ML20036A652
| ML20036A652 | |
| Person / Time | |
|---|---|
| Issue date: | 04/13/1993 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| FRN-58FR21116, RULE-PR-170, RULE-PR-171 NUDOCS 9305130026 | |
| Download: ML20036A652 (21) | |
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NUCLEAR REGULATORY COMMISSION j
L-10 CFR PARTS 170 AND 171 i
RIN 3150-AE54 7
NRC FEE POLICY; REQUEST FOR PUBLIC COMMENT d
AGENCY:
Nuclear Regulatory. Commission.
t ACTION:
Request for public comment.
SUMMARY
The Nuclear Regulatory Commission (NRC) is.' soliciting public-
,a comment on the need for changes to its fee policy and associated legislation.
j This action responds to recent legislation that requires NRC to review its
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policy for assessment of annual : fees, solicit public comment on the need for il changes to this policy, and recommend to the Congress'the changes in existing law the NRC finds are needed to prevent the placement of an unfair burden on l
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NRC licensees. The NRC is presenting various options, alternatives,' and d
questionsefor consideration and comment concerning potential legislative
. changes as well as potential policy changes that would require amendments to -
j NRC's fee regulations.
The NRC is also announcing the receipt of and j
requesting comment' on a petition for rulemaking submitted by the American.
j Mining Congress (PRM-170-4)'that requests that NRC conduct a' rulemaking to j
evaluate its fee policy.
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DATES: The comment period expires (90 days'after publication). Comments.
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. received after this date'will.be considered if itlis practical to do so, but -
Lj the C:m11sion is. able to ensure only that comments received on or before this -
Giv.eng the rel' tively. long comment ' perico. ' recuests l
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'date will'be considered.
a for extensions of the comment period will not be viewed with favor.
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. ADDRESSEES: Submit written comments to:
Secret'ary, U.S. Nuclear' Regulatory.
Commis:icn. Washington. DC 20555, ATTN:
Docketing and Service Erancn.
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9305130026 930413 '
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170'58FR21116' PDR(
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Hand deliver comments to:
11555 Rockville Pike, Rockville, Maryland i
20852, between 7:30 am and 4: 15 pm Federal workdays.
(Telephone 301-504-1678).
Copies of comments received may be examined at the NRC Public Document Room at 2120 L Street, NW., Washington, DC 20555, in the lower level of the Gelman Building.
FOR FURTHER INFORMATION CONTACT:
C. James Holloway, Jr., Office of the Controller, U.S. Nuclear Regulatory Commission, Washington, DC 20555, Telephone 301-492-4301.
SUPPLEMENTARY INFORMATION:
Background
Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990 (OBRA-90), November 5, 1990, requires that the NRC recover approximately 100 percent of its budget authority less the amount appropriated from the Department of Energy (00E) administered Nuclear Waste Fund (NWF) for FYs 1991 through 1995 by assessing fees. The NRC assesses two types of fees to recover it.I budget authority.
First, license and inspection fees, established in 10 CFR Part 170 under the authority of the Independent Offices Appropriation Act (10AA) (31 U.S.C. 9701), recover the NRC's costs of providing individually identifiable services to specific applicants and licensees.
The services provided by the NRC for which these fees are assessed are generally for the review of applications for and the issuance of new licenses or. approvals, amendments to licenses or approvals, and inspections of licensed activities.
Second, annual fees, established in 10 CFR Part 171 under the authority of CBRA-90, recover generic and other regulatory costs not recovered through 10 CFR Part 170 fees.
Subsecuent to enactment of OBRA-90, the NRC published three final fee rules af ter evaluation of public comments.
On July 10. 1991 (56 FR 31472).
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the NRC published a final rule in the Federal Register which established the i
10 CFR Part 170 professional hourly rate and the materials licensing and inspection fees, as well as the 10 CFR Part 171 annual fees to be assessed to recover approximately 100 percent of the FY 1991 budget.
In acdition to establishing the FY 1991 fees, the final rule established the uncerlying basis and method for determining the 10 CFR Part 170 hourly rate and fees, and the 10 CFR Part 171 annual fees.
Portions of the 1991 rule were recently remanded to the Commission for reconsideration as a result of the Court's decision in Allied-Sional v. NRC, (D.C. Cir. March 16, 1993).
A separate Federal Register notice addressing the remand issues will be published in April,1993.
On April 17,1992 (57 FR 13625), the NRC published in the Federal Register two limited changes to 10 CFR Parts 170 and 171.
The limited changes became effective May 18, 1992.
The limited change to 10 CFR Part 170 allowed the NRC to bi'l quarterly for those license fees that were previously billed every six months.
The limited change to 10 CFR Part 171 adjusted the maximum annual fee of $1,800 assessed a materials licensee who qualifies as a small entity under the NRC's size standards.
A lower tier small entity fee of $400 per licensed category was established for small businesses and non-profit organizations with gross annual receipts of less than $250,000 and small governmental jurisdictions with a population of less than 20,000.
On July 23,1992 (57 FR 32691), the NRC published a final rule _in the-Federal Register that established the licensing, inspection, and annual fees necessary for the NRC to recover approximately 100 percent of its budget authority for FY 1992. The basic methodology used in the FY 1992 rule was unchanged from that used to calculate the 10 CFR Part 170 professional hourly i
rate, the specific materials licensing and inspection fees in 10 CFR Part 170, and the 10 CFR Part 171 annual fees in the final rule published July 10, 1991 (56 FR 31472).
Purpose On October 24, 1992, the Energy Policy Act was enacted.
Section 2903(c) of the Act requires the NRC to review its policy for assessment ti annual fees l
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' under Section 6101(c) of the Omnibus Budget Reconciliation Act of 1990, solicit public comment on the need for changes to this policy, anc recommeno l
-changes in existing law to the Congress the NRC finds are needed to prevent
.l the placement of an unfair burden on certain NRC licensees, particularly those l
who hold licenses to operate' Federally owned research reactors used primarily for educational training and academic research purposes.
The Act also i
exempted from fees certain Federally owned research reactors used primarily.
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for educational purposes. On February 4,1993, the NRC received a petition for rulemaking submitted by the American Mining Congress -(AMC). The petition was docketed as PRM-170-4 on February 12, 1993.
The petitioner requested that
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the NRC amend 10 CFR Parts 170 and 171 concerning fees for facilities.
-i materials licenses, and other regulatory services under the Atomic Energy' Act of 1954, as amended.
The petitioner requested this action to mitigate alleged j
inequities and problems with the present fee system.
Because the issues raised by the petitioner concern the same subjects as the fee policy review required by the Energy Policy Act, the NRC is announcing receipt of the petition and requesting public comment on the issues raised in PRM-170-4. in.-
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this document.
i The purpose of this notice is to solicit public comment on the need, if j
any, for changes to the existing NRC fee policy and associated laws in order to comply with Section 2903(c) of the Energy Policy Act and to respond to the l
t AMC petition.
In the legislative area, the NRC encourages commenters not to address
.j the public policy issue of whether the Federal government should fund its activities through user fees rather than_ assessing taxes on the general:
population.
Instead, the NRC ask's that commenters focus-on this central j
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. question:
"Given that. user fees will be assessed to NRC licensees.' what' specific _ legislative or NRC policy changes are 'needed to eliminate any. unfair j
1 burden?"
With respect t'o suggested amendments to.the fee policies set forth in 10 '
CFR Parts 170 and 171, comments that request a fee reduction for ene licensee' j
<ar a' class of licensees :;hould. explicitly indicate who should be' assessed the-
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t budgeted costs for the proposed fee reductions in order to recover 100 percent of the NRC budget authority.
It should be noted that any changes to the existing 10 CFR Parts 170 and 171 would require notice and public 00mment before the changes are made.
The NRC has had two years of experience in implementing the requirement of OBRA-90 to recover approximately 100 percent of the NRC budget authority.
During that time, the NRC has evaluated over 500 public comments on fee related rules; responded to several hundred requests for exemptions, letters from licensees, and letters from the Congress; and responded to thousands of telephone calls from licensees concerning the assessment of annual fees. Many of these coments and letters expressed concern about the burden of fees.
Based on previous public comments and letters, the NRC has developed potential options and alternatives for change as well as questions for further consideration and coment by the public. While coments may be made on any and all aspects of the NRC fee policy and the existing laws upon which the fees are based, it would be particularly helpful to the NRC if the comments addressed the specific items identified in this document.
This would facilitate the process of analyzing and evaluating the coments in an efficient and timely manner.
This would also enable the NRC to provide the Congress with specific recomendations concerning any legislative changes to OBRA-90, and the Atomic Energy Act.
l Although the Energy Policy Act requires only comments on the annual fees assessed by the NRC under Section 6101(c) of OBRA-90 and 10 CFR Part 171, the NRC is also seeking comments on whether or not to broaden the scope of 10 CFR Part 170 to recever some costs that are currently recovered as annual fees under 10 CFR Part 171. These costs are associated with specific NRC actions-l for specific applicants, licensees, or other organizations.
FOUR MAJOR AREAS OF CONCERN IDENTIFIED BY NRC l
To assist in focusing comment, the NRC has identifiea four :roaa areas wnere previous puolic comment or concern inoicatea that the fees.ay place an 5
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The areas include (1) the surcharge assessed to certain licensees under 10 CFR Part 171 and the generic regulatory costs that support the Agreement States; (2) fluctuating annual fees; (3) simplifying the development of annual fees; and (4) the recovery of some costs for specific identifiable services through annual fees.
L 1.
ANNUAL FEE SURCHARGE AND REGULATORY SUPPORT OF AGREEMENT STATES Both the Congress and the NRC have recognized that the NRC budget includes costs for required NRC activities but for which the costs cannot be attributed to existing NRC licensees.
According to the Conference Report accompanying OBRA-90, " increasing the amount of recovery to 100 percent of the NRC's budget authority will result in the imposition of fees upon certain licensees for costs that cannot be attributed to those licensees or classes of licensees." The Conference Report further stated that:
"The conferees intend the NRC to 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." Therefore, to implement 100 percent fee recovery, the NRC must impose the cost of some activities on j
licensees who neither requested nor derive direct benefit from those activities.
In addition, the Commission has made certain policy decisions that result in charging fees to licensees for activities that do not provide regulatory support to those licensees.
Under OBRA-90, the costs of those activities can only be recovered by assessing annual fees to existing NRC licensees. To recover these types of costs, the NRC assesses a surcharge to certain licensees.
t Activities Included In The Current Surcharge The following discussion presents the three broad categories of activities that are included in the current annual fee surcharge:
1.
Activities not associated with an existing NRC licensee or class of licensees.
4 The first major category of costs covers those NRC activities that cannot be attributed to an existing NRC licensee or class of licensees.
This category includes international, Agreement State, generic low-level waste (LLW), and generic uranium enrichment activities.
Some international activities are not directly tied to an individual licensee or class of licensees. These activities include some safety assistance provided to foreign countries and some non-proliferation reviews.
In addition, the NRC's budgeted costs for administering the Agreement State program are attributed only to Agreement State licensees. Only i
Agreement State licensees benefit from this program.
Because Agreement State licensees are not NRC licensees, they cannot be charged an annual fee under OBRA-90.
The three existing LLW disposal facilities are licensed by Agreement States. Two of these facilities also have NRC licenses for disposal of special nuclear material. Therefore, the NRC generic LLW regulatory l
activities do not fully support an existing NRC licensee or class of licensees. However, some NRC licensees, as well as Agreement State licensees, will indirectly receive the benefits from these NRC LLW expenditures because they will dispose of LLW at sites that are expected to be licensed in the future.
Another area where NRC is establishing the regulatory framework to l
I regulate future licensees is uranium enrichment.
Although an application has been filed for an enrichment facility, the license has not been issued _ and, therefore, there is no. uranium enrichment licensee that may be assessed an annual fee for these generic activities.
Under OBRA-90, annual fees can only
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be charged to licensees, not to license applicants.
t For FY 1992, approximat'ely 514 million was included in the power reactor i
surcharge for this category; approximately 54 million was assessed as a I
surcnarge to classes of nonreactor licensees that generate low level waste; j
ana 53 million for acministering the Agreement State program was included in 7
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the NRC professional hourly rate and assessed to all licensees.
2.
Specific applicants and licensees or classes of licensees that are -
a not subject to fee assessment under 10AA or other law.
i The second major category of costs covers those activities for which.the NRC is. unable, on the basis of existing law, to charge a fee to specific -
applicants or licensees even. though they_ receive an identifiable service from the NRC. These activities involve licensing reviews and inspections for Federal agencies other than the Tennessee Valley Authority (TVA)-and the j
United States Enrichment Corporation.'
In addition, the Energy Policy Act exempted from annual fees certain Federally owned research reactors used primarily for educational training and academic research purposes.
With regard to Federal agencies, the NRC performs licensing and
'f inspection activities, and conducts other reviews for which fees, except for-
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10AA prohibitions, would normally be charged under 10 CFR Part 170. For.
example, the NRC reviews D00/ DOE-Naval reactor projects; issues licenses to and conducts inspections of Federal nuclear materials users, for example, Veterans Administration hospitals, Army irradiators, and NASA radiographers 1
and performs safety and environmental reviews of DOE West Valley and uranium mill tailings actions as required by the West Valley Demonstration Project Act and the Uranium Mill Tailing Radiation Control Act- (UMTRCA)', respectively.
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The NRC also reviews advanced reactor designs. submitted by DOE.
The 10AA prohibits the NRC from assessing 10 CFR Part 170 fees to
-l Federal agencies for the costs of these' activities. _ The Energy Policy Act prohibits the assessment of 10 CFR Part 171 annual fees to certain Federally
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owned research reactors used primarily' for educational l purposes'. Therefore, l
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'Section 161w. of th'e Atomic Energy Act authorizes the NRC to impose fees.
l under 10 CFR Part 170 on a Federal agency that applies for or is issued a. license for a utilization f acility designed to produce electrical or, heat. energy '(e.g...
j licensing reviews and instiections of TVA's nuclear-power plants) or; which i
operates any facility regulated.under sections 1701 or 1702 of the Atomic Energy Act-(the enrichment facilities of the United States Enrichment Corporation).
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under OBRA-90, the NRC must assess annual fees to other licensees to recover the costs of these activities in order to comply with the 100 percent recovery -
requirement.
For FY 1992, approximately $4 million was included in the sartnarge for operating power reactors for this category of NRC activities.
3.
Activities relatino to applicants and licensees currently exempt a
from 10 CFR Parts 170 and 171 fees or assessed reduced annual fees for small j
entities based on current Counission policy.
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The third major category of costs covers those activities for which specific applicants or licensees receive NRC services and could be assessed fees. However, as a result of existing Commission fee exemption and fee j
reduction policy decisions, certain licensees are exempt. from fees or pay,
j reduced annual fees.
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Non-profit educational institutions, for example, 'certain nonpower reactor and nuclear material users, are exempted from 10 CFR Part 170 j
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licensing and inspection fees and 10 CFR Part 171 annual fees. The Commission has also reduced the annual fees for those' licensees who can qualify as a small entity under the Commission's regulations. This action is consistent-j
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with the requirements of the Regulatory Flexibility Act of 1980 that agencies -
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-consider the impact of their actions on small entities.
.l For FY 1992, approximately $7 million in NRC costs for nonprofit' j
educational institutions was assessed as a surcharge to operating power j
reactors and approximately $6 million in reduced fees for small entities'was assessed as.a surcharge to all licensees that-are not small entities.
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Activities That Support Both NRC and Agreement State Applicants and Licensees This area covers generic activities that are attributed to a specific class of NRC licensees Dut also support Agreement State licensees.
These activities are associated with the NRC nuclear materials and uranium recovery regulatory program.
The NRC performs generic regulatory activities for nuclear materials users and uranium recovery licensees such as conducting research, developing j
regulations and guidance, and evaluating operational events. These generic activities provide the basis for NRC to regulate its approximately 7,000 l
materials and uranium recovery licensees, as well as for the twenty-nine Agreement States to regulate their 16,000 materials licensees.
However, under OBRA-90, the NRC cannot charge the Agreement State licensees an annual fee to recover a portion of the cost of these activities because they are not NRC licensees. Therefore, only about 30 percent (7,000 NRC licensees of the total population of 24,000) of the licensees can be assessed an annual charge to recover the cost of generic activities that support both NRC and Agreement State licensees.
NRC licensees have indicated that this creates an unfair burden and competitive disadvantage for them. This means that about 70 percent of the generic regulatory costs (about $23 million) that are included in the annual fees for NRC materials and uranium recovery licensees could be considered as an unfair burden.
Legislative Options.
The NRC has identified the following legislative options to address the issues discussed above.
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Modify OBRA-90 to eliminate the costs of certain activities from the fee base so that the NRC is required to collect approximately 100 percent of its budget. less accropriations from the Nuclear Waste Fund (NWF) and the budgeted costs for other activities that would be specified by the NRC. With respect to this alternative. the NRC is particularly interested in receiving i
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public comment on the following question:
Should OBRA-90 be modified to remove all specified activities identified in the four items above from the fee base?
If all four activities are excluded, approximately $61 million, baseo on the FY 1992 budget, would be removed from the fee base.
2.
Modify OBRA-90 to permit the NRC to assess annual fees to f
organizations other than NRC licensees and approval holders that benefit'from regulatory activities.
For example, if this alternative is pursued, it could result in the NRC charging generic regulatory costs to NRC applicants. This would mean that the first applicant for a new class of license could be I
required to pay for all NRC regulation development and research costs to put a regulatory program in place to regulate an entire class of licensees.
3.
Modify the Atomic Energy Act to permit the NRC to assess 10 CFR Part 170 fees to Federal agencies, other than those that already are subject to such assessments, for identifiable services such as reviews, approvals and inspections where direct recovery for these costs is currently prohibited by 10AA. This would result in approximately $4 million in additional fees being collected from Federal agencies.
Policy Chances, i
Policy changes to address the concerns with the surcharge include the elimination of exemptions currently contained in 10 CFR Parts 170 and 171.
This would include, for example, elimination of the exemption for_ nonprofit educational institutions.
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FLUCTUATING ANNUAL FEES The amount of the annual fees fluctuates depending on tne amount of the-buoget and the numoer of licensees available to pay the relatively fixed -
generic and other regulatory costs.
Changes in the budget anc the number of 11 9
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t licensees can cause relatively large changes in the amounts of the annual fees.
For example, the FY 1992 annual fee for some licensees increased by 50 percent due to these factors.
Because of the timing of Congressional approval of the NRC's budget, it is not possible to give licensees much advance notice of these increases.
Licensees have complained that it is unfair for the NRC to assess such large increases because they do not have sufficient warning to adjust prices and contracts to recover the increases.
Lecislative Option.
7 To minimize the potential of large increases in annual fees, one option would be to modify 0 BRA-90 to limit the annual fee increase for each class of licensees. Any cost not recovered as a result of this limitation would be excluded from the fee base.
If this legislative option is pursued, should the increase be limited to the increase as reflected by the Consumer Price Index or some other fixed percentage, for example, 25 percent?
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III. SIMPLIFYING THE DEVELOPMENT OF ANNUAL FEES
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OBRA-90 requires that annual fees be established by rulemaking.
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Therefore, the NRC must publish a proposed rule for comments, evaluate the coments, and issue a final rule each year, even though the basic fee j
methodology and policy are unchanged from the previous year. This results in extra staff effort and delay in establishing the annual fees for a particular year.
In addition, the NRC has received comments indicating that the annual fees for operating power reactor licensees and fuel cycle licensees should be i
simplified.
They point out that annual fees for the operating power reactor class of licensees are determined in three ways.
First, within the operating power reactor class, a distinction is made between the four vencor groups, that is, Babcock & Wilcox, Combustion Engineering, General Electric, and Westingnouse.
Second, within each vendor group, a distinction made by the type of containment, for example, General Electric Mark I, II m Ill.
- Third, a cistinction is made cased on location of the reactor, that is.. nether or 12 t
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not it is located east or west of the Rocky mountains.
As a resuit, the amount of the fees for any one vendor with a specific containment type could vary significantly from year to year leading one commenter to conclude that i
the " variability of the difference is greater than the attempted refinement" (56 FR 31479; July 10,1991).
Similarly, for the class of fuel cycle i
facilities a distinction is made between high enriched fuel fabrication, low enriched fuel fabrication, UF conversion facilities and other fuel facility j
3 licensees. NRC's safety and safeguards budgeted costs are separately i
allocated to these classes.
The NRC is seeking comment on ways to simplify the process of establishing annual fees and simplifying the method for determining annual fees for operating power reactors and fuel fabrication licensees without causing an unfair burden.
legislative Option.
To simplify the process one option is to modify OBRA-90 so fee schedules
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can be published without soliciting public comment, provided the basic fee methodology and policies remain unchanged from the previous year.
i Policy Chances.
One option to address the different annual fees for various classes of operating power reactors and fuel facility licensees is to modify 10 CFR 171 to assess one uniform annual fee for all operating power reactors and one uniform annual fee for all fuel facilities.
IV.
EXPANDED SCOPE FOR 10 CFR PART 170 The authority for NRC's assessment of the 10 CFR Part 170 'icensing, approval, ano inspection fees by the NRC is the 10AA.
The 10 CFR Part 170 fees are assessed for specific services rendered by the NRC to centifiable acclicants and licensees.
Two Supreme Court cases and four Circuit Court decisions relating to the Federal Communications Commission (FC'_; and the 13
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l Federal power Commission (FPC) fees assessed under the authority of the 10AA, l
as well as a Fifth Circuit Court of Appeals case relating to 10AA-type NRC l
fees, have provided additional guidance to the NRC in fee assessment under 10 CFR Part 170. The past and current 10 CFR Part 170 fees were established based on these court decisions.
l Based on the courts' guidance, NRC 10AA-type fees have been structured and are assessed for the review of applications for and the issuance of (1)z a
new licenses; (2) amendments and renewals to existing licenses; (3) approvals, such as topical reports; and (4) for inspections.
Under the current 10 CFR Part 170 fee policy, an application must be filed for a new license, an amendment, renewal, or approval; or an inspection must be conducted by the NRC in order for a 10 CFR Part 170 fee to be assessed.
l The courts' decisions on which the current 10 CFR Part 170 fees are-based were' issued before the OBRA-90 requirement to. recover 100 percent of the' NRC's budget authority-through fees.
Because there are instances where NRC performs specific services for identifiable applicants, licensees, or other 1
organizations that do not meet existing policy for assessing'10 CFR Part 170-fees,.the costs of these services are recovered.through 10 CFR Part 171 annual fees assessed to all licensees ~in a particular class.
If the costs of these'-
types of activities were recovered under 10 CFR Part 170, the annual fee would be decreased.
The NRC is seeking comments on the option of broadening the~ scope of 10 CFR Part 170 to recover costs incurred for specific actions for identifiable:
j recipients because of the interrelationship of 10.CFR Parts 170 and 171'in.
. recovering 100 percent of the NRC budget authority.
Some of these activities j
are identified and. listed below.
The listing'provided is not intended'to be
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all-inclusive.
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Incident investigation Teams (IITs).
The purpose of.the agency's
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incident investigation program is to investigate significant operational ~
j events involving power reactors and other facilities in a _ systematic and.
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5 technically sound manner. Causes of the events are determined so the NRC can take corrective actions. An incident investigation team investigates events of a potentially major significance.
Currently the costs of these investigations are recovered through annual fees.
2.
Vendor inspections. NRC conducts inspections of suppliers of 1
nuclear components, materials, and services in response to specific' hardware
.ailures, regulatory concerns, or allegations to determine whether these I
suppliers are in compliance with applicable NRC and industry requirements.
Currently Part 170 fees are not assessed for these inspections because vendors are not applicants or licensees of the Commission.
The costs of these inspections are recovered through annual fees assessed to power reactors.
3.
Alleoations. NRC conducts investigations of allegations of wrongdoing by NRC licensees and others within its regulatory jurisdiction.
NRC also conducts inspections of allegations made by third parties regarding specific licensees. Not all allegations are substantiated.
The Commission previously decided it would not charge 10 CFR Part 170 fees for inspections -
resulting from third party allegations (49 FR 21298; May 21,1984). The budgeted costs for these investigations are recovered from each class of licensee through annual fees.
4.
Site Decommissionino Manacement Plan (SDMP).
NRC performs reviews and conducts inspections with respect to those companies identified in the Site Decommissioning Management Plan to ensure the clean-up of the sites.
t Currently, 10 CFR Part 170 fees are not assessed because the companies are not NRC applicants or licensees. The budgeted costs for these reviews and-
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inspections are recovered from fuel facilities and materials licensees through annual fees.
5.
Reviews that do not result in formal NRC approvals. The NRC performs reviews that do not result in the issuance of formal or legal approval s.
For example, the NRC staff reviews the results of the Individual Plant Exams (IPE) submittals requested by a generic letter and prepares a draft Safety Evaluation Report (SER) on the findings.
10 CFR Part 170 fees i
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are not assessed because the IPE review does not result in a letter of approval or an amendment to the technical specifications or license. NRC also conducts Probabilistic Risk Analysis (PRA) reviews of specific reactors.
These reviews have resulted in the generation of a ifR.
The SER provides a general description of the staff's conclusions on the strengths and weaknesses of the PRA, with more specific conclusions on areas identified by NRC as subject to potential licensing action, such as changes in the technical specifications.
10 CFR Part 170 fees are not assessed because the review does not result in a letter of approval or an amendment to the technical specifications or license. Another example is NRC's review of financial assurance /decounissioning funding plans or medical quality management programs. NRC review of such submittals does not result in an approval or license amendment.
Therefore, no 10 CFR Part 170 fee is currently assessed.
To recover 100 percent of the budget authority, the budgeted costs for these reviews are recovered through annual fees.
6.
Orders to licensees and amendments resultino from those soecific orders. NRC issues orders to licensees and reviews and approves amendments to licenses resulting from the specific orders. Under current policy (contained in footnote 1 to 5170.21 and footnote 2 to $170.31), 10 CFR Part 170 fees are not assessed for the orders or amendments resulting from the orders because the NRC, on its own initiative, issues an order.
The order is not incident to a voluntary act because the licensee does not request it.
Similarly, amendments resulting from orders are not assessed 10 CFR Part 170 fees because such amendments are not filed voluntarily by the licensee but are filed as a requirement of the order. The budgeted costs of these activities are recovered through annual fees to all licensees.
7.
Contested Pearinas. Contested hearings are conductea by the NRC on specific applications usually at the request of intervenors. The Commission previously cecided not to charge fees for contested hearings because a hearing gives the public an opportunity to intervene or participate in the licensing process and serves an educational purpose (42 R 22159; May 2. 1977).
The budgeted costs are recovered througn annual fees assessed to all licensees of a particular class.
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Policy Chances.
One option to address the actions for applicants, licensees or other organizations identified above is to modify 10 CFR Part.170;to recover the
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costs incurred for specific actions from the identifiable recipients.
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American Mining Congress Petition (PRM-170-4)
-The Petitioner i.
The American Mining Congress (AMC), which filed a petition for rulemaking on February 4,1993, is a national -trade association of mining and mineral processing companies that includes ' owners and operators' of uranium '
l mills, mill tailings sites, and in situ uranium production facilities who are
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NRC licensees. Members of the AMC who use. byproduct radioactive materials
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must be licensed by either the NRC or an Agreement State.
Because the ' issues
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raised by the petition ~ concern the same. subject as the Energy Policy. Act fee.
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requirement, the NRC is' also requesting public comment on the. issues raised in PRM-170-4 in this document.
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Adverse-Impacts on the Petitioner The AMC.has submitted this petition for rulemaking on behalf of its members that hold NRC licenses because it believes they have.been adversely affected by the current license fee rule. The petitioner states that many of.
its members who hold NRC licenses'are Class I uranium' recovery sites.that have ceased operations and are waiting for NRC approval of reclamation plans, or q
are on standby.
The petitioner believes it unfair that these facilities must '
j continue to pay the NRC an annual fee because they' no longer generate revenue j
and require very little NRC supervision.
The petitio'ner als.o asserts that -
l some of these facilities have been' awaiting NRC! approval. of final reclamation -
l Plans for as long as six or seven years, but.in the meantime must continue to j
pay the NRC' an annual. fee'.'
j The Petitioner's Concerns i
.i 17 j
i b
i
b The petitioner's primary concern is that a system that allows an agency to recover 100 percent of its costs invites regulatory abuse as there are no safeguards present to er 1re that fees are collected in relation to the amount of necessary NRC oversight and regulation. The petitioner states that, under the current fee system, the NRC is not accountable to anyone and has no oversight or quality control for inspection efforts.
There are no limits on i
how often inspections occur, no provisions for licensees to object to costs, and no assurance for expeditious service by the NRC.
The petitioner claims the NRC is violating the " fundamental principle of law" that a reasonable relationship must exist between the cost to licensees of a regulatory program and the benefit derived from the regulatory services.
The petitioner believes the 67 percent increase in fees for Class I facilities over the prior year is excessive in comparison with the 6 percent increase in the annual NRC appropriation. The petitioner believes that fee increases should be consistent with the NRC practice of using the consunier price index for annual adjustment of surety bonds. The petitioner believes the annual fee is exorbitant for Class I uranium recovery sites, especially those that have ceased operations and have been waiting for several years for NRC approval of reclamation plans.
The petitioner also states that the 5123 hourly charge for regulatory services is excessive for NRC staff efforts and notes that such an amount is equivalent to the rate charged by a senior consultant at a nationally recognized consulting firm.
The Petitioner's Proposals The petitioner requests that 10 CFR Parts 170 and 171 be amended to alleviate the ineouitable impacts of NRC-imposed fees on its members, specifically for Class I uranium recovery sites that have ceased cperation and await NRC approval of reclamation plans.
The petitioner also suggests that the NRC implement certain standards for services provided.
The petitioner offers the following scecific suggestions for ensuring that the fee schedule bears a reasonable relationship to the benefit provided by NRC oversight and 13 i
~
regulation.
f 1.
The petitioner suggests the implementation of a system that allows NRC licensees to have some control over fees they are assessed. According to the petitioner, no rational relationship exists between the fees charged by the NRC and the benefits derived by its licensees.
A licensee review board should be established that reviews the NRC fee system annually, monitors NRC P
inspection activities to prevent regulatory abuse, and proposes revisions to the fee system to eliminate inequitable treatment of licensees.
2.
The petitioner suggests that the NRC develop a consistent method l
for applying charges. The petitioner believes that the NRC should supply licensees with a cost sheet that describes charges for various types of services and a specific response interval schedule that prescribes deadlines i
for all NRC regulatory services. This would eliminate inequities that may occur when the processing of simple amendment requests takes some NRC staff members longer than others to complete.
The petitioner also suggests that the NRC establish time limits for processing, such as 30 days for simple license amendment requests, and publish the response times for various regulatory services in a table that would be distributed to licensees.
3.
The petitioner suggests that the NRC provide a more complete and detailed accounting of the services it provides.
Currently, the NRC lists only the hours spent and the hourly rate on bills sent to licensees.
In addition to simply listing the time spent and the hourly rate, the petitioner believes that NRC charges should be itemized to also include a description of the work performed, the name(s) of the individual (s) who performed the work, and the cates on which the work was performed.
4 The petitioner suggests that the NRC eliminate factors that contribute to the ineouitable treatment of licensees.
The petitioner believes that fees snould be waived for facilities that no longer generate revenue and require very little NRC supervision, such as for uranium fuel cycle sites that have ceased operation and are waiting for NRC approval of reclamation plans.
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t h
According to the petitioner, the intent of Congress in enacting the Omnibus Budget Reconciliation Act of 1990 was that non-power reactor facilities should be exempt for the most part from annual fees because they comprise less than three percent of the NRC's regulatory costs.
The petitioner also believes that the Department of Energy (DOE) is improperly receiving NRC oversight and review of its mill tailing site reclamation activities without being charged fees by the NRC.
Furthermore, NRC attention to DOE sites prevents adequate NRC resources to be committed to address private sector licensing matters, resulting in exorbitant costs to certain NRC licensees who must contir.ve to I
pay the NRC fees for many years while awaiting NRC action.
The Petitioner's Conclusion The petitioner has identified
" al significant adverse impacts which it claims have affected its members as a result of the current NRC fee system which provides for inequitable treatment of licensees and the potential for regulatory abuse.
The petitioner believes that the fees imposed by the.NRC unfairly burden its uranium recovery facilities that have ceased operation and are awaiting NRC approval of reclamation plans, in some cases for many years.
The petitioner requests that the NRC consider its proposals to amend the rules in 10 CFR Parts 170 and 171.
List of Subjects t
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. Eyproduct material, Holders of certificates.
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registrations, approvals, Intergovernmental relations, Non-payment penalties, Nuclear materials, Nuclear power plants and reactors, Source material, Special nuclear material.
The authority citation for this document is:
Sec.'2903(c), Pub. L. 102-486, 106 Stat. 3125.
/
Dated at Rockville, Maryland this !
day of Aor,11993.
F6ir the Nuclear Regulatory Commission.
l C'
g Samuel J. Chht
\\
SecretaryoQtheCommission\\
h i
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