special Assessments collected from domestic utilities
in a given fiscal year does not exceed $150 million, annually adjusted
for inflation.
[FR Doc. 94-19922 Filed 8-12-94; 8:45 am]
BILLING CODE 6450-01-P
