ML20125E175
| ML20125E175 | |
| Person / Time | |
|---|---|
| Issue date: | 06/17/1992 |
| From: | Funches J NRC OFFICE OF THE CONTROLLER |
| To: | David Williams NRC OFFICE OF THE INSPECTOR GENERAL (OIG) |
| Shared Package | |
| ML20125E155 | List: |
| References | |
| FRN-57FR32691, RULE-PR-170, RULE-PR-171 AE20-2-005, AE20-2-5, NUDOCS 9212160228 | |
| Download: ML20125E175 (235) | |
Text
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- e o UNITED STATES
- {o E NUCLEAR REGULATORY COMMISSION 8 WASHINoTON. D.C,20ti66
[ g 4 i JUN 171992 ) MEMORANDUM FOR: David C. Williams, IG ! Ronald Hauber,.IP
, John Hickey, NMSS 4
Mike Lesar, DFIPS i Trip Rothschild, 0GC ! FROM: Jesse Funches ! Deputy Controller
SUBJECT:
FINAL NOTICE OF RULEMAKING -- 100% FEE REC 0VERY FOR FY 1992 f Enclosed for your review and comment is a draft of. a final rule for the-FY 1992 fees to be assessed to recover 100 percent of the NRC budget authority. I I would appreciate your review and comments on this draft as quickly as 4 possible but-no later than COB, Monday, June 22, 1992. Please' note that: 1) i the annual fees may have to be adjusted based on'Part 170 collection , projections that are now being finalized; 2) the final rule will include any 1 changes to the annual fees as well as your comments.on the draft; and 3) your - ! office concurrence on the final rule will be requested.on a expedited basis. l j If you have any questions, please contact me or Jim Holloway on x24301. Thank j you for your continued cooperation on the NRC fee program. f J L$em I- V' J s, e Funches l Deputy Controller .
Enclosure:
l As stated I ! i , l
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}' ! l I i ' 9212160228 921113 PDR PR h j' 170 57FR32691- PDR
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S e r.ars' o UNITED STATES 3^ i NUCLEAR REGULATORY COMMISSION [ WASHINGTON. D.C. 20566
...../
T JUN 171992 MEMORANDUM FOR: David C. Williams, IG Ronald Hauber, IP John Hickey, NMSS Mike Lesar, DFIPS Trip Rothschild, OGC FROM: Jesse Funches Deputy Controller
SUBJECT:
FINAL NOTICE OF RULEMAKING -- 100% FEE REC 0VERY FOR FY 1992 Enclosed for your review and comment is a draft of a final rule for the FY 1992 fees to be assessed to recover 100 percent of the NRC budget authority. I would appreciate your review and comments on this diaft as quickly as possible but no later than COB, Monday, June 22, 1992. Please note that: 1) the annual fees may have to be adjusted based on Part 170 collection projections that are now being finalized; 2) the final rule will include any changes to the annual fees as well as your comments on the draft; and 3)-your office concurrence on the final rule will be requested on a expedited basis. If you have any questions, please contact me or Jim Holloway on x24301. Thank you for your continued cooperation on the NRC fee program. I' f' ~J L{n,s VJ e Funches
~ Deputy Controller
Enclosure:
As stated
8MO- M
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i i NUCLEAR REGULATORY COMMISSION WASHINoTON, D.C. 20656 O 6C ComcwT
%,...../ Ezf9g JUN 171992 MEMEANDUM FOR: David C. Williams, IG Ronald Hauber, IP John Hickey, NHSS Mike Lesar, DFIPS Trip Rothschild, 0GC FROM: Jesse Funches Deputy Controller
SUBJECT:
FINAL NOTICE OF RULEMAKING -- 100% FEE REC 0VERY FOR FY 1992 Enclosed for your review and comment is a draft of a final rule for the FY 1992 fees to be assessed to recover 100 percent of the NRC budget authority. I weiHe appreciate your review and comments on this draft as quickly as possible but no later than COB, Monday, June 22, 1992. Please note that: 1) the annual fees may have to be adjusted based on Part 170 collection projections that are now being finalized; 2) the final rule will include any changes to the annual fees as well as your comments on the draft; and 3) your office concurrence on the final rule will be requested on a expedited basis. If you have any questions, please contact me or Jim Holloway on x24301. Thank you for your continued cooperation on the NRC fee prograrc. b ~.> b>,7 e Funches [V#JDeputy Controller
Enclosure:
As stated
JUN 17 1992-MEMORANDUM FOR: David C. Williams, IG Ronald Hauber, IP John Hickey, NMSS Mike Lesar, DFIPS Trip Rothschild, OGC FROM: Jesse Funches Deputy Controller j
SUBJECT:
FINAL NOTICE OF RULEMAKING -- 100% FEE RECOVERY FOR FY 1992 Enclosed for your review and comment is a draft of a final rule for the FY-1992 fees to be assessed to recover 100 percent of the NRC budget authority. ' I would appreciate your review and comments on this draft as quickly as , possible but no later than COB, Monday, June 22, 1992. Please note that: 1) the annual fees may have to be adjusted based on Part 170 collection projections that are now being finalized; 2) the final rule will_ include any changes to the annual fees as well as your comments on~ the draft; and 3) your office concurrence on the final rule will be requested on a expedited basis. If you have any q. astions, please contact me or Jim-Holloway on x24301.- Thank you for your continued cooperation on the NRC fee program. Jesse Funches Deputy Controller
Enclosure:
As scated DISTRIBUTION: JFunches JHolloway LHiller DDandois OC R/F 0FFICE- OC -- OC / NAME JHoMMy JE Munid#
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g DATE 06/PH'92 - 06/Q92 0FFICIAL RECORD COPY Document Name: (G:\DBA\ GENERAL \ DRAFT,0C) ; 1
I
- [7590-01]
l NUCLEAR REGULATORY COMMISSION 10 CFR Parts 170 and 171 l RIN: 3150-AE Revision of Fee Schedules; 100% Fee Recovery, FY 1992 AGENCY: Nuclear Regulatory Commission. ACTION: Final rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is amending the licensing, inspection, and annual fees charged to its applicants and licensees. The amendments are necessary to implement Public La" 101-508, signed into law on November 5, 1990, which mandates that the NRC recover approximately 100 percent of its budget authority in Fiscal Year (FY) 1992 less amounts appropriated from the Nuclear Waste Fund (NWF). The amount to be recovered for FY 1992 is approximately $492.5 million.
EFFECTIVE DATE: (30 days after publication) i 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: I. Background. l
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II. Responses to Comments.- III. Final Action -- Changes Included In Final Rule. IV. Section-by-Section Analysis. V. Environmental Impact: Categorical Exclusion. VI. Paperwork Reduction Act Statement. VII. Regulatory Analysis. ' VIII. : Regulatory Flexibility Analysis. ! IX. Backfit Analysis. I I I.- Background Public Law 101-508, the Omnibus Budget Reconciliation Act of. L 1990 (OBRA-90), signed into law on November:5, 1990, requires ! that the NRC recover approximately-100~ percent of~its budget authority less the amount appropriated from the Department-of Energy (DOE): administered NWF1for FYs 1991 through 1995 by assessing license, inspection, and annual fees. On July 10, 1991 (56 FR 31472), the: Nuclear Regulatory Commission published a final rule in the Federal Register which established the Part 170 professional hourly rate'and the materials licensing and inspection fees-as wellz as.the Part 171-annual fees to be assessed to recover approximately 100 percent p 'of the FY11991' budget.__The rule became effective August.9, 1991. In addition-to-establishing'the FY 1991 fees, the August-9, 1991, final rule established the underlying basis and. method for 2 l L
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determining the Part 170 hourly rate and fees and the Part 171 annual fees. This final rule includes the limited changes made to 10 CFR Parts 170 and 171 which were issued as a final rule on April 17, 1992, with an effective date of May 18, 1992 (57 FR 13625). The limited change to Part 170 allows the NRC to bill quarterly for those license fees that are currently billed every six months. The limited change to Part 171 adjusts the maximum annual fee assessed a materials licensee who qualifies as a small entity under the NRC's size standards. The maximum annual fee of
$1,800 per licensed category is continued for FY 1992. However, a lower tier small entity fee of $400 per licensed category has been established for small businesses and non-profit organizations with gross receipts of less than $250,000 and small governmental jurisdictions with a population of less than 20,000.
II. Responses to Comments Nineteen public comments were received by the close of the i comment period on May 29, 1992. An additional seven comments l which were received by the close of business on June 5, 1992, have been evaluated for a total of twenty six comments. l Of the twenty six comments, two were from power reactor licensees or their representatives, and twenty four were from 3
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- persons concerned with other than power reactors, including ten from the uranium industry. Copies of all comment letters are available for inspection in the Public Document Room.
Many of the comments which were considered were similar in i nature. For evaluation purposes, these comments have been grouped, as appropriate, and addressed in the context of the narrow focus of the rule. A. Whether the Commission has properly applied the methodology j adopted in FY 1991 to the FY 1992 budget authority. ) 4 i Comment. A few commenters indicated that the NRC has 1. ) not provided sufficient information on which to eva late fees. These commenters indicated that the NRC; 1) violated the Administrative Procedure Act (APA) by failing to provide an-explanation of how it arrived at its final determination of the annual fees particularly as they apply to fuel cycle facilities; and 2) did not provide sufficient budget detail to verify the
- significant changes in the proposed rule. Commenters recommend i that NRC make publicly available its Five Year Plan or other
! documents with an equivalent-level =of detail to provide the I information necessary to allow effective evaluation and constructive comments on the proposed rule. Response. The NRC believes it has provided suffici;. . 4 r F _ . . ._ , - ,._, . . - _ . . , , _ . . , - - - . _ . . . , - - - ~ _ . _ - .
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FY 1992 budget information to allow effective evaluation and constructive comments on the proposed rule. Part III, Section-by-Section Analysis, of the proposed rule published April 29, 1992, provided seven pages of explanation regarding the FY 1992 budgeted costs for the various classes of licensees being assessed fees (57 FR 18097). In addition, the fee workpapers which were placed in the public document room provide additional information concerning the development of the fees including a breakdown of the FY 1992 budget by activity level for the major programs. The resources shown in the workpapers are the same as those in the Five Year Plan for FY 1992 and are displayed at the lowest level, the activity level, as in the Five Year Plan.
- 2. Comment. A few commenters indicated that the hourly rate of $123 for FY 1992 (a 7 percent increase over FY 1991) is not justified, and that the NRC had not indicated that it is l
in 'trring an increase in the area of salaries, benefits and overhead but rather an increase in total NRC spending. Commenters point out that the NRC professional rate has increased by approximately 115% over a seven year period while the Consumer Prico Index (CPI) has shown an inflation rate of about 22% for the same period. Commenters recommend that NRC bring its FY 1992 hourly rate back in line with the increase in the CPI and the average wage increases in the industry it regulates. This would be 3% to 4% a year or an hourly rate of $119 for FY 1992. Commenters suggest therefore that it is inappropriate to raise 1) S
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f l the professional rate by 7% and 2) inspection fees by 7% and that the NRC use the CPI or other indices for determining future adjustments to its hourly rates. Response. The NRC professional hourly rate is established to recover approximately 100 percent of the Congressionally approved budget, less the appropriation from the NWF as required by OBRA-90. Both the method and budgeted costs used by the NRC in the development of the hourly rate of $123 for FY 1992 is discussed in detail in Part III, Section-by-Section Analysis, S170.20 of the proposed rule (57 FR 18097). For example, Table II shows the direct FTEs (full time equivalents) by major program for FY 1992, and Table III shows the budgeted q costs (salaries and benefits, administrative support, travel and certain contractual support) which must be recovered through fees assessed for the hours axpended by the direct FTEs. The budgeted costs have increased $38.6 million as compared to FY 1991 levels. This increase in the budgeted costs is the reason why the FY 1992 hourly rate must be increased by 7 percent in FY 1992. The NRC is unable to use the CPI or other indices in the development of the HRC hourly rate or the fees to be assessed under 10 CFR Parts 170 and 171 because if the hourly rate were increased by only 3 to 4 percent over the FY 1991 levels, the NRC could not meet the requirement of OBRA-90 to recover approximately 100 percent of the NRC budget authority through fees. 6
- 3. Comment. A few commenters indicated that the NRC may have inappropriately included certain budgeted costs in the fee base. One commenter indicated that the Federal Register notice does not show any offsets to FY 1992 salaries and expenses from revenues received from cooperative nuclear safety research programs, services rendered to foreign governments and international organizations and the material and information access authorization program. This commenter noted that the FY 1992 authorization language indicates that money from these programs may be retained and used for salaries and expenses associated with those activities. One commenter recommends that NRC review its FY 1992 allocation of funds and confirm that the Nuclear Waste Fund (NWF) appropriation of about $20 million includes $1.7 million in administrative costs for high level waste activities in order to avoid double payment by utilities -
- once through their mill / kwhr payment to the.NWF and again through the annual charge that recoups total NRC administrative Costs. Response. The NRC provides some technical assistance to foreign governments and international organizations on a reimbursable basis and participates in cooperative research programs. For example, the Omnibus Budget Reconciliation Act, FY 1987, requires that the NRC certify containers that will be used to transport plutonium through U.S. air space and that all costs incurred for this certification shall be reimbursed by the 7
foreign country involved. Examples of international cooperative research include the participation of Finland and Spain in severe accident research, Austria on source term research, and Korea on piping integrity research. These costs are not included in NRC's budget request but are paid for by the foreign government or international organization for which the work is being performed. In FY 1991, approximately $6 million was collected in the following categories: from domestic entities, foreign governments, and international organizations for their participation in NRC's reactor safety research experiments under the cooperative nuclear safety research program; from foreign governments and international organizations for providing safety assistance and other services related to promoting the public health and safety; from licensees for the cost of fingerprint examinations and criminal history checks of each individual granted access to safeguards information or unescorted access to a nuclear power plant; from licensees for processing costs and the cost of the Office of Personnel Management for conducting background investigation used as a basis for NRC security clearances for designated licensee representatives and other personnel requiring access to classified information and from licensees for the cost of security investigations and related processing associated with access to formula quantities of special nuclear material. It is anticipated-that.approximately the same amount will be collected in FY 1992. 8
These funds are not included in the NRC budget request. The costs are funded by the entity receiving the service or participating in the cooperative research. These activities are therefore not included in the computation of 100 percent fee recovery for the funds appropriated to the NRC and are therefore not charged to licensees. These monies are separately identified in the agency's financial systems, deposited and disbursed for the performance of the functions for which they are collected. With respect to the NWF appropriation for the FY 1992 budget, $1.7 million of the NRC's total administrative support funds was allocated to the High-Level Waste Regulation program based upon the full-time equivalent staffing budgeted for that program. Funds for the NRC High-Level Nuclear Waste Regulation program are appropriated from the Nuclear Waste Fund. Licensees are not charged fees for the administrative support costs which are allocated to the Nuclear Waste Fund.
- 4. Comment. One commentcr indicated that to assess fee Category 2.A.(2), Class I, fees to sites undergoing reclamation amounts to double charging because these types of facilities are already charged fees under Part 170 for the full cost of-regulatory services associated with the reclamation process.
Response: To recover 100 percent of the budget, the NRC assesses two types of fees. First, license and inspection fees are assessed under 10 CFR Part 170 to recover the costs to the 9
NRC of providing individual services to specific applicants for, and holders of, NRC licenses and approvals. The Part 170 fees are billed for specific services rendered in response to an application filed with the NRC for review or an inspection conducted by the NRC. Second,-annual fees are assessed under 10 CFR Part 171 to recover NRC generic and other regulatory costs not recovered under 10 CFR Part 170. Thus, there is no double charging of fees to uranium recovery licensees.
- 5. Comment. A few commenters submitted comments on the methodology used by the NRC to develop the lower tier small-entity fee of $400 established by the NRC effective May 18, 1992.-
While applauding the NRC for developing a lower tier small entity fee, commenters believe that NRC should-1) expand the criteria as to what constitutes a "small entity" and that a sliding scale fee should be considered based on ability to pay; 2) reexamine the method of allocation of. costs because it is inherently unfair particularly the lower tier small entity fee of $400 which enables " mom and pop" operations to remain in business but forces modest companies with small radiographic testing departments to subsidize them; 3) clarify the question.as to whether the gross annual receipts is considered-as income generated only from the activities pertaining to the license or income generated from the entire entity composed of various departments; and 4)-allow small county governmental jurisdictions to deduct the population of incorporated cities and villages not within the jurisdictional 10 . .~. .. -. . .
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I powers of the county. Response. These types of comments were addressed by the NRC in Section II, Responses to comments, item B., of the final limited rule published by the NRC on April 17, 1992 (56FR 13626-13627). With respect to the question of what constitutes gross annual receipts, the NRC stated clearly in establishing the size standards and in the promulgation of the final rule establishing the lower tier small entity fee that the term
" annual receipts" is used in the same manner as used by the Small Business Administration (SBA). In 13 CFR 121.402 (b) (2) annual receipts are defined a . . . to include all revenue in whatever form received or assessed from whatever sources . . .
(54 FR 52647; December 21, 1989) (57 FR 13625; April 17, 1992). Fcr purposes of qualifying as a small governmental jurisdiction, under the NRC fee regulations, the population of a county includes the population of all cities, towns, and villages within the county.
- 6. Comment. One commenter indicated that they had submitted a petition for rulemaking to the NRC to review the FY 1991 methodology so that medical licensees could be treated like similar licensees. The commenter believes the NRC is obligated to address the concerns raised in the petition in terms of whether the proposed fee schedule for FY 1992 is consistent with the methodology adopted in FY 1991. The commenter suggests that 11 1
the NRC institute an immediate moratorium freezing fees at FY 1991 levels until the petition is considered in its entirety. Response. The Commission does not believe it is obligated to address the concerns of the petition of rulemaking filed with the NRC before adopting the final rule establishing fees for FY 1992. The NRC clearly stated when it published receipt of the petition for rulemaking in the Federal Register that "NRC intends to consider the issues raised by the petitioners after the rulemaking action necessary to establish the license and annual fees for FY 1992 is completed . . . . The petitioners' concerns will be considered within the context of the review and evaluation of the fee program for FY 1993 which will be conducted as part of the NRC's continued implementation of Public Law 101-508" (57 FR 20213). To adopt an immediate moratorium freezing fees at the FY 1991 level until the petition l l is considered would result in the NRC not meeting the I requirements of OBRA-90 that NRC recover approximately 100 i i percent of its budget authority for FY 1992.
- 7. Comment. One commenter indicated that the NRC did not properly apply the methodology in FY 1991 to one of its licensees who conducts multiple activities under a single license. The licensee should be assessed annual fees for each fee' category applicable to the license.
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Besconse. (NMSS to respond to OC request for additional information.)
- 8. Comment. Several commenters indicated that it seemed apparent that uranium licensees are being billed for agercy overhead that is not attributable to the regulation of the uranium mining induntry. Commenters believe that a considerable amount of the agency resources are likely dedicated to interagency work for the Department of Energy (DOE) such as NRC review of DOE's reclamation plans for Title 5 uranium mill tailings sites, and interaction with Environmental Protection Agency (EPA) on the promulgation of regulations. The commenters noted that these agencies are not billed for these NRC activities '
which are associated with uranium recovery. Commenters disagree with the NRC that all substantive review at DOE sites is essentially completed prior to the application for a general license for that site. Commenters disagree also with NRC's interpretation of OBRA-90 that in order to bill for annual fees one must be a licensee of the NRC. Commenters argue that the test is whether "any person" receives a service or thing of value from the Commission because OBRA-90 allows the " collection of fees from any person" and "all licenses". That person, whether a licensee or not, commenters argue, shall pay fees to cover the NRC's cost of providing such services or thing of value. Resoonse. With respect to the 10 CFR Part 170 fees 13
assessed pursuant to the Independent Offices Appropriation Act (IOAA) of 1952, the NRC is precluded, under the IOAA, from assessing fees to Federal agencies for specific services rendered. The OBRA-90 limits annual fee assessments to licensees of the NRC. Thus, the NRC does assess annual fees under 10 CFR Part 171 to Federal agencies to the extent that those Federal agencies have a license or approval / certificate from the NRC. As indicated in the Conference Report accompanying OBRA-90, the Commission must collect approximately 100 percent of its budget through fees, even though in some instances certain activities are not attributable to an existing NRC licensee or class of licensres. With regard to NRC activities for DOE under the Uranium Mill Tailings Radiation Control Act (UMTRCA), the NRC is prohibited from assessing such fees to Federal agencies. The fees cannot be assessed under 10 CFR Part 171 because DOE does not possess a license or approval. Thus, the NRC has assessed the i costs for review of DOE's UMTRCA actions based on the Conference l Report guidance that the costs be " recovered from such licensees as the Commission in its discretion determines can fairly, equitable and practicably contribute to their payment." These l costs are being recovered from power reactor licensees, not from l uranium recovery licensees as implied by the commenters. This was noted in the final rule discussion of the surcharge for power reactors (56FR 31486). The interaction that NRC has with EPA is necessary for NRC to develop and execute NRC's generic safety regulatory programs, primarily as a result of the Clear Air Act. 14
Thus, some of these costs are for NRC generic regulatory activities for uranium recovery facilities and have been appropriately included in the annual fee. B. Other comments.
- 1. Comment. The short time frame (30 days) allowed by the NRC for comment on the proposed rule does not provide an adequate opportunity to comment on the proposed rule.
ResoonER. The NRC indicated in Section I, Background, e of the proposed rule published April 29, 1992 that a 30 day public comment was being provided because Public Law 101-508 requires that NRC collect the revised FY 1992 fees by September 30, 1992 and that in order to comply with the public law, fees would have to be assessed on an expedited basis to ensure collection of the required fees by the end of the fiscal year (57 FR 18095). ( 2. Comment. One commenter indicated , tat sections of the proposed regulation should be included within President Bush's i moratorium of new regulations ar the fees for source material licenses, especially fee Category 2A. (2) , ' Class I, do rot meet key aspects of his proposal as they ere burdensome, impede economic growth, do not ir. corporate market mechanism and do not provide a systemqhic cost benefit realization. 15
Response. The President's moratorium to evaluate new and existing regulations does not apply to the fee regulations of 10 CFR Parts 170 and 171 because the fee rules are required to implement the OBRA-90, (Public Law 101-508).
- 3. Comnent. Several commenters addressed the proposed change to the S171.16, Category 2A(2) for uranium recovery licensees. The commenters indicated that dividing the current Class I facilities into two classes, which has the effect of increasing the annual fee for a mill by 138 percent over the FY 1991 levels, does not seem justified or reasonable and that the proposed rule does not distinguish between active and inactive facilities. The commenters state that because inactive mill i
sites undergoing reclamation do not generate uranium mill 4 tailings but are included in fee Category 2.A.(2) Class I, the NRC has overstated the costs for the entire category and appropriate adjustments must be made. Commenters believe that any licensed facility that is serving solely as a cost center and - not generating revenues should be exempt from fees. A few commenters indicated that the assessment of annual fees for Part 71 Quality Assurance (QA) Plans that have increased 200% over 1991 levels have no reasonable relationship to the cost of providing regulatory services particularly when the licensee pays separately on an hourly basis for all other services received from the NRC. Commenters point out that no other licensees or class of licensees is aubject to the same exorbitant level of 16
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increase as fee Category 10.B.1, QA Program Approval Holders. Resnonse. Public Law 101-508 and the accompanying Conference Report provide that to the maximum extent practicable, the annual fee shall have a reasonable relationship to the cost of providing regulatory services to the licensees. Consistent with the law and the guidance in the Conference Report, the NRC allocated its budgeted generic and other regulatory costs not recovered from 10 CFR Part 170 license fees to the major classes of licensees. To the extent practicable and where necessary for a more fair and equitable allocation of costs, a major class of licensees was further subdivided into subclasses. For example, NRC costs for the uranium recovery class of licensees were allocated further to " Class I," Class II," and "Other" facilities. Within a subclass, the cost was uniformly allocated to each license in the subclass based on the premise that there is no significant difference in the generic and other regulatory services provided to each license within a subclass. This approach and principle were used for all classes of licensees. The cost allocated to the licenses within the Class I subclass ( are for the safety generic and other regulatory activities that are attributable to this subclass of licensees and that are not recovered by 10 CFR Part 170 license and inspection fees. These costs were allocated uniformly to each of the seven licenses within the Class I subclass, based on the premise that there is 17
d i I j not a significant difference in the generic and other regulatory services provided to each of the seven licenses. The NRC has reexamined the allocation of costs to the Class I uranium recovery facilitiec. This reexamination has been accomplished
; within the framework of the Public Law and accompanying ! Conference Report, and the fundamental principles used by the NRC 1
in establishing annual fees for all classes of licensees. The NRC costs attributable to the Class I facilities subclass are more related to the fact-that a license authorizing operation exists and not to whether the mill is active or inactive. Thus, a uniform allocation of costs to each license results in an annual fee that has a reasonable relationship'to the generic and other regulatory services provided. with respect to QA plan approvals, during the past year, the NRC experienced a significant number of requests from QA approval holders to change their plans. Many QA approval holders amended their plans, within the window of opportunity provided-by the NRC, to downgrade the authorized use of the plan from i
" fabrication and use" to "use" only. These changes have resulted in a significant decrease in the number of plans authorizing
[ " fabrication and use" and an increase in the number of-plans l authorizing'"use only".- Therefore, in order to recover the costs . for plans authorizing " fabrication and use" from fewer approval holders,Eit is-necessary to assess a much higher annual fee than was assessed in FY 1991. Similarly, to recover the costs for 18 F re, - - , - . , , .,y- c', ,4 -+,..r-,-.-.,.. ....u,.E..y,-,,,,,-,m.,, m,y e-. wh w, , ,,,....re..,, , , , , - - , - -m. ,r..,-,3s-- , y,- w. y g y-s _ m, .
s plans authorizing "use only" from an increased number of plan holders has resulted in a lower annual fee for these approval holders. '
- 4. Comment. One commenter objected to the NRC proposal to exempt from the FY 1992 annual fee those licensees who filed for termination or possession only during the period October 1, 1991 through December 31, 1991, indicating that it'seems arbitrary to establish such a deadline when changes to a license will occur throughout the year and that licensees should be permitted to file exemption requests related to the FY 1992 fees after December 31, 1991. Another commenter indicated that in cases where the fees have substantially increased licensees should now be given the option of canceling the license or approval and avoid FY 1992 annual fee, i
Response. The Commission indicated in the proposed rule, that during the one month' period from the-publication of the FY 1991' final rule on July 10, 1991, to August 9, 1991, the effective date of the rule, many licensees filed requests for termination with the NRC and were not subject to the FY-1991 annual fees. Many other licensees have'either called or written to the NRC since the final rule became effective requesting j further clarification and information concerning the annual fees assessed. The NRC is responding to.these requests as quickly as possible but it was unable to respond and take appropriate action 19
en all ce sha -equests before the end of the fiscal year on
.,cptv Rber J o , ,491. Therefore, based on the number of requests 700:- the Cextission will exempt from the FY 1992 annual fees ths' :ensees, and holders of certificates, registrations, and 6i+xovals who either filed for termination of their licenses or approvals or filed for possession only/ storage only licenses during the period October 1, 1991, through December 31, 1991.
All other licensees and approval holders who held a license or approval on October 1, 1991, will be subject to the FY 1992 annual fees. This would not, however, preclude a licensee from filing a specific exemption request with respect to the FY 1992 fees after December 31, 1991. Such requests would be handled on an individual case-by-case basis. With respect to the comment that licensees now be given the option of canceling the license or approval and avoid the FY 1992 fee, the NRC notes that licensees were put on notice in the proposed rule published April 12, 1991 as well as the final rule published July 10, 1991, that the NRC would assess annual fees that would significantly impact t a substantial number of its licensees in order to recover 100 percent of its budget authority for FY 1991 through FY 1.'95. l r
- 5. Comment. A few commenters indicated that NRC intends to make the final rule establishing the FY 1992 license and i annual fees effective upon publication in violation of the section 553(b) of the Administration Procedures Act.
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Resoonse. The NRC made clear in Section I, Background, of the proposed rule that, as in FY 1991, the final rule would become effective 30 days after publication in the Federal Register. The ARC will send a bill for the amount of the annual fee to the licensee a certificate, registration or approval holder upon publication of the final rule. Payment is due on the effective date of the rule (57 FR 18095). There were four groups of comments that were not within the scope of the proposed rule, and therefore, were not evaluated for the purposes of issuing this final rule. Briefly, they are: 1) the legality of the fees to be assessed by the NRC; 2) the appropriateness of the NRC budget and regulatory program; 3) the impact of the fees on licensees; and 4) the NRC should base the annual fee on the amount of material, or the size of the licensee's operation.
- 1. Lecality of Fees:
Comment. Commenters indicate that OBRA-90 fails to set forth adequate standards to guide NRC's discretion in setting l annual charges under Part 171; therefore, the proposed fees amount to a " tax" rather than a " fee" and NRC lacks legal I authority to promulgate and assess the charges. 21
Response The legal issues regarding the assessment of annual fees were fully addressed in the final rule published by the Commission July 10, 1992 (Section III, Responses to Comments, item A., Legal issues (56 FR 31473-31475).
- 2. AcoroDriateness of NRC.budaet and Reculatory Procramt comment. There were several commenters who questioned the size of the NRC budget and regulatory program. Some commenters indicated that they would expect a decrease in the NRC budget' 4
because of the significant reduction in the number of licensees within the past year and the fact that Maine became an Agreement State during FY 1992. Other commenters do not believe the 42% increase in the budget for uranium recovery activities over the previous year is justified given the current size of the licensed F uranium industry, e.g., there are no active conventional uranium mines and mills in the U.S. and only three commercially operating i in-situ leach facilities and that the fee of-$238,700 appears- - grossly out-of-line with the degree of NRC involvement for uranium recovery sites. Commenters suggest that NRC 1) an freeze-fees at FY 1991 levels; 2) distribute copies of the NRC - budget should be sent to licennees for' approval;or disapproval; i and 3) appoint an outside reviewer to evaluate the scope.and . effectiveness of~the NRC medical 1 program because the increases i are tied to unnecessary and-overly expensive medical regulation , \- amen. 22 9-n_,--. . ..,;.- , , , - +,.._,,-,,-..4..+. -rv+- , -,u---er,,--,w,--,,,n-,amn --v ~ ~ ~ ~ = v " ~ - ~ ~ ~ * ' " ' ' ' " '*""
Reynonse, oBRA-90 requires NRC to recover 100 per cent of its budget authority through fees. The fees being assessed for FY 1992 implement this requirement. The budget is developed by the NRC, submitted by President to the Congress, and approved by the Congress. The resources resulting from the review and decision process are those necessary for NRC to implement its nuclear safety and safeguards responsibilities. The fees must be consistent with this approved budget in order to comply with OBRA-90. Questions relating to the NRC budget approval process were also addressed in the final rule published by the Commission on July 10, 199, in Section III, Responses to Comments, item E, Other comments, (56 FR 31482).
- 3. Imoact of Fees on Licensees:
Comment: Several commenters expressed concern about the impact of the fees with some commenters indicating that an exemption be offered to nonprofit medical institutions similar to nonprofit educational institutions and that the previous exemption from fees for the State and local government be i reestablished. Response: The impact issues regarding the assessment of the annual fees were fully addressed by the Commission in the final rule published July 10, 1992 (see Section III., Response to 23 ! 1
comments, item B2. Major Policy Issues - Consideration of non-safety impacts in assessing fees.) l
- 4. Fees based on material nossessed and size of operation. ;
Comment. Commenters suggested that the NRC assess fees based on the amount of throughput of material, the size of the facility, the amount or type of material possessed, the sales generated by the licensed location, the competitive condition of certain markets including the assessment of fees to Agreement States and the effect of fees on domestic and foreign competition. Another commenter indicated that it is not fair and equitable and contrary to the intent of Congress to assess UF6 converters a fee that is larger than assessed for a mill. l Another commenter stated that the methodology the NRC has applied is unjustified because it results in increased fees of over 2,000 percent over 1990 fee levels to some medical licensees while the risk to the patient remains the same. The commenter suggests that some consideration be given to the commensurate risk to the patient before exercising such exorbitant fees on the industry which has not increased the risk of radiation exposure to the public or to its patients. Resoonse. The issues of basing fees on the amount of material possessed, the frequency of use of the material, and the size of the facilities, were addressed by Commission in the 24
.~ _ . _._. _ _ _ . _ . _ . _ . _ _ _ . _ _ _ ___ . . _ _ _ _ . _ . _ . _ . . _ . ._ _ _. -., _. _ _. _ _ ..--_ ._ ___._._ _ .- _ -
I .a i l Regulation Flexibility Analysis which was Appendix A to the final ] rule published July 10, 1992. (56 FR 31511-31513) 5 - III. Final Action -- Changes Included in Final Rule i i Public Law 101-508 requires that the HRC recover approximately 100 percent of its FY 1992 budget authority, ' including the funding of its Office of-the Inspector General, less the appropriations received from the NWF, by assessing license and annual fees. For FY 1992, the NRC's budget authority is $512.5 million, of which approximately $20.0-million has been appropriated from the NWF. Therefore, the Public Law requires that the NRC collect i approximately $492.5 million in FY 1992 through Part 170 licensing and inspection fees and Part 171 annual. fees. The NRC estimates that approximately $90 million will be recovered in FY 1992 from the. fees assessed under Part 170. The remaining-$402.5 million would be recovered through-the FY 1992 Part 171 annual fees. The Commiasion has not_ changed the. basic approach, policies, and methodology for calculating the.Part 170 professional hourly rate, the specific _ materials. licensing and inspection fees in Part 170, and the Part 171 annual fees set forth in the final-rule published July ~10, 1991'(56 FR 31472). The public was 25 I y- ,-, -, ,-,,, , -, -,x r -- -,,.e . , , . - - . _ ,,,%.,m., .mn- .,m., ,my,____y._.m,-., -.,y.c_-,,y py.,_,.w-.,ym. , , . , ,,, ,.nc-
provided an opportunity to comment fully on the basic approach, policies, and methodology used in July 10, 1991 final rule. Those comments were fully addressed by the Commission in its t final rule. That rule has been challenged in Federal court by several parties and those lawsuits are pending. Under this final rule, fees for most licenses will increase because -- l t t (1) NRC's budget has increased. This has resulted in'a corresponding increase in the professional hourly rate; and (2) Approximately 2,000 licensees have requested that their licenses be terminated since the FY 1991 final-rule was adopted. This has resulted_in fewer licensees to pay for the costs of regulatory activities not recovered undet 10 CFR Part 170. A. Amendments to Part 170: Fees for Facilities, Materials, l Imoort and Excort Licenses, and Other Redulatory Services. Four amendments have been made to Part 170. These amendments do not change the underlying basis for the regulation -- that fees be~ assessed to applicants, persons, and _ licensees for specific identifiable services rendered. These- ' revisions also_ comply with the guidance in the Conference - Committee Report that-fees _ assessed under the Independent Offices Appropriation Act-(ICAA) recover _the full cost-to the NRC of all 26 _ . _ _ _ _ . _ . - - . . _ = _ . _ _ _ . _ , . .-. . . . , - . . _ _ , - . _ .__...,_....w-_.___,, . ~ . . . . . . . . . _
identifiable regulatory services each applicant or licensee receives. I i First, the agency-wide professional hourly rate, which is used to determine the Part 170 fees, is increased from $115 per hour to $123 per hour ($214,509 per direct FTE). The rate is based on the FY 1992 direct FTEs and the FY 1992 budget that is not recovered through the appropriation from the NWF. Second, the current Part 170 licensing and inspection fees in SS 170.21 and 170.31 for all applicants and licensees are increased by seven percent to reflect this increase in the professional hourly rate. Third, the NRC proposes that SS170.21, Facility Category K, and 170.31, Category 15, are amended to make further refinements to the existing fee categories for import and export license applications and amendments. Fourth, the NRC is amending S 170.3 to add a definition for nonprofit educational institutions. B. Amendments to Part 171: Annual Fees for Reactor Operatina Licenses, and Fuel Cycle Licenses and Materials Licenses. Includina Holders of Certificates of CQmolianca. Reaistrations, and Ouality Assurance Procram Acorovals and 27
j 1 i Government Acencies Licensed by NRC. r f Five amendments have been made to Part 171. First, SS 171.15, and 171.16 are amended to increase the annual fees for FY 1992 to recover approximately 100 percent of the FY 1992 budget less fees collected under Part 170 and funds appropriated from the NWF. Second, S 171.16, Category 2.A(2), is amended'to divide Class I facilities in the uranium recovery class of licencees into two classes. The additional category (Class II) would recognize those licensees who do not generate uranium mill tailings. Third, S 171.11 is amended to require that licensees who wish to be considered for an exemption from the annual fees file their respective exemption requests within ninety_(90) days from the effective date of the rule establishing the annual fees. As in FY 1991, the Commission plans to continue a very high threshold of eligibility for exemption requests and reemphasizes its intent to grant exemptions sparingly. The Commission notes that during the one-month period from the publication of the FY 1991 final rule on July 10,-1991, to the effective date of the rule-on August 9, 1991, many licensees
- filed requests for termination with the NRC and were not subject l
28
to the FY 1991 annual fees. Many other licensees have either called or written to the NRC since the final rule became k i effective requesting further clarification and information i concerning the annual fees assessed. The NRC is responding to those requests as quickly as possible but was unable to respond ; and take action on all of the requests prior to the end of the fiscal year on September 30, 1991. Therefore, based on the ' number of requests filed, the Commission, for FY 1992, is exempting from the FY 1992 annual fees those-licensees, and holders of certificates, registrations, and approvals who either + filed for termination of their license or approval or filed for a possess- ,only license during the period October 1, 1991, through December 31, 1991. All other licensees and-approval holders who held a license or approval on October 1, 1991, are subject to the FY 1992 annual fees. Fourth, S 171.19 is amended to credit the quarterly partial l payments made-by certain licensees in FY 1992 toward their FY t l ( 1992 annual fees. Fif th,- the NRC proposes to . amend S 171.5 to add a definition for. nonprofit educational institutions. The commission notes that the impact of the proposed rule on small entities has been evaluated in_the Regulatory Flexibility Analysis (see Appendix A to-this final rule). Based on this
,29
! analysis, the Commission is continuing for FY 1992 a maximum annual fee of $1,800 per licensed category for those licensees , who qualify as a small entity under the NRC's size standards. The lower tier small entity annual fee of $400 per licensed category for certain materials licensees which was adopted by the
^
Commission to be effective May 18, 1992, will apply for FY 1992 (57 FR 13625). e The amounts to be collected through annual fees in the proposed amendments to Part 171 are based on the increased professional hourly rate. The Part 171 annual fees have been determined using the same method as used to determine the FY 1991 annual fees. The proposed amendments to Part 171 do not change the underlying basis for Part 171; that is, charging a class of licensees for NRC costs attributable to that class of licensees. The changes are consistent with the Congressional guidance in the Conference Committee Report, which states that the " conferees contemplate that the NRC will continue to allocate generic costs that are attributable to a given class of licensee to such class" and the " conferees intend that the Nac assess the annual charge under the principle that licensees who require the greatest expenditures of the agency's resources should pay the greatest annual fee." 136 Cong. Rec., at H12692-93. C. FY 1992 Budceted Costs. 30
I The FY 1992 budgeted cocts by major activity, relating to the amendments to Parts 170 and 171 are shown in Table I. Table I Recovery of NRC's FY 1992 Budget Authority Proposed Estimated Amount Recovery Method ($ in Millions) Nuclear Waste Fund $20.0 Part 170 (license and 90.1 inspection fees) Part 171 (annual fees) Power Reactors 322.1 Nonpower Reactors .6 Fuel Facilities 10.5 Spent Fuel Storage .5 Uranium Recovery 2.7 Transportation 5.0 Material Users ._32.11/ Subtotal $373.5 Costs remaining to be 28.9 recovered not identified above Total $512.5 1/Includes $6.4 million that will not be recovered from small fees. materials licensees because of the reduced small entity 1 The $28.9 million identified for those activities-which are not identified as either Parts 170 or 171 or the NWF in Table I are distributed among the NRC classes of licensees as follows:
$25.1 million to operating power reactors; 31 1
I
$1.9 million to fuel f?. llit;er/ and
$1.9 million to other materials licensees.
In addition, approximately $6.4 million must be collected as a result of continuing the $1,800 maximum fee for small entities and the lower tier small entity fee of $400 for certain licensees. In order for the Commission to recover 100 percent of its budget authority in accordance with-the public Law, the Commission will recover $5.5 million of the $6.4 million from operating power reactors and the remaining $.9-million from large entities that are not reactor licensees. This distribution results in an additional-charge-(surcharge) of approximately $281,000 per operating power reactor; $155,100 for each HEU, LEU, and UF 6 fuel facility;
$38,800 for each other fuel facility licensee and waste disposal licensee in Category 4A; $1,600 for each materials licensee in a category that generates a significant amount of lov level waste; and $160 for other materials licensees. When added-to the base annual fee of approximately $2.9 million per reactor, this will.
result in an annual fee of approximately $3.2 million per operating power reactor. The total-fuel facility annual fee would be between approximately $0.1 million and $.2 5 million. The total annual fee for materials licenses would vary' depending . on the fee category (ies) assigned-to the license. 32
,,________________..__m_ _ _ _ _ _ _ _ _ _ , _ _ _ _ . . _ _ _ _ _ _ _ . _ _ _ _ _ _ _ _ _ _ _ . _ _ - . . _ . _ _ _ _ _ . . . _ _
These additional charges not directly or solely attributable to a specific class of NRC licensees or costo not recovered from all NRC licensees on the basis of previous Commission policy decisions would be recovered from the designated classes of licensees previously identified. A further discussion and breakdown of the specific costs by major classes of licensees are shown in Section III of this proposed rule. The Commission notes that in prior litigation over NRC annual fees, the U.S. Circuit Court of Appeals for the District of Columbia Circuit concluded that the NRC "did not abuse its discretion by failing to impose the annual fee on all licensees," Florida Power & Licht Co. v. NRC, 846 F.2d 765, 770 (D.C. Cir. 1988), g_qrt. denied, 109 S. Ct. 1952 (1989). As noted earlier, the conferees on Public Law 101-508 have acknowledged the D.C. Circuit's holding that tne Commission was within its legal discretion not to impose fees on all licensees. IV. Section-by-Section Analysis The following analysis of those sections that are affected under this proposed rule provides additional explanatory information. All references are to Title 10, Chapter I, U.S. Code of Federal Regulations. 33 C
;---..--..~..--..-.-.--..-_.-_--_----.--.---.-...---,
i 1 i Part 170 { i 1 section 170.3 Definitions. i 4 i The definition of a nonprofit educational institution is I l added to mora upecifically identify those applicants and i licenaces that are exempt from fees under S 170.11(a)(4) of the j j Commission regulatioure Many licensees have commented since the j FY 1991 final rule was published that the NRC has not defined the term and thht the crir. aria used by the NRC to classify licensees j as nonprofit educational institutions are not-clear. The NRC is i
- defining the term " nonprofit educational inst 4tution" as a public 4
or nonprofit educationni institution whose primary function is l I , educatiore, whose programs are accredited by a nationally i recognized accrediting agency or association, who is legally i authorized to provide a program of organized instruction or 1 l study, who provides an educational program for which it awards
- academic degrees, and whose educat'ional programs are available to 1
l the public. 1 j Section 170.20 . Average cost per professional staff hour, i i l This section is amended to reflect an agency-wide 1 , professional staff-hour rate based on FY-1992 budgeted costs, 1 Accordingly, the NRC professional staff-hour rate for FY 1992 for-f all fee categories that'are based on full cost is $123 per hour.
- '34
-. .=- - - . . . - _ . - -
1 i or $214,509 per direct FTE. The rate is based on the FY 1992 l direct FTEs and NRC budgeted costs that are not recovered through thE appropriation from the NWF and is calculated using the FY 1991 method as follows: i
- 1. All direct FTEs are identified in Table II by major program.
Table II Allocation of Direct FTEs by Major Program Humber 4 Major Program
! ofd{7ect FTEs_
l 3 Reactor Safety & Safeguards l Regulation . . . . . . . . 1070.4 i
- Nuclear Safety Research . . 154.1 Nuclear Material & Low-
- Level Waste Safety &
Safeguards Regulation . . 294.5 Special and Independent Reviews, Investigations, and Enforcement . . . . . . . 71.0 Nuclear Material Management and Support . . . . . . . 23.0 Total direct FTE . . . . . . 1613.01/ 1/ Regional employees are counted in the office of the program 4 each supports. 2/ In FY 1992, 1,613 FTEs of the total 3,261 FTEs are considered to be in direct support of NRC non-NWF programs. The 33maining 35
-,,,,,,,,,on gr-r n,-wm.,. ..w-v - n -
1,648 FTEs are considered overhead and general and administrative.
- 2. NRC FY 1992 budgeted costs are allocated, in Table III, to the following four major categories:
(a) Salaries and benefits. (b) Administrative support. (c) Travel. (d) Program support.
- 3. Direct program support, the use of contract or other services in support of the line organization's direct program, is excluded because these costs are charged directly through the various categories of fees.
- 4. All other costs (i.e., Salaries and Benefits, Travel, Administrative Support, and Program Support contracts / services for G&A activities) represent "in-house" costs and are to be collected by allocating them uniformly over the total number of direct FTEs.
Using this method, which was described in the final rule published July 10, 1991 (56 FR 31472), and excluding direct Program Support funds, the remaining $346.0 million allocated uniformly to the direct FTEs (1613) results in a rate of $214,509 per FTE for FY 1992. The Direct FTE Hourly Rate is $123 per hour 36
- . . . _ . . _ - _ .. . . _ _ . .. = . _ - - . (rounded to the nearest whole dollar). This rate is calculated by dividing $346.0 million by the number of direct FTEs (1613 FTE) and the number of productive hours in one year (1,744 hours) as indicated in OMB Circular A-76, " Performance of Commercial Activities." Table III FY 1992 Budget Authority by Major Category (Dollars in millions) Salaries and benefits . . . . . . $238.4 Administrative support . . . . . 86.5 Travel . . . . . - . . . . . . . . 13.4 Total nonprogram support obligations . . . . . . . . . $338.3 Program Support . . . . . . . . . 154.2 Total Budget Authority . . . $492.5 Less Program support (Direct Program) . . . . . . . 146.5 Budget Allocated to Direct FTE $346.0 Professional Hourly Rate . .
$123/ hour Section 170.21 Schedule of Fees for Production and Utilization Facilities, Review of Standard Reference Design Approvals, Special Projects, Inspections and Import and Export Licenses.
The licensing and inspection _ fees in this section, which are based on full-cost recovery, are revised to reflect the FY 1992 37-
. . - . - . - .. . - . - . _ . = - - . - _ . - - - . - - .. .
_ _ _ _ . _ . - ._- ._ _ _ _ _ _ _ . _ - . _ _ _ _ _ _ - . . .._ _ _ _ _ _ _._ _ _ _ _ . _ _ _ _ _ _ . ~ . _ budgeted costs and to more completely recover costs incurred by the Commission in providing licensing and inspection services to identifiable recipients. The fees assessed for services provided under the schedule are based on the professional hourly rate as shown in S 170.20 and any direct program support (contractual services) cost expended by-the NRC. Any professional hours expended on or after the effective date of this rule would be assessed at the FY 1992 rate shown in S 170.20. Since July 10, 1991, the NRC has continued to receive comments regarding the fees assessed for import and export licenses in accordance with S 170.21, Facility Category K. Based on experience in implementing these fees for the first time, the Commission is amending the existing fee categories in this'section to provide for more equitable flat fees by expanding the number of fee categories. Footnote 2 of S 170.21 is revised to provide that for those applications currently on file and pending completion, the professional hours expended up to the effective date-of this rule will be 1 assessed at the: professional rates established for' the June 20, 1984, January 30, 1989, July 2,'1990, and July 10,:1991, rules as appropriate. For'topicalLreport applications currently on file which are still pending completion of the review, and for which review costs'have reached the applicable. fee ceiling l l L 38
.-~_.,.n., ....v.,~, .c,,-..,e,-,-,,n,,w,,-.,,w-r,--+,. ,- w.~,., ,~,m- ,= .-,,-,.,,,~,.dn.- . ,c.-,~.,_ s
established by the July 2, 1990, rule, the costs incurred after any applicable ceiling was reached through August 8, 1991, will not be billed to the applicant. Any professional hours expended for the review of topical report applications, amendments, revisions or supplements to a topical report on or after August 9, 1991, are assessed at the rate established by 5 170.20. Section 170.31 Schedule of Fees for Materials Licenses and Other Regulatory Services, including Inspections and Import and Export Licenses. The licensing and inspection fees in this section are modified to recover more corapletely FY 1992 costs incurred by the Commission in providing licensing and inspection services to identifiable recipients. Those flat fees, which are based on the average time to review an application or conduct an inspection, are increased by seven (7) percent across the board to reflect the increase in the professional hourly rate from $115 per hour in FY 1991 to $123 per hour in FY 1992. After application of the 7 percent increase to the flat materials fees, the amounts were rounded, as in FY 1991, by applying standard rules of arithmetic so that the amounts rounded would be'de minimus and convenient to the user. Fees that are greater than $1,000 are rounded to the nearest $100. Fees under $1,000 are rounded to the nearest $10. For examplo, an industrial radiography licensee (Category 39 l l l
. _ _ - - - . - - . - _ _ - - _ .- - -~ - . - _ - - - -
1 .) , 3.0.) will pay revised license and inspection fees as follows: i Current Proposed . Tvoe of Fqgg Egga Increase FY 1992 Fees l Application $3,000 7% $3,200 i Renewal 1,800 7% 1,900 J Amendment 490 7% 520 , Routine Inspection 1,200 7% 1,300
- Nonroutine Inspection 2,500 7% 2,700 l 4 The increase is applicable to fee categories 1.C and 1.D;
- 2.B and 2.C; 3.A through 3.P; 4.B through 9.D, 10.B and 16, and i
j are assessed for applications filed or inspections condurted on , or after the effective date of this rule. Based on experience in i implementing the import and export license fees assessed under i fee Category 15, the Commission is amending the existing fee , categories to provide for more equitable flat fees by expanding i i the number of fee categories. i For those licensing, inspection, and review fees assessed that are based on full-cost recovery (cost for professional staff hours plus any contractual services), the revised hourly rate of
$123, as shown in 5 170.20, applies to those professional staff hours expended on or after the effective date of this rule.
Part 171
- Section 171.5 Definitions.
40
. , , , . .w.,, - , -.4., ,, ...,.,a,-
I l The definition of a nonprofit educational institution is added to provide clarification and to more specifically identify those licensees that are exempt from the annual fees under t S 171.11(a). Many licensees have commented since the final rule was published that NRC has not defined the term and that the criteria used by the NRC to classify licensees as nonprofit educational institutions are not clear. The NRC is defining the term " nonprofit educational institution" as a public or nonprofit educational institution whose primary function is education, i whose programs are accredited by a nationally recognized . accrediting agency or association, who is legally authorized to provide a program of organized instruction or study, who provides an educational program for which it awards academic degrees, and whone educational programs are available to tha public. Section 171.11 Exemptions. Paragraph (a) of this section is amended to require that requests for exemption from the annual fees must be filed by the licensee-within ninety (90) days from the effective date of the final rule establishing the annual fees. Based on the NRC's experience with the-filing of exemption requests under the FY 1991 final rule, some time period must be established'for the prompt filing of exemption requests. The Commission-is, therefore, limiting.the filing of exemption requests-only to the 90 day period immediately following the effective date of the 41
1 d 1 j rule establishing the annual fees. Absent extraordinary ) 4 circumstances, any exemption requests filed beyond that date will l not be considered. The Commission, in making this change, is not t intending to change its exemption policy. As in FY 1991, the i; j Commission plans to continue a very high threshold for F
- eligibility for exemption requests and reemphasizes its intent to i
l grant exemptions sparingly. Therefore, the Commission strongly - i i discourages the filing of exemption requests by licensees who j have previously had exemption requests denied unless there'are-l l significantly changed circumstances. i $ Exemption requests,-or any requests to clarify the bill, l will not, per se, extend the interest-free period for payment of { the bill. Bills are due on the effective date of the final rule, i ! Therefore, only payment will ensure avoidance of interest, i j administrative, and penalty charges. s l The Commission notes that during the one month period from l the p blication of the FY 1991 final rule on July 10, 1991, to i I August 9, 1991, the effective date of the rule, many licensees i ] filed requests for termination with the NRC and were not subject i j to the FY 1991 annual fees. Many other licensees have either called or written to the NRC since the final rule became j -- - -- - .- --
- effective requesting-_further clarification and information concerning the annual fees assessed. The NRC is responding to
~
these requests as quickly as possible but it was unable to i 42 k
...~.....-..---_,,,-...-_.._.,--,-,...-...% . . , . . , . , - , - . ,-,
I I 1 i l' i 1 : l . i respond and take appropriatt action on all of the requests before l-the end of the fiscal year on September 30,-1991. Therefore, j l based on the number of requests filed, the Commission is 1 exempting from the FY 1992 annual fees'those licensees, and i holders of certificates, registrations', and approvals who either 1 i filed for termination of their licenses or approvals or filed for ! j possession only licenses during the period. October 1, 1991, l through December 31, 1991. All other licensees cnd approval holders who held a license or approval on October 1, 1991, are i I subject to the FY 1992 annual fees. 1 i Section 171.15 Annual Fee: Reactor operating licenses. i 1 . . F The annual fees in this section are-revised to reflect the i ! FY 1992 budgeted costs. Paragraphs (b) (3) , (c) (2) , (d), and (e) 4 are revised-to comply with the requirement of the Public Law to recover approximately 100 percent of the NRC budget for.FY.1992. 4 j= Table IV shows the. budgeted costs that have been allocated to-t i operating power reactors. . They have been' expressed in terms of 1 ( the NRC's FY 1992 programs and-program elements. .The resulting
- total base annual fee amount for power reactors-is also shown.
j On the average, the power reactor. base annual fees for FY 1992 have increased about 11 percent above-the FY 1991 annual-fees. , Table IV i ! ALLOCATION OF NRC FY 1992' BUDGET TO POWER REACTORS BASE FEESY l Program Element- . Allocated to-l 43 t I-
Total Power Reactors Program Program Support Direct Support Direct (S,K) FTE f$,K) _IIE REACTOR SAFETV AND SAFEGUARDS REGULATION (RSSR) Power Reactor Applications Reviews $1,100 14.9 1,100 14.9 Standard Reactor Designs Reviews 2,438 56.4 2,439 56.4 Other Reviews 350 8.2 -- 5.9 Reactor License Renewal 1,913 13.7 1,913 13.7 Improvements to Regulations 2,800 14.5 2,800 14.5 Reactor Performance Evaluation 718 33.2 718 33.2 Evaluation of Licensee Performance 600 33.4 600 33.4 Reactor Accident Management 400 10.1 400 10.1 Human Performance Evaluation 600 3.2 600 3.2 Reactor Operator Examinations 6,620 55.9 6,255 53.7 Resident Inspections -- 203.9 -- 203.9 1 i Region-Based Inspections 5,258 285.7 5,258 280.5 Specialized Inspectiono 3,197 69.5 3,197 69.b Project Management -- 156.6 -- 156.6 Licensing Activities Safety 5,816 87.0 6,816 87.0 Evaluations Regulatory Improvements 335 24.2 335 23.1 RSSR PROGRAM TOTAL S32,430 1,059.6 l 44
m:; cm._- w Table IV (Continued) Total Allocated to Program Element Power Reactors Program Program Support Direct Support Direct ($,K) FTE ($,K) FTE NUCLEAR CAFETY RESEARCH (NSR) Integrity of Reactor Components $27,650 17.5 26,150 17.4 Prevent Damage to Reacter Cores 19,655 26.5 19,455 26.2 Reactor Containment Performance 13,922 10.5 13,922 10.5 Advanced Reactor Research 13,050 22.5 13,050 22.5 Generic Satety Issue Resolution 4,313 24.1 4,313 24.1 Developing and improving Regulations 6,450 22.0 5,200 13.4 Severe Accident Implementation 2,125 6.0 2,125 6.0 Radiation Protection / Health Effects 6,285 17.5 3,119 8.6 NSR PROGRAM TOTAL $87,334 128.7 NUCLEAR MATERIAL & LOW LEVEL- WASTE SAFETY & SAFEGUARDS REGULATION Safeguards Licensing and Inspection S465 8.8 $ -- .1 Threat & Event Assess./ International Safeguards 525 13.2. 405 6.8 Decommissioning 1,000 28.1 125 3.7 2 NMLLWSSR PROGRAM TOTAL S530 10.6 l l 3
)
i 45 i t 1 e
Table IV (Continued) Total Allocated to Program Element Power Reactors Program Program-Support Direct Support Direct ($,K) FTE (S,K) FTE SPECIAL AND INDEPENDENT REVIEWS, INVESTIGATIONS, AND ENFORCEMENT Diagnostic Evaluations $350 7.0 S350 7.0 Incident Investigations 50 3.0 50 3.0 NRC Incident Response 1,980 27.0 1,980 27,0 Operational Data Analysis 2,187 25.0 2,087 23.0 Performance Indicators 1,047 4.0 1,047 4.0 Operational Data Collection / 2,016 5.0 2,016 5.0 Dissemination SIRIE PROGRAM TOTAL $7,530 69.0
===... ====..
TOTAL S127,824 1,267.9 TOTAL BASE FEE AMOUNT ALLOCATED TO POWER REACTORS S399.8 millionE LESS ESTIMATED PART 170 POWER REACTOR FEES 77.7 million I PART 171 BASE FEES FOR OPERATING POWER REACTORS S322.1 million ,
- Bane annual fees include all costs attributable to the operating power-
! reactor class of licensees. The base fees do not. include costs allocated to power reactors for policy reasons. U Amount is obtained by multiplying the direct FTE' times the rate per FTE and adding the program support funds. 46
Based on the information in Table IV, the base annual fees to be assessed for FY 1992 are the amounts shown in Table V below for each nuclear power operating license. TABLE V BASE ANNUAL FEES FOR OPERATING POWER REACTORS Reactors Containment Type Annual Fee Westinghouse:
- 1. Beaver Valley 1 PWR Large Dry $2,970,000 Containment
- 2. Beaver Valley 2 " "
2,970,000
- 3. Braidwood 1 " "
2,970,000 Braidwood 2 " "
- 4. 2,970,000 Byron 1 " "
- 5. 2,970,000 Bryon 2 " "
- 6. 2,970,000
- 7. Callaway 1 " " 2,970,000
- 8. Comanche Peak 1 " " 2,970,000
- 9. Diablo Canyon 1 " "
2,964,000
- 10. Diablo Canyon 2 " "
l 2,964,000 l
- 11. Farley 1 " "
2,970,000
- 12. Farley 2 " "
2,970,000
- 13. Ginna " " 2,970,000
- 14. Haddam Neck " "
2,970,000
- 15. Harris 1 " "
i 2,970,000 l
- 16. Indian Point 2 " " 2,970,000
- 17. Indian Point 3 " " 2,970,000
- 18. Kewaunee " "
2,970,000
- 19. Millstone 3 " " 2,970,000 47
- 20. North Anna 1 $2,970,000
- 21. North Anna 2 " " 2,970,000
- 22. Point Beach 1 2,970,000 Point Beach 2 " "
- 23. 2,970,000
- 24. Prairie Island 1 " " 2,970,000
- 25. Prairie Island 2 " " 2,970,000
- 26. Robinson 2 " " 2,970,000 Salem 1 " "
- 27. 2,970,000
- 28. Salem 2 " " 2,970,000
- 29. San Onofre 1 " " 2,964,000
- 30. Seabrook 1 " "
2,970,000
- 31. South Texas 1 " "
2,970,000
- 32. South Texas 2 " "
2,970,000
- 33. Summer 1 " "
2,970,000
- 34. Surry 1 " "
2,970,000
- 35. Surry 2 " "
2,970,000
- 36. Trojan " "
2,964,000
- 37. Turkey Point 3 " "
2,970,000
- 38. Turkey Point 4 " "
2,970,000
- 39. Vogtle 1 " "
2,970,000
- 40. Vogtle 2 " "
2,970,000
- 41. Wolf Creek 1 " "
2,970,000
- 42. Zion 1 " "
2,970,000
- 43. Zion 2 " "
_2,970,000
- 44. Catawba 1 PWR -- Ice Condenser 2,965,000
- 45. Catawba 2 " "
2,965,000 48 l i
_ = . . - . - .= l l
- 46. Cook 1 " " $2,965,000 Cook 2 " "
- 47. 2,965,000
- 48. McGuire 1 " "
2,965,000
- 49. McGuire 2 " " 2,965,000
- 50. Sequoyah 1 " "
2,965,000
- 51. Sequoyah 2 " " 2,965,000 Combustion Engineering:
- 1. Arkansas 2 PWR Large Dry Containment $2,965,000
- 2. Calvert Cliffs 1 " " 2,965,000 Calvert Cliffs 2 " "
- 3. 2,965,000
- 4. Ft. Calhoun 1 " "
2,965,000
- 5. Maine Yankee " "
2,965,000
- 6. Millstone 2 " "
2,965,000
- 7. Palisades " "
2,965,003
- 8. Palo Verde 1 " "
2,959,000 l
- 9. Palo Verde 2 " "
2,959,000
- 10. Palo Verde 3 " "
2,959,000
- 11. San Onofre 2 " "
2,959,000
- 12. San Onofre 3 " "
2,959,000 l 13. St. Lucie 1 " " 2,965,000
- 14. St. Lucie 2 " "
2,965,000
- 15. Waterford 3 " "
2,965,000 l Babcock & Wilcox:.
- 1. Arkansas 1 " "
S2,981,000 49
l
- 2. Crystal River 3 " " $2,981,000
- 3. Davis Besse 1 " " 2,981,000 Oconee 1 " "
- 4. 2,981,000 Oconee 2 " "
- 5. 2,981,000 Oconee 3 " "
- 6. 2,981,000
- 7. Three Mile Island 1 " " 2,981,000 General Electric
- 1. Browns Ferry 1 Mark I $2,925,000 Browns Ferry 2 " "
- 2. 2,925,000 Browns Ferry 3 " "
- 3. 2,925,000 Erunswick 1 " "
- 4. 2,925,000
- 5. Brunswick 2 " "
2,925,000
- 6. Clinton 1 Mark III 2,925,000
- 7. Cooper Mark I 2,925,000 l 8. Dresden 2 " "
2,925,000-
- 9. Dresden 3 " "
2,925,000
- 10. Duane Arnold " "
2,925,000
- 11. Fermi 2 " "
2,925,000 l 12. Fitzpatrick " " 2,925,000 i
- 13. Grand Gulf 1 Mark III 2,925,000
- 14. Hatch 1 Mark I 2,925,000
- 15. Hatch 2 " "
2,925,000
- 16. Hope Creek 1 " "
2,925,000
- 17. LaSalle 1 Mark II 2,935,000
- 18. LaSalle 2 " "
2,935,000 50
- - . , . . - ..%, ,. , . . - . - . , , - y .-, ,, ,-,e , , - - . _ . , y y
i J 2
- 19. Limerick 1 " " $2,935,000
- 20. Limerick 2 " " 2,935,000
- 21. Millstone 1 Mark I 2,925,000
- 22. Monticello " " 2,925,000
- 23. Nine Mile Point 1 " " 2,925,000
- 24. Nine Mile Point 2 Mark II 2,935,000
- 25. Oyster Creek Mark I 2,925,000 Peach Bottom 2 " "
- 26. 2,925,000
' 27. Peach Bottom 3 " " 2,925,000
- 28. Perry 1 Mark III 2,925,000
- 29. Pilgrim Mark I 2,925,000
- 30. Quad Cities 1 " "
2,925,000 . 31. Quad Cities 2 " " 2,925,000
- 32. River Bend 1 Mark III 2,925,000
- 33. Susquehanna 1 Mark II 2,935,000
- 34. Susquehanna 2 " "
2,935,000
- 35. Vermont Yankee Mark I 2,925,000
- 36. Washington Nuclear 2 Mark II 2,929,000 Other Reactors:
- 1. Big Rock Point GE Dry Containment 2,925,000
- 2. Yankee Rowe Westinghouse PWR 2,970,000 Dry Containment
- 3. Rancho Seco- B&W PWR-Dry Containment 2,974,000
- 4. Three Mile Island 2 B&W PWR-Dry Containment 2,981,000 The "Other Reactors" listed in Table V have not been 51
included in the fee base because historically they have been granted either full or partial exemptions from the annual fees. With respect to Big Rock Point and Yankee Rowe, the Commission in this final rule hereby grants partial exemptions form the FY 1992 annual fees based on requests filed with the Commission in accordance with S 171.11. The total amount of $ to be paid by the 200 licensees has been subtracted from the total amount to be assessed operating reactors as a-surcharge. The Commission, in this final rule, hereby grants full exemptions for Rancho Seco and Three Mile Island 2 based on the fact that these reactors'are. either permanently or prematurely shutdown and do not intend to operate in the future. Paragraph (b) (3) is revised to change the fiscal year references from FY 1991 to FY 1992. Paragraph (c) (2) 'is amended to show the amount of the surcharge for FY 1992, which is added to the base annual fee for each operating power reactor shown in Table V. This surcharge recovers those NRC budgeted costs that are not directly or solely attributable to operating power reactors, but nevertheless must be recovered to comply with the l l requirements of the Public Law. The Commission has continued its previous policy decision to recover these costs from operating power reactors. i h
.The FY 1992 budgeted costs related'to the' additional charge and the amount of the charge are calculated as follows:
52
FY 1992 Budgeted Costs ' Catecorv of Costs ($-In Millions)
- 1. Activities not attributable to an existing NRC. licensee or class of licensee:
- a. reviews for DOE /DOD reactor $4.1 projects, West. Valley Demonstration Project, DOE Uranium Mill Tailing Radiation Control Act (UMTRCA) actions;
- b. international cooperative safety 7.9 ;
program and international safeguards activities;
- c. 60%'of-low level waste disposal 5.8-generic activities; and
- d. uranium enrichment' generic activities. .7
- 2. Activities not assessed Part 170 licensing and inspection fees or Part 171 annual fees based-on Commission policy:
- a. activities associated with 6.6 nonprofit educational institutions; and
- b. costs not recovered from Part 171 5.5 for small entities.
Subtotal Budgeted Costs .$30.6 Less. amount to,be assessed to-small older reactors with partial exemption-under Part 171 -- Total Budgeted-Costs $ The annual additional charge is determined as follows:- l Total budaeted costs = $30.6 million = $281,000 per Total number of operating -109- operating power power _ reactors- reactor. On the basis of this calculation, an operating power. l l reactor, Beaver Valley 1, for example, would pay a base annual-ree of $2,970,000 and an additional charge of $281,000 for a l- 53' { 1
. - - . - -. . . .. - _ . . . .. .. . ~ . . - . . . - -
total ~ annual fee of $3,251,000 for FY 11992. Paragraph (d)'is revised to show, in summary form, the amount of the total FY 1992 annual fee, including the surcharge, to be assessed for each major type of operating power reactor. < Paragraph (e) is revised to.show-the amount-of.the FY.1992 annual fee for non-power (test and research) reactors. In FY 1992, $557,000 in costs are attributable 1to those commercial and Federal government licensees that are licensed to operate test and research reactors. Applying these costs uniformly to those nonpower reactors which are not exempt from fees results in an annual fee of $55,700 per operating license. Section 171.16 Annual fees: Materials Licensees, Holders of Certificates of Compliance, Holders of Sealed Source and Device Registrations, Holders of Quality Assurance Program' Approval's,_ and Gevernment agencies licensed by the NRC. The introductionLto paragraph-(c)-is being repeated in this -
. final rule for convenience. The change in this paragraph occurred as a part'of the final rule published on April 17, 1992
_(57 FR 13625) relating to reduced annual 1 fees.for certain small
- entities. Paragraph (c) (4) is revised to-indicate that~the
. maximum annual fee per licensed category is-$1,800 for a small z
-entity inRFY 1992.
Paragraph (d) is revised to reflect the FY 1992 budgeted. i L 54'
costs for materials licensees, including Governmen+ agencies licensed by the NRC. These fees are necessary to recover the FY 1992 generic costs totalling $50.8 million applicable to fuel facilities, uranium recovery facilities, holders of transportation certificates and QA program approvals, and other materials licensees, including holders of sealed source and device registrations. Tables VI and VII show the NRC program elements and resources that are attributable to fuel facilities and materials users, respectively. The costs attributable to the uranium recovery class of licensees are those associated with uranium recovery licensing and inspection. For the uranium recovery l class of licenses, the current Category 2.A(2) for Class I l facilities is further divided into Class I and Class II facilities. Class II facilities are those solution mining l licensees, primarily in-situ and heap leach facilities, which do not generate uranium mill tailings. The NRC has reexamined the uniform allocation of costs to Class I facilities in the current rule to determine whether there is a significant difference between the regulatory services provided to operating in-situ facilities that do not generate mill tailings as compared to other licenrees in Class I. The NRC is dividing the current Class I facilities into two classes to differentiate between those facilities that generate uranium mill tailings and those facilities that do not generate uranium mill tailings because there are generic regulatory activities (e.g., Appendix A to 10 CFR Part 40) that are necessary to regulate uranium mill 55
e tailings. l For transportation, the costs are those budgeted for transportation research, licensing and inspection. Similarly, j the budgeted costs for spent fuel storage are those for spent t fuel storage research, licensing and inspection. a J b 4 i + 5 i i l I 5 a I a a f 56 f
, ~. . - , _ _ _ . , . -,
~.- . . . - - - - . .- . .- - . . . . . - . - . . - . . . . - - . -
( - ... d Table VI ALLOCATION OF NRC FY 1992 BUDGET To FUEL FACILITY BASE FEESV l Total Allocated to Program Element Fuel Facility
- Program Progrvn Support- Support
$,K FTE 'S,K FTE NUCLEAR SAFETY RESEARCH Environmental Policy and $ 2, 67 5 '. 8.S $180 . 6' -
- . Decommissioning.
NSR PROGRAM TOTAL $180 .6 i NUCLEAR MATERIAL & LOW LEVEL WASTE SAFETY'& SAFEGUARDS REGULATION Fuel Facilities Lic./ Inspections $2,460 '39.1 $1,260 27.2 Event Evaluation. -- 25.0 -- 3.6-Safeguards Licensing / Inspection 665 21.9 615 16.7 j Policy, Threat and Event Assessment 525 '13.2 45 .6 l l Decommissioning 1,000 28.1 54 4.7 l NMLLWSSR PROGRAM TOTAL $ 1, 9 7_4 - -52.8
...... ======
' TOTAL- $2,154 53.4 TOTAL BASE FEE AMOUNT ALLOCATED To FUEL FACILITIES $13.6 millionU LESS PART 170 FUEL FACILITY FEES. 3.1 million i ______.
PART 171 BASE FEES FOR FUEL FACILITIES $10.5 million 1/ Base annual' fee includes all costs attributab'e=.to-the. l fuel facility class-of licensees. The base fee does not= include-costs
-allocated to fuel facilities for policy-reasons ~.
2/ Amount is'obtained:by multiplying the direct FTE times the rate per FTE and. adding the program support funds.-
~
57
- . - - ., _ -..__._._._._2___.._c._.._ ._ _ _ -, . .
i Table VII ALLOCATION OF FY 1992 BUDGET TO MATERIAL USERS BASE FEESM Allocated to Total Materiale Users Program Program Support Support
$,K FTE S,K FTE i
NUCLEAR SAFETY RESEARCH MISSION AREA Human Factors .$5,750 5.2 $180 .3 Radiation Protection / Health Effects 6,285 17.5 3,677 13,3 TOTAL S3,857 13.6 NUCLEAR MATERIAL & LOW LEVEL WASTE SAFET & SAFEGUARDS REGULATION Licensing / Inspection of Materials $2,190 110.5 S1,971 99.5 Users l l Event Evaluation -- 18.2 -- 13.1 l Decommissioning 1,000 28.1 446 15,3 NMLLWSSR PROGRAM TOTAL S2,417 127.9 SPECIAL AND INDEPENDENT REVIEWS, INVESTIGATIONS, AND ENFORCEMENT Operational Data Analysis (PE) $100 2.0 TOTAL 56,374 143.5 l BASE AMO(JNT ALLOCATED To MATERIALS USERS ($,M) S37.1 millionU l LESS PART 170 MATERIAL USERS FEES .55,0 million PART 171 BASE FEES FOR MATERIAL USERS $32.1 million II Base annual fee includes all costs attributable to the materials class of licensees. The base fee does not include costs allocated to materials licensees for policy reasons. 2/ Amount is obtained by multiplying the direct FTE times the i rate per FTE and adding the program-support funds. 59
The allocation of the NRC's $10.5 million in budgeted costs to the individual fuel facilities is based, as in FY 1991, primarily on the conferees' guidance that licensees who require the greatest expenditure of NPC resources should pay the greatest ] annual fee. Because the two high-enriched fuel manufacturing facilities possess strategic quantities of nuclear materials, more NRC generic safety and safeguards costs (e.g., physical security) are attributable to these facilities. Using this approach, the base annual fee for each facility is shown below. Annual Fee ($ in Thousands) Hioh Enriched Fuel Safecuards Safety Total Nuclear Fuel Services S.~.,148 $1,147 $2,295 Babcock and Wilcox _L.148 1.147 2.295 Subtotal $2,296 $2,294 $4,590 Low Enriched Fuel Advanced Nuclear Fuels $157 $558 $715 Babcock and Wilcox 157 558 715 General Electric 157 558 715 Westinghouse 157 558 715 Combustion Engineering 157 558 715 (Hematite) Combustion Engineering 157 558 715 (Windsor) Subtotal $942 $3,348 $4,290 59
Mf6 Conversion Allied Signal Corp. $-- $424 $424 Sequoyah Fuels Corp. -- 424 . 424 Subtotal $-- $848 $848 other fuel facilities (9 facilities at $81,000 --
$729 $729 each)
Total $3,238 $7,219 $10,457 The allocation of the costs attributable to uranium recovery is also based on the conferees' guidance that licensees who require the greatest expenditure of NRC resources should pay the greatest annual fee. It is. estimated _that approximately 60 percent of the $2.7 million for uranium-recovery is attributable to uranium mills (class I facilities). 'Approximately 20 percent of the $2.7 million for uranium recovery is attributable to those solution mining licensees who do not-generate uranium mill tailings (Class II facilities). The remaining 20 percent would be allocated to the other uranium recovery facilities-(e.g.
~
extraction of metals and rare earths). .The resulting_annualifees for each class of licensee are: Class I facilities $238,700 Class II facilities $104,300 Other facilities $84,600 For spent fuel storage licenses, the generic costs of
$472,000 has been spread uniformly to those licensees who hold-60
. . , .. - - _ _ - . . _ . . . . _ . . _ _ _ . -...... .._ _ -.., -- ....__. _ . ,_.m. . _ . _ . _ . . _ .
1 1 specific or general licenses for receipt and storage of spent fuel at an ISFSI. This results in a proposed annual fee of
$118,000.
To equitably and fairly allocate the $32.1 million 4 attributable to the approximately 7,100 diverse material users and registrants, the NRC has continued to base the annual fee on l the Part 170 application and riutine inspection fees. Because the application and inspection fees are indicative of the complexity of the license, this approach continues to provide a proxy for allocating the costs to the diverse categories of , licensees based on how much it costs NRC to regulate each category. The fee calculation also continues to consider the inspection frequency because the ic.spection frequency is 4 indicative of the safety risk and resulting regulatory. costs associated with the categories of~ licensees. In summary, the proposed annual fee for each category of license is dessloped as follows: Annual Fee = (Application Fee + Inspection Fee / Inspection i Priority) x Constant + (Unique Category Costs) The constant is the multiple necessary to recover $32.1 million and is 2.9 for FY 1992. The unique costs are any special costs that the NRC has budgeted for a specific category of licensees. For FY 1992, unique costs of approximately $2.5 million vere identified for the medical improvement program which is attributable to medical licensees; about $200,000 in costs 61
i l i. [ were identified as being attrib'utable to radiography licensees;. i and about $100,000~ was identified as being attributable to irradiator licensees. On the average,.the materials annual _ fees e for FY 1992 are increased about 50 percent-above the FY 1991 l annual fees. The reason for t-his significar.t increase is twofold. First, the FY 1992 budgeted amount' attributable to materials licensees is about 20 percent higher than the FY 1991 i amount. Second, the number of licensees to be assessed annual fees in FY 1992 has decreased about 21 percent below the FY 1991
- levels (from about 9,000 to about 7,000). The materials fees must be established at these levels in order to comply-with Public Law 101-508 to recover 100 percent of the NRC's FY 1992 budget authority. A materials licensee may_ pay a' reduced annual fee if the licensee qualifies as a small entity'under the NRC's size standards and certifies that it is a small-entity on NRC
\
l Form 526. l To recover the $5.0 million attributable to the transportation class-of licensees, $1.2 million will be assessed to the Department of Energy (DOE) .to cover all of its transportation casks under Category 18. .The remaining transportation costs-for generic activities ($3.8 million)-are-allocated to holders.of approved QA plans. The annual fee for
-approved QA plans is'-$62,800 for users and fabricators and $1,500-g .Tir users only.
The amount or range of the In( 1992' base annual fees for all materials: licensees is summarized as follows:: 62
.-.-a. ...,a.. -
Materials Licenses Base Annual Fee Rances Catecorv of License Annual Fegg Part 70 - High enriched fuel $2.3 million Part 70 - Low enriched fuel $715,000 Part 40 - UF 6 conversion $424,000 Part 40 - Uranium recovery :$84,600-$238,700 Part 30 - Byproduct Material $440-$16,9001/ Part 71 - Transporta-tion of Radioactive Material $1,500-$62,800 Part 72 - Independent' Storage of Spent Nuclear Fuel $118,000 II Excludes the annual fee for a few military " master" materials licenses of broad-scope issued to Government agencies which is
$300,000.
l Paragraph (e) is amended;to establish-the additional charge which is added.to the base annual fees shown[in Paragraph (d) of. this proposed rule. This surcharge continues to be shown, for convenience, with the applicable: categories in paragraph-(d). The additional charge recovers approximately-40-percent of the NRC budgeted costs of--$3.8 million relating.to LLW disposal L generic activities because 40 percent ofcthe LLW is' generated by. these licensees.- Although these NRC LLWIdisposal regulatory activities are not-directly-attributable-to' materials-licensees, the costs nevertheless must be recovered ^iniorder--to comply with 63
- -.. - ~ . . - . ._...a-,-,.... - .-. .=.--..--...-.-._.-,.--,s
1 e i s i the requirements of-the Public Law. The Commission has continued the previous policy decision to recover approximately 40 percent j of these LLW costs from materials licensees. .The FY 1992-i ! budgeted costs-related to the additional charge and the amount of
- the charge are calculated as follows
FY 1992 i Budgeted-Costs j Catecorv of Costs ($ In Millions) , 1. Activities not attributable to $3.8 i an existing NRC licensee or ! class of licensee, i.e., 40% of i LLW disposal generic activities. -i i i j Of the $3.8 million in budgeted costs shown above for LLW i activities, 50 percent of the amount ($1.9 million) are allocated to fuel facilities included in Part 171 (19 facilities), as
- - follows: $155,100- per HEU, LEU, and UF 6 facility.and $38,800 for each of the other 9' fuel facilities. The remaining 50-percent l- ($1.9 million) are allocated to the material licensees in i
l categories that generate low level waste (1,090 licensees) as i follows: $1,600 per. materials licensee except for those in t- Categories 4A and 17. Those-licensees that generate a ! [ significant amount of low level-_ waste for purposes of.the-calculation of the $1,600-surcharge are-in feeLCategoriesfl.B,- 2.Ci
~
- i. 1.D, 3.A, 3.B, 3.C, 3.L,-3.M, 3.N, 4.B, 4.C, S.B, 6.A, and l
[ 7.B. The surcharge for' Categories 4A and 17, which.also' generate j and/or dispose.of low level waste, is $38,800 for Category 4A-and F
$36,000 for Category 17.
, Of the $6.4 million not recovered from small entities, $.9 i J j 64 i i-'
.i
,, , ~ . , ,,, -
M million is allocated to fuel. facilities and other materials licensees. This results in a surcharge of $160 per category for each licensee that is not eligible for the small entity fee. On the basis of this calculation, a fuel facility, a high enriched fuel fabrication licensee, for example, pays a base annual fee of $2,295,000 and an additional charge of $155,260 for-LLW activities and small entity costs. A medical center with a broad-scope program pays a base annual fee of $12,500 and an additional charge of $1,760, for a total annual fee of $14,260 for FY 1992. i i Section 171.19 Payment. J 4 l This section is revised to give credit for those partial payments made by certain licensees in FY 1992 toward their FY 1992 annual fees. The NRC anticipates that the first, second, I and third quarterly payments for FY 1992 will'have been made-by operating power reactor licensees and some materials licensees before the final rule is effective. Therefore, NRC will credit i payments received for those three quarters toward the total l J l annual fee to be assessed. The NRC will adjust the' fourth l quarterly bill in order to recover the full amount of the revised U e annual fee. As in FY 1991, payment-of the annual fee is due on d 4 the effective date of the rule and-interest--shall accrue from the effective date of the rule. However, interest-.will be waived if 1 payment is received within'30 days'from the effective ~date of-the-rule. 65
- l 1
I
a V. Environmental Impact: Categorical Exclusion The NRC has determined that this final rule is the type of I action described in categorical exclusion 10 CFR 51.22 (c) (1) . Therefore, neither an environmental impact statement nor an
- environmental impact assessment has been prepared for the final regulation.
VI. Paperwork Reduction Act Statement This final rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.). VII. Regulatory Analysis With respect to Part 170, this final rule was developed pursuant to Title V of the Independent Offices Appropriation Act of 1952 (IOAA) (31 U.S.C. 9701) and the Commission's fee 1 guidelines. When developing these guidelines the Commission took l into account guidance provided by the U.S. Supreme Court on March 4, 1974, in its decision of National Cable Television Association. Inc. v. United States, 415 U.S. 36 (1974) and Federal Power Commission v. New Enoland Power Comoany, 415 U.S. 345 (1974). In these decisions, the Court held that the IOAA authorizes an agency to charge fees for special benefits rendered to_ identifiable persons measured by the "value to the recipient" 66
I l l of the agency service. The meaning of the IOAA was further ) l clarified on December 16, 1976, by four decisions of the U.S. l Court of Appeals for the District of Columbia, National Cable Television Association v. Federal Communications Commission, 554 I I F.2d 1094 (D.C. Cir. 1976); National Association of Broadcasters
- v. Federal Communications Commission, 554 F.2d 1118 (D.C. Cir.
1976); Electronic Industries Association v. Federal Communications Commission, 554 F.2d 1109 (D.C. Cir. 1976) and Caoital Cities Communication. Inc. v. Federal Communications Commission, 554 F.2d 1135 (D.C. Cir. 1976). These decisions of the Courts enabled the Commission to develop fee guidelines that are still used for cost recovery and fee development purposes. The Commission's fee guidelines were upheld on August 24, 1979, by the U.S. Court of Appeals for the Fifth Circuit in Mississioni Power and Licht Co. v. U.S. Nuclear Reculatory Commission, 601 F.2d 223 (5th Cir. 1979), cert, denied, 444 U.S. 1102 (1980). The Court held that (1) the NRC had the authority to recover the full cost of providing services to identifiable beneficiaries; (2) the NRC could properly assess a fee for the 4 costs of providing routine inspections necessary to ensure a licensee's compliance with the Atomic Energy Act and with applicable regulations; (3) the NRC could charge fo. costs e incurred in conducting environment'al reviews required by NEPA; (4) the NRC properly included in the fee schedule the costs of uncontested hearings and of administrative and technical support services; (5) the NRC could assess a fee for renewing a license to operate a low-level radioactive waste burial site; and (6) the 67
NRC's fees were not arbitrary or capricious. I With respect to Part 171, on November 5, 1990, Congress passed Public Law 101-508. For FYs 1991 through 1995, Public Law 101-508 requires that approximately 100 percent of the NRC budget authority be recovered. To accomplish this statutory requirement, the NRC, in accordance with 5 171.13, is publishing the final amount of the FY 1992 annual fees for operating reactor licensees, fuel cycle licensees, materials licensees, and holders of Certificates of Compliance, registrations of sealed source and devices and QA program approvals, and Government agencies. This Public Law and the Conference Committee Report specifically state that (1) the annual fees will be based on the Commission's FY 1992 budget of $512.5 million less the amounts collected from Part 170 fees and the funds directly appropriated from the NWF to cover the Commission's high level waste program; (2) the annual fees shall, to the maximum extent practicable, have a reasonable relationship to the cost of regulatory services provided by the l Commission; and (3) the annual fees be assessed to those 1 licensees the Commission, in its discretion, determines can fairly, equitably, and practicably contribute to their payment. l Therefore, when developing the proposed annual fees for operating power reactors the Commission continued to consider the various reactor vendors, the types of containment, and the location of
- the reactor. The annual fees for fuel cycle licensees, materials licensees, and holders of certificates, registrations and approvals and for licenses issued to Government agencies take l
l into account the type of facility or approval and the classes of 68 l
- . - .- . . -. . - - . - . - . - -.-- _~
i e i the licensees, i Part 171, which established annual fees for operating power i reactors effective October-20, 1986 (51 FR 33224; September 18, } 1986), was challenged and upheld in its entirety in Florida Power i I and Licht Comoany v.' United States, 846 F.2d 765 (D.C. Cir. 1988), cert. denied, 490 U.S. 1045 (1989). i Parts 170 and 171, which established fees based on the FY
- 1989 budget, were also legally challenged. As_a result of the
- Supreme Court decision in Skinner v. Mid-American Ploeline Co.,
i 109 S. Ct. 1726 (1989), and the denial of certiorari in Florida Power and Licht, all of the lawsuits were withdrawn. 4 VIII. Regulatory Flexibility Analysis The NRC is required by the Omnibus Budget Reconciliation Act of 1990 to recover approximately 100 percent of its budget-i authority through the assessment of user fees. This Act further requires that the NRC establish a ' schedule of charges that fairly and equitably allocates the aggregate amount of these charges among licensees. 1-This final rule establishes the schedules of fees that~are
- necessary to implement the Congressional mandate for FY 1992.
, The final rule-results in an increase in-the fees' charged to:all licensees, and holders of certificates, registrations, and approvals, including those-licensees who are classified as small 69
4 entities under the Regulatory Flexibility Act. The Regulatory Flexibility Analysis, prepared in accordance with 5 U.S.C. 604, is included as Appendix A to this final rule. 1 IX. Backfit Analysis i The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this final rule and that a backfit analysis is not required for this final rule. The backfit analysis is not required because these amendments do not require the modification of or additions to systems, structures, components, or design of j a facility or the design approval or manufacturing license for a facility or the procedures or organization required to design, 4 construct or operate a facility. M 1 List of Subjects d . 10 CFR Part 170 5 Byproduct material, Import and export licenses, Intergovernmental' relations, Non-payment penalties, Nuclear materials, Nuclear power plants and reactors, Source material, i Special nuclear material, 10 CFR Part 171 ~ Annual charges, Byproduct material, Intergovernmental < relations, Non-payment penalties, Nuclear materials, Nuclear 70
1 I' power plants and reactors, Source material, Special nuclear
; material, Holders of certificates, registrations, approvals, Penalties, v
For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, and 5 , U.S.C. 552 and 553, the NRC is adopting the following amendments l to 10 CFR Parts 170, and 171.
- PART 170 -< FEES FOR FACILITIES, MATERIALS, IMPORT AND EXPORT LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY t ACT OF 1954, AS AMENDED
- 1. The authority citation for Part 170 continues to read ,
i as follows: i l Authority: 31 U.S.C. 9701, 96 Stat. 1051; sec. 301, Pub. L. i 92-314, 86 Stat. 222 (42 U.S.C. 2201w); sec.-201, t3 Stat.- 1242, - t as amended (42 U.S.C. 5841).
- 2. In S 170.3, the definition nonorofit aducatig g -
institution is added to read as follows: L S 170.3 Definitions.
.Nonorofit educational' institution _means a public or non-profit educational institution whose primary-function'is
! education, whose programs are accredited-by a nationally 71 i
.-_a_..-,_-_.._J._,,_-- - _ - . . _ _ , , , _ _ . . , . - ..,._..__-.a.-.___._,__,_,.,_,,._ . . . . _ _ _ , . . ~ . . _ _ - . -
l recognized accrediting agency or association, who is legally authorized to provide a program of organized instruction or study, who provides an educational program for which it awards academic degrees, and whose educational programs are available to the public.
- 3. Section 170.20 is revised to read as follows:
S 170.20 Averace cost Der professional staff-hour. Fees for permits, licenses, amendments, renewals, special projects, Part 55 requalification and replacement examinations and tests, other required reviews, approvals, and inspections under SS170.21 and 170.31 that are based upon the full costs for the review or inspection will be calculated using a professional staff-hour rate equivalent to the sum of the average cost to the agency for a professional staff member, including salary and benefits, administrative support, travel, and certain program support. The professional staff-hour rate for the NRC based on the FY 1992 budget is $123 per hour.
- 4. In S 170.21, the introductory paragraph and Category K are revisud to road as follows:
S 170.21 Schedule of fees for Droduction and utilization facilities. review of standard referenced desian annrovals. l 72 l
t special oroiects, insnections and import and exoort licenses. i Applicants for construction permits, manufacturing licenses, operating licenses, import and export licenses, approvals of ; i facility standard reference designs, requalification and l replacement examinations for reactor operators, and special projects and holders of construction permits, licenses, and other approvals shall pay fees for the following categories of a services. Schedule of Facility Fees (see footnotes at'end of table) Facility Categories and Type of Fees Fees1 / II K. Import and export licenses: Licenses for the import and export only of production and utilization facilities or the import and export only of componsnts for production and utilization facilities issued pursuant to 10 CFR Part 110. I
- 1. Application for import or export of reactors and other facilities and components which must be reviewed by the Commission and-the Executive Branch, for example, actions under 10 CFR 73
. -- - . - . . - . - - - . - - - - - . ~ . - - - -
i i 110.40(b). i i Application-new license . . . . . $8,000 Amendment . . . . . . . . . . . . $8,000 r
- 2. Application for import or export of reactor components and initial exports of other equipment requiring Executive Branch review only, for i example, those actions under 10 CFR 110.41(a) (1)-
(8). Application-new license . .. . . $4,900 ' Amendment . .. . . . . . . .. . . $4,900
- 3. Application for export of componento requiring '
foreign government assurances only.- Application-new license . . .. . .$3,100
- Amendment . . . . . . . . . . . . , . $3,100 i
- l
- 4. Application'for export or import of other facility
-components:and equipment not requiring Commission-review, Executive Branch review or foreign government assurances.
Application-new licensei. . . . . $1,200-Amendment . . . . . . ... . . . .- .$1,200 L i 74 3 I.._.._._ - . _ . . . . . . _ _ _ . _ _ . . _ _ _ . . _ . _ . . . , ,_..;._.._._. .. , _ . . _ . . . . . . . _ , _ . _ . _ _ . .. . s _ . _-_ _ . _ , _ . - , . - --
= _ _ _ _ -- -_____ _ _
- 5. Minor amendment of any export or import license to extend the expiration date, change domestic information, or make other revisions which do not require analysis or review.
Amendment . . . . . . . . . . . . . $120 II Fees will not be charged for orders issued by the Commission pursuant to S 2.202 of this~ chapter or for amendments resulting specifically from the requirements of such Commission orders. Fees will be charged for approvals issued pursuant to a specific exemption provision of the Commission's regulations under Title 10 of the Code of Federal Regulations (e.g. SS 50.12, 73.5) and any other sections now or hereafter in effect regardless of whether the approval is in the form of a license amendment, letter of approval, safety evaluation report, or other form. t Fees for licenses in this schedule that are initially issued for l less than full power are based on review through the issuance of a full power license (generally full power is considered 100% of the facility's full rated power). Thus, if a licensee received a low power license or a temporary license for less than full power and subsequently receives full power authority (by way of license amendment or otherwise), the total costs for the license will be determined through that period when authority'is granted for full l power operation. If a situation arises in which the Commission determines that full operating power for a particular facility should be less than 100% of full rated power, the total costs for 75
the license will be at that decided lower operating power level and not at the 100% capacity. 2/ Full cost fees will be determined based on the professional l staff time and appropriate contractual support services expended. For those applications currently on file and for which fees are determined based on the full cost expended for the review, the professional' staff hours expended for the review of the application up to the effective date of this rule will be determined at the professional rates established for the June 20, 1984, January 30, 1989, July 2,_1990, and July 10, 1991 rules, as appropriate. For those applications currently on file for which review costs have reached an applicable fee ceiling established by the June 20, 1984, and-July 2, 1990, rules but are still pending completion of the review, the cost incurred after any applicable ceiling was reached through January 29o 1989, will not , be billed to the applicant. Any professional staff-hours expended above those ceilings on or after January 30, 1989, will ' I
- be assessed-at the applicable rates established by S 170.20, as l -
e
- appropriate, except for topical reports whose costs exceed I
l $50,000. -Costs which exceed $50,000-for each topical report, i amendment, revision-or supplement to a topical report completed or under review'from-January,30, 1989, through
- August-8, 1991, will not be billed to-the' applicant. Any professional hour;s expended on or=after August 9, 1991, wjll be assessed at the rate established in S 170.'20. In no event will the total review costs be less than twice the hourly' rate-shown 76
_; ._ _ _._ . _ mi . ._._, _,-.a_,,_.a_,.. , , , - ,--_,.a..,_.
_- . _ . . _- _ _- .__ _ _ . - . _ _ . - _ . _ _ _ _ _ _ - - - . . _ . _ _ . .. _ = _ l l l l in S 170.20. l
- 5. Section 170.31 is revised to read as follows:
! S 170.31 Schedule of fees for materials licenses and other i reaulatory_ services. includina insoections. and imDort and export licenses. Applicants for materials licenses, import and export licenses, and other regulatory services and holders of materials licenses, or import and export licenses shall pay fees for the following categories of services. This schedule includes fees for health and safety and safeguards inspections where , applicable, l l l l l 77
~ _ _ . _ _ _ _ _ _ . . . _ __._. _ _ . _ _ . . _ _ __ . _ _ _ _ _ . _ . . . . - _ _ . _ - ._ _ _ _ . _ _ SCHEDULE OF MATERIALS FEES (See footnotes at end of table) Cateaory of materials licenses and type of fees1 / %22 2/, 1/
- 1. Special nuclear material:
A. Licenses for possession and use of 200 grams or more of plutonium in unsealed form or 350 grams or_more of contained U-235 in unsealed form or 200 grams or more of U-233 in unsealed form. This includes applications to terminate licenses as well as licenses authorizing possession only: License, Renewal, Amendment . . . . . . Full Cost Inspections: Routine . . . . . . . . . . . . Full Cost Nonroutine .. . . . . . . . . . Full Cost B. Licenses for receipt and storage of spent fuel at an independent spent fuel storage installation (ISFSI): License, Renewal, Amendment . . . . . Full Cost 78
Inspections: Routine . . . . . . . . . . . . Full Cost l Nonroutine . . . . . . . . . . . Full Cost
; C. Licenses for possession and use of special nuclear material in sealed sources contained in devices used 1
in industrial measuring systems, ! including x-ray fluorescence analyzers:l/ i i Application - New license . . . . . . $540 Renewal . . . . . . . . . . . . . . . $540 Amendment . . , . . . . . . . . . . . $410 Inspections: Routine . . . . . . . . . . . . $490 Nonroutine . . . . . . . . . . $1,400 D. All other special nuclear material licenses, except licenses authorizing special nuclear I material in unsealed form in combination that would constitute a critacal quantity, as d defined in S 150.11 of this chapter, for which the licensee shall pay the same fees as those for Category'1A:$/ Application - New license . . . . . . $740 Renewal . . . . . . . . . . . . . . . $740 4 79-
- - - . - . - . . - . - . . . - - - - - - . . . - ..~. - . -.- . __ - - - - - . . . . . . . _ - . - . - - l l i l Amendment . . . . . . . . . . . . . . $250 Inspections: l Routine . . . . . . . . . . . . . $740 l t Nonroutine . . . . . . . . . . . . $860 t E. Licensos for construction and operation of i a uranium enrichment facility. Application'. . - . . - . . . . . . . $125,000-License,_ Renewal, Amendment . . . Full Cost
- Inspection:
Routine . . . . . . . . . . . . . - Full Cost Nonroutine . -, . . . . . . . . . . Full Cost V
- 2. Source material:
I s A. Licenses for possession and use of source material in. recovery' operations such'as milling, in-situ leaching, heap-leaching, refining uranium mill concentrates to
-uranium hexafluoride, ore buying stations,-
ion exchange! facilities and in processing - l-of: ores containing source material for extraction of-metals other than uranium or
' thorium , including licenses authorizing the possession-of byproduct' waste' material (tailings). from source material recovery : -
80' l-l~-+.--,,-,-. ~ , - - - - - - , . .,n . ., ,-
,,..,,,,,,.-n .,,~~.. , , , , .w,-- - , , n n w.- n--w-- n-,, - ,, , -- .,,,,,.,.ar_,.w-n.. .,.,rnre.~.,. , w w- ~ , , ,
operations, as well as licenses authorizing the possession and maintenance of a facility in a standby mode: License, Renewal, Amendment . . . . Full Cost Inspections: Routine . . . . . . . . . . . . Full Cost Nonroutine . . . . . . . . . . Full Cost B. Licenses for possession and use of source material for shielding: Application - New license . . . . . $120 Renewal . . . . . . . . . . . . . . $120 Amendment . . . . . . . . . . . . . $120 Inspections: Routine . . . . . . . . . . . . $310 Nonroutine . . . . . . . . . . $370 C. All other source material licenses: l Application - New license . . . . . $850 Renewal . . . . . . . . . . . ... $800 l Amendment . . . . . . . . . . . . . $480 Inspections: Routine . .. . . . . . . . . . $860 Nonroutine . . . . . . . . . $1,600 81
4
- 3. Byproduct material:
4 A. Licenses of broad scope for possession and use of byproduct material issued pursuant to Parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct i material for commercial distribution: l Application - New license . . . . . $2,500 Renewal . . . . . . . . . . . . . . $1,500 4 Amendment . . . . . . . . . . . . . . $250 Inspections:I/ Routine . . . . . . . . . . . $2,200 Nonroutine . . . . . . . . . . $2,200 B. Other licenses for possession and use of byproduct material issued pursuant to Part 30 of this
- chapter for processing or manufacturing of items containing byproduct material for concercial distribution
Application - New license . . . . . $1,400 Renewal . . . . . . . . . . . . . . $2,500 Amendment . . . . . . . . . . . . . . $590 4 Inspections:1/ Routine . . . . .. . . . . . . $1,100 Nonroutine . . . . . . . . . . $2,100 82 +
, , - - , _ , . - y ._i _ , . ~ , -
C. Licenses issued pursuant to SS 32.72, 32.73, and/or 32.74 of this chapter authorizing the processing or manufacturing and distribution or redistribution of radiopharmaceuticals, generators, reagent kits and/or sources and devices containing byproduct material: Application - New license . . . . . $3,600 Renewal . . . . . . . . . . . . . . $1,500 Amendment . . . . . . . . . . . . . . $490 Inspections: Routine . . . . . . . . . . . $1,500 Nonroutine . . .. . . . . . . . $2,000 D. Licenses and approvals issued pursuant to SS 32.72, 32.73, and/or 32.74 of this chapter authorizing distribution or redistribution of radiopharmaceuticals, generators, reagent kits and/or sources or devices not involving processing of byproduct material: Application - New license . . . . . $1,200 Renewal . . . . . . . . . . . . . . . . $540 Amendment . . . . . . . . . . . . . . $330 Inspections: Routine . . . . . . . . . . . . $860 83
Nonroutine . . . . . . . . . . $1,300 E. Licenses for possession and use of byproduct material in sealed sources for irradiation of , materials in which the source is not removed from its shield (self-shielded units): Application - New license . . . . . . $540 Renewal . . . . . . . . . . . . . . . $510 Amendment . . . . . . . . . . . . . . $270 Inspections: Routine . . . . . . . . . . . . $490 Nonroutine . . . . . . . . . . . $740 F. Licenses for possession and use of less than 10,000 curies of byproduct material in sealed sources for irradiation of materials in which the source is exposed for irradiation purposes: Application - New license . . . . . $1,300 Renewal . . . . . . . . . . . . . . . $430 Amendment . . . . . . . . . . . . . . $370 Inspections: Routine . . . . . . . . . . . . $620 Nonroutine . . . . . . . . . . $1,400 G. Licenses for possession and use of 10,000 curies or more of byproduct material in sealed sources 84
I i for irradiation of materials in which the source j is exposed for irradiation purposes: Application - New license . . . . . $4,900 l
; Renewal . . . . . . . . . . . . . . $2,000 j Amendment . . . . . . . . . . . . . . $490 Inspections:
j Routine . . . . . . . . . . . $1,100 Nonroutine . . . . . . . . . . $1,500 H. Licenses issued pursuant to Subpart A of Part 32 of this chapter to distribute items containing
- byproduct material that require device review to persons exempt from the licensing requirements of 4~
Part 30 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt Crom the licensing requirements of Part 30 of this chapter: l Application - New license . . . . . $2,200 Renewal . . . . . . . . . . . . . . $1,200 Amendment . . . . . . . . . . . . . .. $270 Inspections: 4 Routino . . . . . . . . . . . . $740 Nonroutine . . . . . . . . . . $740 I. Licenses issued pursuant to Subpart A of Part 32 85
of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require device evaluation to persons exempt from the licensing requirements of Part 30 of this chapter, except for specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of Part 30 of this chapter l Application - New license . . . . . $2,800 Renewal . . . . . . . . . . . . . . $1,300 Amendment . . . . . . . . . . . . . .
$370 Inspections:
Routine . . . . . . . . . . . . $490 Nonroutine . . . . . . . . . . . $740 J. Licenses issued pursuant to Subpart B of Part 32 I of this chapter to distribute items containing byproduct material that require sealed source and/or device review to persons generally licensed under Part 31 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under Part 31 of this chapter: Application - New license . . . . . $2,700 Renewal . . . . . . . . . . . . . . .
$620 86
Amendment . . . . . . . . . . . . . . $420 t Inspections: Routine . . . . . . . . . . . . $740 Nonroutine . . . . . . . - . . . . $740 , K. Licenses issued pursuant to Subpart B of Part 32
~
of this chapter to distribute items containing byproduct material or quantities of byproduct material-that do not require sealed source and/or
' device review to persons generally licensed under
.Part 31 of this chapter, except specific licenses
~
authorizing redistribution of items that have been authorized for distribution to persons generally licensed under Part 31 of this chapter: Application - New license . . . . . $2,000 Renewal . . . . . . . . . . . . . . . . $1,000 . Amendment . . . . . . . --. . -_ . - . . . - . $310 l Inspections: Routine . . . . . . . . . . . .
$740 Nonroutine . . . . . - . . . . . . $740 L. Licenses of broad scope _for possession-and use of byproduct material issued pursuant to Parts 30 and--
l 33 of this' chapter for research and development that do not-authorize commercial distribution: Application - New license . . . . . . $2',500 - 87 I f r * + =s ev r e - 's- Fr - m t = wr- ew-
- v v i pv== ** ~ e w *www- v -v- v- -n-r<vw+. t wy vv-~~'-e '**vr =<= - *re4 tw -v se w ee- -e
- r ewr*, - - e w --' *cv - =rr+=w*" --vm e rw v
Renewal . . . . . . . . . . . . . . $2,100 Amendment . . . . . . . . . . . . . .
$540 Inspections:
Routine . . . . . . . . . . . $1,000 Nonroutine . . . . . . . . . . $1,300 M. Other licenses for possession and use of byproduct material issued pursuant to Part 30 of this chapter for research and development that do not authorize commercial distribution: Application - New license . . . . . $1,200 Renewal . . . . . . . . . . . . . .
$1,200 Amendment
. . . . . . . . . . . . . . $670 Inspections:
Routine . . . . . . . . . . . . $860 Nonroutine . . . . . . . . . . $1,000 N. Licenses that authorize services for other licensees, except (1) licenses that authorize only calibration and/or leak testing services are subject to the fees specified in fee category 3P, and (2) licenses that authorize waste disposal services are subject to the fees specified in fee Categories 4A, 4B, and 4C: Application - New license . . . . . $1,500 Renewal . . . . . . . . . . . . . . .
$860 Amendment . . . . . . . . . . . . . .
$430 88
. - - _ - .. - . . _ _ - . ~ - _ . . _ - . _ . - . - _ . -- - - - . . . - .. ._. - ... .- .-.
Inspections: Routine . . . . . . . . . . . . $740 Nonroutine . . . . . . . . . . . $740
- 0. Licenses for possession and use of byproduct ,
material issued pursuant to Part 34 of this chapter for industrial radiography operations: Application - New license . . . . . $3,200 ' Renewal . . . . . . . . . . . . . . $1,900 Amendment . . . . . . . . . - . . . . . $520 Inspections:U Routine . . . . . . . . . . . $1,300 Nonroutine . . . . . . . . . . $2,700 P. All other specific byproduct material licenses, except those in Categories 4A throv'h 9D: Application - New license . . . . . . $540 Renewal . . . . . . . . . . . . . . . $540 Amendment . . . . . . . .. . . . . . $410 Inspections: Routine .. . . . . .. . . . . $1,300 Nonroutine .. . . . . . . . . $1,300 l
- 4. Waste disposal and processing:
89
b i A. Licenses specifically authorizing the receipt of waste byproduct material, source material, or special nuclear material from other persons for the purpose f 4 of contingency storage or commercial land disposal by the licensee; or licenses authorizing contingency storage of low level radioactive waste at the site of nuclear power reactors; or licenses for receipt of waste from other persons for incineration or other treatment, packaging of resulting waste and residues, and transfer of packages to another person authorized to receive or dispose of waste materials - License, renewal, amendment . . . Full Cost Inspections: Routine . . . . . . . . . . Full Cost Nonroutine . . . . . . . . . Full Cost B. Licenses specifically authorizing the receipt of waste byproduct material, source material, or , special nuclear material from'other persons for the purpose of packaging or repackaging the material. The licensee will dispose of the material ' by transfer to another person authorized to receive-or dispose of-the material: - Application - New license ... . - . $3,000 Renewal . . . . - . . .: . .. . . . $2,000 Amendment . . . . .. . . . . . . .- . $210 l 90 t t m,e-- ~ m ie n a v m -; v v ,,s e-m e w w, e ,-m e~- e r- s- +, , m m, v,..,-w-m-r-n ,-em* m e n - -- n- g -,,+w - o - a,-a ~-n. mew <<--,, s , , -~e-,,-w,-+m,:v ,
Inspections: Routine . . . . . . . . . . $2,200 Nonroutino . . . . . . . . . $1,700 C. Licenses specifically authorizing the receipt of prepackaged waste byproduct material, sourco material, or special nuclear material from other persons. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material: Application - New license . . . . $2,000 Renewal . . . . . . . . . . . . . $1,000 Amendment . . . . . . . . . . . . $250 Inspections: Routine . . . . . . e . . . $1,700 Nonroutine . . . . . . . . . $2,200
- 5. Well logging:
A. Licenses for possession and use of byproduct material, source material, and/or special nuclear material for well logging, well surveys, and tracer studies other than field flooding tracer studies: Application - New license . . . . $3,600 Renewal . . . . . . . . . . . . . $2,100 Amendment . . . . . . . . . . . . $580
.91 i
., Inspections: Routine . . . . . . . . . . . $860 Nonroutine . . . . . . . . . . $860 B. Licenses for possession and use of byproduct material for field flooding tracer studies: 4 License, renewal, amendment . . . Full Cost Inspections: i Routine . . . . . . . . . . . $740 1 Nonroutine . . . . . . . . . $1,100
- 6. Nuclear laundries:
A. Licenses for commercial collection and laundry of items contaminated with byproduct material, source material, or special nuclear material: Application - New license . . . . $1,500 Renewal . . . . . . . . . . . . . . $1,500 Amendment . . . . . . . . . . . . . $370 4 Inspections: Routine . . . . . . . . . . $1,300 Nonroutine . .. . . . . - . . $2,000 7 Human use of byproduct, source, or special nuclear material: i l l I 92
A. Licenses issued pursuant to Parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices: Application - New license . . . . $3,600 Renewal . . . . . . . . . . . . . $850 Amendment . . . . . . . . . . . . $460 Inspections: Routine . . . . . . . . . . $1,300 Nonroutine . . . . . . . . . $2,000 B. Licenses of broad scope issued to medical-institutions or two or more physicians pursuant to Parts 30, 33, 35, 40, and 70 of this chapter authorizing research and development, including human use of byproduct material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices: Application - New license . . . . $2,500 Renewal . . . . . . . . . . . . . $2,200 Amendment . . . . . . . . . . . . $390 Inspections: Routine . . . . . . . . . . $1,700 Honroutine . . . . . . . . . $1,900 C. Other licenses issued pursuant to Parts 30,-35, 40, 93-
and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, . 1 source material, or special nuclear material in sealed sources contained in teletherapy devices: Application - New license . . . . $760 Renewal . . . . . . . . . . . . . $1,100 l Amendment . . . . . ' . . . . . . . . $460 Inspections: ' Routine- . . . . . . . . . . $1,100 Nonroutine . . . . . . . . . $1,600 B. Civil defense: A. Licenses for possession and use of byproduct material, source material, or special nuclear material for civil defense activities: Application - New license . . . . . $620 Renewal . . . . . . . . . . .. . . $430 l Amendment . . . . . . . . . . . . . $330 Inspections: Routine . . . . . . . . . . . $740 Nonroutine . . . . . . . . . . $740
- 9. Device, product, or sealed source safety evaluation:
94
A. Safety evaluation of devices or products containing byproduct material, source material, or special nuclear material, except reactor fuel devices, for commercial distribution: Application - each device . . . . $3,500 Amendment - each device . . . . . $1,300 Inspections: Routine . . .. . . . . . . . Full Cost Nonroutine .-. . .--. . . . . Full Cost B. Safety evaluation of devices or products containing byproduct material, source material,- or special nuclear material manufactured in accordance with the unique specifications of, and for use by, a single applicant, except reactor fuel devices: Application - each device . . . . $1,700 Amendment - each device . . , . . $620 Inspections:
-Routine . . . - . . . .. . . .' Full Cost Nonroutine'. .-. . . .. . . Full Cost C. . SafetyLevaluation'of sealed sources containing byproduct' material, source material, car special nuclear material, except reactor fuel, for
-commercial-distribution:
95 l l
l i Application - each source . . . . $740 Amendment - each source . . . . . . $250 l Inspections: Routine . . . . . . . . . . Full Cost Nonroutine . . . . . . . . . Full Cost D. Safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, manufactured in accordance with the unique-specifications of, and for use by, a single applicant, except reactor fuel: Application - each source . . . . . $370 Amendment - each source . . . . . . $120 Inspections: Routine . . . . . . . . . . Full Cost Nonroutine . . . . . . . . Full Cost
- 10. Transportation of radioactive material:
A. Evaluation of casks, packages, and shipping containers: Approval, Renewal, Amendment . . Full Cost < Inspections: Routine . . . . . . . . . . . . Full Cost Nonroutine . . . . . . . . . . Full Cost 96
B. Evaluation of 10 CFR Part 71 quality assurance programs: Application - Approval . . . . . . $250 Renewal . . . . . . . . . . . . . $250 Amendment . . . . . . . . . . . . $250 Inspections: i Routine . . . . . . . . . . . . Full Cost Nonroutine . . . . . . . . . . Full Cost 11. Review of standardized spent fuel facilities: Approval, Renewal, Amendment . . Full Cost Inspections
. . . . . . . . . . Full Cost
- 12. Special projects:
Approvals and preapplication / licensing activities . . . . . Full Cost Inspections
. . . . . . . . . . Full Cost
- 13. A.
Spent fuel storage cask Certificate of Compliance: Approvals .
. . . . . . . . . . . Full Cost Amendments, revisions and supplements
. . . . . . . . . . Full Cost 97
______-- _ - - - - - - - - - - - - - - - - - - ~-
Reapproval . . . . . . . . . . . Full Cost B. Inspections related to spent fuel storage cask Certificate of Compliance: Routine . . . . . . . . . . . . . Full Cost Nonroutino . . . . . . . . . . . Full Cost C. Inspections related to storage of spent fuel under S 72.210 c f this chapter: Routine . . . . . .- . . . . . . . Full Cost Nonroutine . . . . . . . . . . . Full Cost
- 14. Byproduct, source, or special nuclear material licenses l
and other approvals authorizing decommissioning, decontamination, reclamation, or site restoration activities pursuant to 10 CFR-Parts 30, 40, 70, and 72 of this chapter: Approval, Renewal, Amendment . . Full Cost Inspection: Routine . . . . . . . . . . Full Cost l Nonroutine . . . . . . . . Full Cost
- 15. Import and Export licenses:
Licenses issued pursuant to 10 CFR Part 110 of this chapter 98
4 for the import and export only of special nuclear materrti source material, byproduct material, heavy water, tritium, or nuclear grade graphite. 1 A. Application for import or export of HEU and other materials which must be reviewed by the Commission and j the Executive Branch, for example, those actions unde-10 CFR 110.40(b). Application-new license . . . . . $8,000 l. Amendment . . . . . . . . . . . . $8,000 k s B. Application for import or export of special nuclear material, heavy water, nuclear grade graphite, tritium, and source material, and initial exports of materials requiring Executive Branch review ocly, for example, I those actions under 10 CFR 110.41(a) (1)-l8) . d Application-new licer.se . . . . . $4,900 Amendment . . . . . . . . . . . . $4,900 3 C. Application for exp,-P of routine reloads of LEU ruactor fuel requiring foreign government assurances only. 4 Application-new license . . . . . $3,100 Amendment . . . . . . . . . . . $3,100 3
J D. Application for export or import of other materials not , requiring Commission review, Executive Branch review or 4 foreign government assurances. Application-new license . . . . . $1,200 j Amendment . . . . . . . . . . . . $1,200 E. Minor amendment of any export or import license to extend the e;piration date, change domestic information or make other revisions which do not require analysis or review. j Amendment . . . . . . . . . . . . . $120 1
- 16. Reciprocity:
7- it State licensees who conduct activities in a non-Agreel:_ar ' t . te uncle,r the reciprocity provisions of 10 CFR e 150.20 l Application (each filing of Form 241) . . . . . . . . . . . $640 Renewal . . . . . . . . . .. . . . N/A Amendment . . . . . . . . . . . . N/A Inspections: Routine and nonroutine . . . Fees as specified in appropriate fee categories in this section. 100 r
-. . . . - - . . - _ . - - - . - . . . . - - - . - . - ~ .
e 1/Tvoes of fees - Separate charges as shown in the schedule will be assessed for preapplication consultations and reviews and applications for new licenses and approvals, issuance of new licenses and approvals, amendments and renewals to existing-licenses and approvals, safety evaluations of sealed sources;and devices, and inspections. The following guidelines apply to these charges: (a) Acolication fees - Applications for new materials licenses and approvals; applications to reinstate expired licenses and approvals except those subject to fees assessed at full cost;.and applications filed:by Agreement: State licensees to register under the general license provisions of 10 CFR 150.20, must be accompanied by the prescribed application fae-for each category, except that: 1) applications for licen s es . covering. more than one fee category of special nuclear. material or source material must be accompanied by the prescribed. application fee for the highest fee category; and 2)Lapplications'for' licenses
.under Category-1E must be accompanied by-aniapplication fee of
$125,000.
.(b) License /acoroval/ review fees - Fees for applications for new licenses andLapprovals and for preapplication consultations and reviews subject _to: full. cost' fees (fee l Categories 1A,-1B,-1E, 2A, 4A, 5B, 10A, 11,:12, 13A, and 14) are 1
101
.__ - _.u_ __.. . - . , _ _ . .a _ . . _.-,_,;.-.._. 1,.,,_-,- . , _ . _ . _ . _ . -
--5+'. .,W- _ 5 M 5 a.a4 d. me=w--aw A4-4a do w .,a _
,J.a;_--a_.4s.+_,.+J_..sa.,,4_49.4An-w.- 44 ,.,4 ~_w S a. A pi l aAuf 4.4 a,J.,. ,_
i i i. f. j due upon notification by the Commission in accordance with l - i S 170.12(b), (e) and (f). i I (c) REDgwal/reaooroval fees - Applications for renewal of l licenses and approvals must be accompanied by the prescribed { renewal fee for each category, except'that fees for applications I l for renewai cf licenses and approvals subject to full cost fees (fee Categorie0 1A, 1D, 1E, 2A, 4A, 5B, 10A, 11, 12, 13A, and 14)_ l are due upon notification by the Commission in accordance with I. j $ 170.12(d). i 4 (d) Amendment fees - l I j (1) Applications for amendments to licenses and approvals, ! except those subject to' fees assessed at full costs, must be i i accompanied by the prescribed amendment fee for each license ! affected. An_ application for an. amendment-to a license or l l approval classified in more than.one fee category _must be !- accompanied by the prescribed amendment fee for the category affected-by the amendment lunless.the1 amendment is applicable.to two_or more fee categories in which case _the amendment-fee-for l-q the highest fee category would_ apply. For'thoseilicenses and-4
- approvals subject to full, costs (fee' Categories 1A,--1B, 1E, 2A, 4A, 5B, 10A,.11, 12, 13A,fand 14),_ amendment fees are'due upon l
- notification.by the Commission in accordance with 5 170.12(c).
l , (1) An application'for amendment to a materials license or-t , i approval ~that_would place the license-or approval in a higher. fee 102
, . . _ . , .. . ~_ , .___ -.__ .._ .._ _, __ _. ._ . . _ ._ -... .....-_.a._ .--._ ..._, _
category or add a new fee category must be accompanied by the prescribed application fee for the new category. i (3) An application for amendment to a license or approval that would reduce the scope of a licensee's program to a lower fee category must be accompanied by the prescribed amendment fee for the lower fee category. 4 f (4) Applications to terminate licenses authorizing small materials programs, when no dismantling or decontamination procedure is required, are not subject to fees. (e) Insoection fees - Separate charges will be assessed for each routine and nonroutine inspection performed, including inspections conducted by the NRC of Agreement State licensees who conduct activities in non-Agreement States under the reciprocity provisions of 10 CFR 150.20. Inspections resulting from f investigations conducted by the Office of Investigations and nonroutine inspections that result from third-party allegations
~
are not subject to fees. If a licensee holds more than one materials license at a single location, a fee equal to the highest fee category covered by the licenses will be assessed if the inspections are conducted at the same time, unless the 4 inspection fees are based on the full cost to conduct the inspection. The fees assessed at full cost will be_ determined based on the professional staff time required to conduct the inspection multiplied by the rate established under S 170.20 to which any applicable contractual support services costs incurred 103
will be added. Licenses covering more than one category will be charged a fee equal to the highest fee category covered by the license. Inspection fees are due upon notification by the Commission in accordance with 5 170.12(g). See Footnote 5 for other inspection notes. l 2/Fees will not be charged for orders issued by the Commission pursuant to 10 CFR 2.202 or for amendments resulting specifically from the requirements of such Commission orders. However, fees will be charged for approvals issued pursuant to a-specific exemption provision of the Commission's regulations under Title 10 of the Code of Federal Regulations (e.g., 10 CFR 30.11, 40.14, 70.14, 73.5, and any other sections now or. hereafter in effect) regardless of whether the approval is in the form of a license amendment, letter of approval, safety evaluation report, or other form. In addition to the fee shown, an applicant may be assessed an additional fee for sealed source and device evaluations as shown in Categories 9A through 9D. l l 1/Full cost' fees will ba determined based on.the professional staff time and appropriate contractual support services expended. For'thoseLapplications currently on file:and for which fees-are determined based on the full cost expended for the review,.the professional staff hoursLexpended for the review of'the application up to the effective date of this rule _will-be determined at the: professional rates established-for the June 20,- l 1984, January 30, 1989, July 2,_1990, and July 10, 1991, rules, 104
. . - . . . . . _ . _ . _ . - - _ _ _ _ - , , .- _ _ _ _ , _ _ . , _ . . _ - . . _ . .,. _ . _ _ . - . _ . _ . ~ .
as appropriate. For those applications currently on file-for , which review costs have reached an~ applicable fee ceiling established by the June 20, 1984, and July 2, 1990 rules, but are still pending completion of the review, the cost incurred after any applicable ceiling was reached through January 29, 1989, will not be billed to the applicant'. Any professional staff-hours expended above those ceilings on or aftir January 30,.1989, will be assessed at the applicable rates-established by S 170.20, as appropriate, except for topical' reports whose costs exceed
$50,000. Costs which exceed $50,000 for each topical report, amendment, revision or. supplement to a topical report completed or under review from January 30, 1989, through August 8, 1991, will not be billed to the applicant. Any professional hours -
expended on or after August 9, 1991,-will be assessed at the rate established in S 170.20. In no event will the total review costs be less than twice the hourly rate shown-in S 170.20. l S/ Licensees paying fees under Categories 1A,,1B, and 1E are . not subject to fees under Categories 1C and 1D_for sealed sources I ! authorized in the same license-except'in'those instances.in which- . an application deals only with the sealed sources authorized by the license. . Applicants-for new licenses or renewal.of existing . licenses that cover both byproduct material.and special nuclear material in sealed sources for use in gauging devices will pay the appropriate application or: renewal fee =for fee Category 1C only. l 105
- . . - - _ . . , , . - - . - . , . . ~ . - , . . . . _ . . . . . . . . . . . - . . , . . _ . , - , , , . . . . . . , - . . . .
- 1/For a license authorizing shielded radiographic
{ installations or manufacturing installations at more than one address, a separate fue will be assessed for-inspection of each location, except that if the multiple installations are inspected during a-single visit, a eingle inspection fee will be assessed. i PART 171 -- ANNUAL FEES FOR REACTOR OPERATING LICENSES, AND FUEL CYCLE LICENSES AND MATERIALS LICENSES, INCLUDING HOLDERS OF' , CERTIFICATES OF COMPLIANCE, REGISTRATIONS, AND QUALIFY ASSURANCE
' PROGRAM APPROVALS AND GOVERNMENT AGENCIES LICENSED BY THE NRC.
- 6. The authority citation'for Part 171 is revised to read as follows:
Authority: Sec. 7601, Pub. L. 99-272, 100 Stat. 146, as . amended by sec. 5601, Pub. L. 100-203, 101 Stat.-1330, as amended l by Sec. 3201, Pub. L. 101-239, 103 Stat. 2106 as amended by sec. 6101, Pub. L. 101-508, 104 Stat. 1388, (42 U.S.C. 2213); sec. 301, Pub. L. 92-314,186 Stat. 222 (42 U.S.C. 2201(w)); sec. 201, . i 88 Stat. 1242 as amended (42 U.S.C.'5841).-
- 7. In S 171.5-theldefinition nonorofit= educational institution is addedito read as follows:
b S171.5 Definitions. 106
- _ ~
Nonprofit educational institution means-a public or nonprofit educational institution whose primary function is education, whose programs are accredited by a nationally recognized accrediting agency or association, who is legally authorized to provide a program-of organized-instruction or study, who_provides an educational program for which it awards academic degrees, and whose educational programs are:available_to . the public.
- 8. In S 171.11, paragraph-(b) is revised-to read as-follows:
4 171.11 Exemotions. l I (b) The Commission may, upon application by an' interested person, or upon its own initiative, grant such exemptions from the requirements of this part as it determines are authorized by. law or otherwise-in'the public interesti ' Requests-for exemption i; must be filed with1the NRC within 90 days from.the effective date i of the final rule establishing the annualifees for-which the-exemption is sought in order-to be considered. Absent extra--
' ordinary circumstances, any exemption requests. filed beyond that date would not be considered. The. filing of_an exemption request 107 l
l
does not extend the-date-cn which the bill-is payable, only the 1 timely payment in full ensures avoidance of interest and penalty charges. If a partial or full exemption is granted, any overpayment will be refunded.
- 9. In S 171.15, paragraphs (b) (3) , (c) (2) , (d), and (e) are revised to read-as follows:
i 171.15 Annual Fees: Reactor coeratina licenses. (b) *** l (3) Generic activities required largely for NRC to regulate power reactors, e.g., updating Part 20-of~this chapter, or operating the Incident. Response. Center. The base FY 1992 annual fees for each operating power' reactor subject to' fees under this section and due before September 30, 1992, are shown in paragraph (d) of this section..
"(c) ***
(2) The FY 1992 surcharge to be added'to'each operating }' o power reactor is $281,000. This amount is calculated by--dividing the. total cost for these activities'($30.6 million) by the-number
.108
. . - . . , . - . . - . - - , . ~ . - - - . - . - . _ . - , . . , _ . . . . . - . - - . . ~ . . . - . . . , . - . . -
of operating power reactors (109).
-(d) The FY 1992 Part 171 annual fees for operating power reactors and are as follows:
Part 171 Annual Fees by Reactor Category 1 (Fees in Millions) Base Added Total Estimated Reactor Vendor Number- Egg- Charae _ Egg Collections Babcock /Wilcox 7 $2.981 .261 -$3.262 $22.8 Combustion Eng. 15 2.965 .281 3.246 48.7 , GE Mark I 24 2.925 .281 3.206 76.9 i GE Mark II 8 2.935' .281 3.216 25.7 GE Mark III- 4 2.925 .281 3.206 12.8 Westinghouse 51 2.970 .281 3.251 165.8
' Totals $352.7-I Fees assessed by reactor vendor will vary for plants west of the Rocky Mountains and for Westinghouse plants with ice condensers.
(e) The annual fees for licensees: authorized'to operate a nonpower (test and research): reactor licensed under Part 50 of this chapter except for :those reactors exempted from . fees under S 171.11(a), are as follows: Research reactor $55,700 Test reactor $55,700 109.
. _ _ _ , . . . _ . , , _ . _ , . . . _ _ . _ . . , _ . _ . _ . ~ , , _ , . _ _ . . _ , _ ,.., .-.,_. -.- _ ,_ _ _
; 10. In S 171.16, the introductory text of paragraph (c) and paragraphs (c) (4 ) , (d), and (e) are revised to read as follows:
1 +
- S 171.16 Annual Fees
- Materials Licensees. Holders of Certificates of Compliance. Holders of Sealed Source and Device Recistrations. Holders of Ouality Assurance Procram Acorovals and Government acencies licensed by the NRC.
J k ***** } (c) A licensee who is required to pay an annual fee under 4 this section may qualify as a small entity. If a licensee qualifies as a small entity and provides the Commission with the 4 proper certification, the licensee may pay reduced annual fees-for FY 1992 based on gross annual receipts, or for small governmental jurisdictions, population density, as follows: Small Businesses and Small Maximum Annual Fee Not-For-Profit Oraanizations Per Licensed Cateaory R oss Annual Recelets) 9?5n.000 to $3.5 million $1,800 , Less than $250,000 $400 Private Practice Physicians (Gros 3 Annual Receiots) i $250,000 to $1.0 million $1,800 Less than $250,000 $400 small Governmental Jurisdictions (Population) 20,000 to 50,000 $1,800 Less than 20,000 $400 110
l (4) The maximum annual fee (base annual fee plus surcharge) a small entity is required to pay for FY 1992 is $1,800 for each category applicable to the licensc(s). (d) The FY 1992 annual fees for materials licensees and holders of certificates, registrations or approvals subject to fees under this section are as follows: SCHEDULE OF MATERIALS ANNUAL FEES AND FEES FOR GOVERNMENT AGENCIES LICENSED BY NRC (See footnotes at end of table) Catecorv of materials licenses Annual Fees ,1 2, 3
- 1. Special nuclear material:
A.(1) Licenses for possession and use of U-235 or plutonium for fuel fabrication activities. Hioh Enriched Fuel License No. Docket No. Babcock and Wilcox SNM-42 70-27 $2,295,000 Nuclear Fuel Services SNM-124 70-143 2,295,000 Low Enriched Fuel Advanced Nuclear Fuels SNM-1227 70-1257 $715,000 B&W Fuel Company SNM-1168 70-1201 715,000 Combustion Engineering (Hematite) SNM-33 70-36 715,000-Combustion Engineering 111
(Windsor) SNM-1067 70-1100 715,000 General Electric Ccmpany SNM-1097 70-1113 715,000 Westinghouse Electric Co.SNM-1107 70-1151 715,000 Surcharge . . . . . . . . . $155,260 A.(2) All other special nuclear materials licenses not included in 1. A. (1) above for possession and use of 200 grams or more of plutonium in unsealed form o' 350 grams or more of contained U-235 in unsealed form or 200 grams or more of U-233 in unsealed form. $81,000 Surcharge . . . . . . . $38,960 B. Licenses for receipt and storage of spent fuel at an independent spent fuel storage installation (ISFSI). $118,000 l Surcharge . . . . . . . . $1,760 l C. Licenses for possession and use of special nuclear material in sealed sources contained in devices used in industrial measuring systems, including x-ray fluorescence analyzers. $1,700 112
Surcharge . . . . . .. . $160 D. All other special nuclear material licenses, except licenses authorizing , special nuclear material in unsealed form in combination that would' constitute P
- a critical quantity, as defined in S 150.11 of this chapter, for which the licensee shall pay the same' fees as those for Category.1.A.(2).- $2,400 Surcharge . . . . . . . . $1,760 E. Licenses for the operation of a uranium enrichment-facility. $ N/A11I
- 2. Source material:
L i A.(1) Licenses for possession and use of source material for refining-uranium mill concentrates to uranium hexafluoride. $424,000 Surcharge . .. . . . . . . . . . $155,260 l ! (2) Licenses: for possession and. use of J113 .
b i 4 source material in recovery operations-such as milling, in-situ leaching , [ heap-leaching, are buying stations, i i ion exchange facilities and'in processing of ores containing source material for a j extraction of metals other than uranium or thorium, including licensos authorizing _ 1 }. the possession of byproduct waste material-i 2 j (tailings) from source material recovery ! operations, as well as licenses authorizing-1 the possession and maintenance of a facility in a standby mode. i i 1 Class I facilities' . . . . . . . $238,700 1
- j. Class II facilities 4'.. . . . . . . $104,300 l
i i [ Other facilities. . ... .- . . $84,600 i \ - ! Surcharge . . . . _ . . - . . - $160 i 4 B. Licenses which authorize only'the possession, use and installation of 1- _ source material for shielding.- $440 i Surcharge .-. . . . . . . $160 ,i-114 4
. , . . . . . * , , .n,. ,-- . . . . , , . . , . . . .,,.n, ,, ,, ..,,,.n. , , , , . . . . , , - - . , - - - - , . , , , . - , , . . - ,..._.e
l 1 l l C. All other source material licenses. $3,100 i Surcharge . . . . . . . . $1,760
- 3. Byproduct material:
A. Licenses of broad scope for possession and use of byproduct material issued pursuant to Parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. $9,700 Surcharge . . . . . . . . $1,760 B. Other licenses for possession and use of byproduct material issued pursuant to Part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribu' tion. $4,700 Surcharge . . . . . . . . $1,760 C. Licenses issued pursuant to SS 32.72, 32.73, and/or 32.74 of this chapter authorizing the processing or manufacturing and distribution or 115
redistribution of radiopharmaceuticals, generators, reagent kits and/or sources and devices containing byproduct material. This category also includes the possession and use of source material for shielding authorized pursuant to Part 40 of this chapter when included on the same license. $11,200 Surcharge . . . . . . . . $1,760 D. Licenses and approvals issued pursuant to SS 32.72, 32.73,.and/or 32.74 of this chapter authorizing distribu-tion or redistribution.of radiophar-maceuticals, generators, reagent kits and/or sources or devices not involving processing of byproduct material. This category-also includes the possession and use of source material for shielding authorized pursuant to-Part 40 of this chapter when included on the same license. $4,000 Surcharge . . .-. ._ . . . .$160
-116
- - _ _ _ - _ - - _ = _ _ _ _ _ _ _ _ _ _ _ _ __ _
E. Licenses for possession and use of byproduct material in sealed sources for irradiation of materials in which the source is not removed from its shield (self-shielded units). $2,600 Surcharge . . . . . . . . $160 F. Licenses for possession and use of less than 10,000 curies of byproduct material in sealed sources for irradiation of materials in which the source is exposed for irradiation purposes. $4,700 Surcharge . . . . . . . . $160 i l G. Licenses for possession and use of 10,000 curies or more of byproduct' l material in sealed sources for irradiation of materials 1 which the source is exposed for irradiation purposes. $16,900 Surcharge . . . . . . . . $160 H. Licenses issued pursuant to Subpart A of Part 32 of this chapter to distribute items containing byproduct material that 117
require device review to persons exempt from the licensing requirements of Part 30 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of Part 30 of this chapter. $6,500 Surcharge . . . . . . . . $160 I. Licenses issued pursuant to Subpart A of Part 32 of this chapter to distribute items containing byproduct material ur quantities of byproduct material that do not require device evaluation to persons exempt from the licensing requirements of Part 30 of this chapter, except for specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from-the licensing requirements of Part 30 of this chapter. $7,800 Surcharge . . . . . . . . $160 J. Licenses issued pursuant to Subpart B of Part 32 of this chapter to distribute l 118
items containing byproduct material that require sealed source and/or device review to persons generally licensed under Part 31 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under Part 31 of this chapter. $7,700 Surcharge . . . . . . . . $160
'T K. Licenses issued pursuant to Subpart B of Part 31 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require sealed source and/or device review to persons generally licensed under Part 31 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under Part 31 of this chapter. $6,200 Surcharge . . . . . . . . $160 L. Licenses of broad scope for possession 119
_ . _ _ _ _ - _ _ _ _ _ _ _ _ _ _ I
4 a , and use of byproduct material 11ssued pursuant-to Part 30 and 33aof this [ chapter for research and development i that do not authorize commercial 4
- distribution. $7,600- ,
i i e Surcharge . . . . . . . . $1,760 i I- M. Other licenses.for possession and use ! of byproduct material issued pursuant to Part 30 of this chapter for research and development that do not authorize commercial distribution. $3,800
- Surcharge . . . . . . . . . . $1,760 i r N. Licenses that authorize services for other licensees, _except (1)-licenses-that -
authorize only calibration and/or leak testing services are subject to the fees specified in fee Category 3P,land-(2) licenses that-authorize waste disposal services are subject _to the fees specified l in fee _ Categories 4A, 4B,-and-4C'. $4,600
-Surcharge . . . . ... . :$1,760 O. Licenses for-possession and use of.
120 !~ -2
~
byproduct material issued pursuant to Part 34 of this chapter for industrial radiography operations. This category also includes the possession and use of source material for shielding authorized 4 pursuant to Part 40 of this chapter when authorized on the same license. $13,200 Surcharge . . . . . . . . $160 P. All other specific byproduct material licenses, except those in categories 4A through 9D. -$2,100 Surcharge ... . . . . . . $160
- 4. Waste disposal and processing:
A. Licenses specifical'ly authorizing the receipt of waste byproduct material, source. material, or special nuclear material from other persons for the purpose of contingency-storage or commercial landi disposal by the licensee; or licenses authorizing contingency storage of low level-radioactive waste at-the site of
-121
nuclear power reactors; or licenses
'for receipt of waste from other persons for incineration or other
-treatment, packaging of resulting waste and residues, and transfer of packages to another person
-authorized.to receive or_ dispose of waste material. $86,900E/
Surcharge . . . . . . . _ . $38,960 B. Licenses specifically authorizing the receipt of waste byproduct material,_ source material, or special nuclear material from other persons for the purpose of packaging or repackaging the material. 'The licensee will
~
dispose of the material byntransfer to another-person authorized to receive or dispose of the material. ~$14,200 s I Surcharge . . . .. .. . .. $1,760-l .- l. C. Licenses specifically authorizing the t receipt of prepackaged waste byproduct I material,-source material,_or special L - nuclear material from other persons. 1 122 _-._._ =
._____,._-....--___.,_..,_.......-._,,.....-.,....,__.___,_._...--.s,.__,.._,......_
. _ _ . . _ _ . . . ~ . . . . _ . . _ . . . _ . _ . _ _ _ _ _ -.. -_ _
The licensee will dispose.of the material by transfer to another person authorized to receive or . dispose of the material. $7,800: Surcharge . . . . . . .. $1,760 1 I
- 5. Well logging:
A. Licenses for possession and.use-of byproduct material, source material, and/or special nuclear'materialifor well logging, well surveys, and tracer studies other than/ field flooding-tracer studies. $10,600 Surcharge . . . . .. . . . $160 B. ~ Licenses for possession and use of-1 byproduct material for field flooding tracer studies. -$15,400
-Surcharge.. .. . . . . . . . . $1,760
- 6. Nuclear laundries:-
A. Licenses for commercial collection and laundry of items contaminated with 123
----.,..-..-..-....--.-,--._.__.......,,a-....-..,;.......,.,;,,..
byproduct material, source material, or special nuclear material. $5,200 Surcharge . . . . . . . . $1,760
- 7. Human use of byproduct, source, or special nuclear material.
A. Licenses issued pursuant to Parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on l the same license. $14,500 Surcharge . . . . . . . . $160 B. Licenses of broad scope issued to medical institutions or two or more physicians pursuant to Parts 30, 33, 35, 40 and 70.of this chapter authorizing research and development, including human use of byproduct material except licenses for byproduct material, source material, or special 124
- . _ . . . _ . __ _ _ .~ _ _ .. ._ . _ _ _ _ __ . . _ . . .
i nuclear material in~sealei sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding wnen authorized on the samo license.1/' $12,500 Surcharge . . - . _ .
. . . . $1,760 5
C. Other licenses issued pursuant to Parts 30, 35, 40, and_70 of this chapter for human use of byproduct material, source material and/or special nuclear _ material'except. licenses for byproduct material, source material, or special-nuclear material in sealed sources contained in teletherapy. devices. .This category also includes the' possession . and_use of source material.for shielding when authorized on the same licenseill :$4,700 Surcharge . . . . . .. . $160 8.- Civi.1[ defense: A.- Licenses for possession and use of 1 125
,-- -. -, _ . . m.- .
- - . , . . _ , . . . - - - - . _...-..,..~,_.._._..--..._.._.-.a
byproduct material, source material, or special nuclear material for civil defense activities. S2,000 Surcharge . . . . . . . . $160
- 9. Device, product or sealed source safety evaluation:
A. Registrations issued for the safety evaluation of devices or products containing byproduct material, source materia), or special nuclear material, except reactor fuel devices, for commercial distribution. $9,600 Surcharge . . . . . . . . $160 B. Registrations issued for the safety evaluation of devices or products containing byproduct material, source material, or special nuclear material j manufactured in accordance with the unique specifications of, and for use by, a single applicant, except reactor fuel devices. $4,600 Surcharge . . . . . . . . $160 126
l 1 l
- C. Registrations issued for the safety evaluation of socied sources containing byproduct material, source f material, or ipecial nuclear material, except reactor fuel, for commercial s
i distribution. $2,000 1 i
) Surcharge . . . . . . . . $160 l4 D. Registrations issued for the safety l evaluation of sealed sources ; contai"' q byproduct material, source i
material, or special nuclear material, , manufactured in accordance with the uniquo specifications of, and for use f l by, a single applicant, except reactor j fuel. $1,000
- Surcharge . . . . . . . . . $160
- 10. Transportation of radioactive material:
3 A. Certificates of Compliance or other 1 package approvals issued for design of casks, packages, and shipping containers. 127 4
- . , - ,q - ,, ,..me- ,g- - , ,,
. . . _ _ _ - = _ . - . _ - _ -. . - . - . - . . -. -_ -. -. . -. . - _ .
Spent Fuel, High Level Waste and N/A I/ plutonium air packages other Casks N/AI/ B. App' ovals issued of 10 CFR Part 71 quality assurance programs. Users and Fabricators $62,800 Users $1,500 Surcharge . . . . . . . . $160
- 11. Standardized spent fuel facilities. N/A I/
- 12. Special Projects N/A I/
- 13. A. Spent fuel storage cask Certificate N/A I/
of Compliance. l B. General licenses for storage of $118,000 spent fuel under 10 CFR 72.210. i Surcharge . . . . . . . . $160 l l
- 14. Byproduct, source, or special nuclear N/Al/
material licenses and other approvals 128
authorizing decommissioning, decontamination, reclamation or site restoration activities pursuant to 10 CFR Parts 30, 40, 70, and 72.
- 15. Import and Export licenses N/AE/
- 16. Reciprocity N/A E/
- 17. Haster materials licenses of broad $300,000 scope issued to Government agencies.
Surcharge . . . . . . . . $36,160
- 18. DOE Certificates of Compliance . . . . . $1,200,0001El 1/ Amendments based on applications filed after October 1 of each fiscal year that change the scope of a licensee's program or that cancel a license will not result in any refund or increase in the annual fee for that fiscal year or any portion thereof for the fiscal year filed. The annual fee will be waived where the license is terminated prior to October 1 of each fiscal year, and the amount of the annual fee will be increased or reduced where an amendment or revision is issued to increase or decrease the scope prior to October 1 of each fiscal year.
If a person holds more than one license, certificate, 1 registration, or. approval, the annual fee (s) will be assessed for each license, certificate, registration or approval held by that person. For those licenses that authorize more than.one activity 129
on a single license (e.g., human use and irradiator activities), annual fees will be assessed for each category applicable to the license. Licensees paying annual fees under Cat egory 1. A. (1) . are not subject to the annual fees of category 1.C and 1.D for sealed sources authorized in the license. 2/ Payment of the prescribed annual fee does not automatically renew the license, certificate, registration or approval for which the fee is paid. Renewal applications _must be filed in accordance with the requirements of Parts 30, 40, 70, 71, or 72 of this chapter. II For FYs 1993 through 1995, fees for these materials licenses will be calculated and assessed in accordance with S 171.13 and will be published in the Federal Register for notice and comment. 4/ A class I license includes mill licenses issued for the extraction of uranium from uranium ore. A Class II license l includes solution mining licenses (in-situ and heap leach) issued for the extraction of uranium from uranium ores including research and development licenses. An "other" license includes licenses for extraction of metals, heavy metals, and rare earths. El Two licenses rave been issued by NRC for land disposal of special nuclea' uncerial. Once NRC issues a LLW disposal license l for byproduct ar.d .ource material, the commission will consider l l establishing an annual-fee for such licenses. 130 I
II Standardized spent fuel facilities, Part 71 and 72 Certifi-cates of Compliance and special reviews, such as topical reports, are not assessed an annual fee because the generic costs of regulating such activities are primarily attributable to the
, users of the designs, certificates and topical reports.
1/ Licensees in this category are not assessed an annual fee because they are charged an annual fee in other categories while they are operating. l Il No annual fee is charged because-it is not practical to administer due to the relatively short life or temporary nature of the license. 1/ Separate annual fees will not be assessed for-pacemaker licenses issued to nedical-institutions who also hold nuclear medicine licenses under Categories 7B or 7C. IE/ This includes all Certificates of Compliance issued.to DOE. III No annuel fee has been established because there are-currently-_no licensees in this particular fee category. (e) A surcharge is proposed for each category, except Category 18,-for which a base annual fee is required. LThe surcharge' consists of the-following:
-131
____ _ _ ___.._ _ _ . ___ _.__._ .___ ~__ _ . . l (1) To recover costs relating to LLW disposal generic ! activities, an additional charge of $155,100 has been added to f fee Categories 1.A.(1) and 2.A.(1); an additional charge of
$38,800 has been added to fee categories 1.A.(2):and 4.A.; an f
i additional charge of $1,600 has been added to fee Categories . 1.B., 1.D., 2.C., 3.A., 3.B., 3.C., 3.L., 3.M., 3.N., 4.B., 4.c., 5.B., 6.A., and 7.B.; and an additional charge of $36,000 has been added to fee Category 17. (2) To recoup those costs nM 'ic090'nd from small entities, an additional charge ol, $kW Ja; be added to each fee Category, except Categories 10.A., ... .. 1., 13.A., 14., 15., 16., 17., and 18. Licensees who qualify cd small entities under the provisions of S 171.16(c) and who' submit a completed NRC Form 526 are not subject to the $160 additional charge. ;
- 11. In Section 171.19,-paragraph (b) and (c) are, revised to -
read as follows: 6 171.19 Payment. # l l l - (b) For FY 1992 through-FY--1995', the-Commission will adjust t the fourth quarterly bill for operating-power reactors and-certain materials licensees to recover the' full amount of the
~
revised annual fee. All othTr' licensees, or holders of a , certificate, registration,-and approval'of a QA program will be
~132- ,
rgw-vn,-,,ww,- ,-a, g-e. y ,yw- y -rw - w,c~-w..,,,,c .,y ,,-m,y, ,c.,-,v -w.wev-w+, r ,w- p w y w -+--W w - w ma -e- w. ww ,y.,qr-sy-ywwre-,y,,~r+w -wgy-,vww,,,,-,Q
sont a bill for the full amount of the annual fee upon publication of the final rule. Payment is due on the effective date of the final rule and interest shall accrue from the effective date of the final rule. However, interest will be waived if payment is received within 30 days from the effectivo date of the final rule. (c) For FYs 1992 through 1995, annual fees in the amount of
$100,000 or more and described in the Federal Register Notice pursuant to S 171.13, shall be paid in quarterly installments of 25 percent. A quarterly installment is due on October 1, January 1, April 1 and July 1 of each fiscal year. Annual fees of less than $100,000 shall be paid once a year.
Dated at Rockville, Maryland this day of , 1992. For the Nuclear Regulatory Commission. James M. Taylor, Executive Director for operations, i 133
APPENDIX A TO THIS FINAL RULE REGULATORY FLEXIBILITY ANALYSIS FOR THE AMENDMENTS TO 10 CFR PART 170 (LICENSE FEES) AND 10 CFR PART 171 (ANNUAL FEES) I. BACKGROUND The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 at seq.) establishes as a principle of regulatory practice that agencies endeavor to fit regulatory and informational requirements, consistent with applicable statutes, to a scale commensurate with the businesses, organizations, and government jurisdictions to which they apply. To achieve this principle, the Act requires that agencies consider the impact of their actions on small entities. If the agency cannot certify that a rule will not significantly impact a substantial number of small entities, then a regulatory flexibility analysis is required to examine the impacts on small entities and the alternatives to minimize these impacts. To assist in considering these impacts under the Regulatory Flexibility Act, the NRC adopted size standards for determining which NRC licensees qualify as small entities (50 FR 50241; December 9, 1985). These size standards we: e clarified November 6, 1991 (56 FR 56672). The NRC size standards are as follows: (1) A small business is a business with annual receipts of
$3.5 million or less except private practice physicians for which 134
P l the standard is annual receipts of $1 million or less. , (2) A small organization is a not-for-profit organization 1 which is independently owned and operated and has annual receipts of $3.5 million or less. (3) Small governmental jurisdictions are governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than 50,000. (4) A small educational institution is one that is (1) supported by a qualifying small governmental jurisdiction, or (2) one that is not state or publicly supported and has 500 employees or less. Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990 (OBRA-90), requires that the NRC recover approximately 100 percent of its budget authority, less appropriations from the Nuclear Waste Fund, for Fiscal Years (FY) 1991 through 1995-by assessing license and annual fees. For FY 1991, the amount to be collected ~was approximately $445 million, and'for FY 1992, the l amount to be collected is approximately $492.5 million. i To comply with OBRA-90, the Commission proposed' amendments 1 l to its fee regulations in 10 CFR Parts'170 and 171 on1 April 12,- 1991 (56 FR .'4870). -,On.the basis of a careful evaluation of over 400 comments, the Commission.-issued al final rule on JulyJ10, 1991'
- (56'FR 31472). Consistent with the Conference Committee Report'-
135 4- ,.,,..,~.,~,,--.v, 4.14 . -- m M. ,, w r, , 3 y ,,,,w-,,,.s.,,w- w....,.,..,.---.w.wm,~~,,-,,,,..,,,,rr, .,.W, , --4,.,'--,,,<~.w y -c.,
I accompanying the Public Law, the NRC fairly and equitably allocated its budget costs. This resulted in the assessment of annual fees for all classes of licensees, including those classes of licensees with a substantial number of small entities. II. IMPACT ON SMALL ENTITIES The comments received on the proposed FY 1991 fee rule revisions, and small entity certifications received in response to the final FY 1991 fee rule indicate that NRC licensees qualifying as small entities under the NRC's size standards-are primarily those licensed under the NRC's materials program. Therefore,-this analysis will focus on the economic impact of the annual fees on materials licensees. The Commission's fee regulations result in substantial fees being charged to those individuals, organizations, and companies
- that are licensed under the NRC materials program. Of these i
I materials licensees, the NRC estimates that about 25 percent (approximately 2,000 licensees) qualify as small entities. l Therefore, in recognition of this substantial 1 number of small l' entities, the NRC requested comments from smallientities on the l proposed FY 1991-rule.- Comments were specifically requested on-l L -(1)'how the proposed regulations would affect each class of
-licemp2e and (2) how the regulations could be structured to further. minimize the economic impact on the' licensee but still meet the statutory mandate of OBRA-90. -
-136-
_. . . . _ _ _ _ _ - - - . _ _ . . . . . _ . . . _ _ _ _ . _ _ _ _ ~ _ _ _ _ _ _ _ . _ _ . _ _ _ . _ _ . _ _ _ _ . _ _ __ _ For materials licensees, the increase in fees assessed in FY 1991 consisted of (1) an increase of 25 percent in the license and inspection fees assessed under 10 CFR Part 170 and (2) a new annual fee assessed under 10 CFR Part 171 that ranged from $290 to over $10,000. A number of small entities indicated that the 25 percent increase in license and inspection fees, although not desirable, would not have a significant economic impact on them. However, many other materialu licensees commented that the new annual fee would have a negative economic impact on them. Therefore, the regulatory flexibility analysis prepared for the , July 10, 1991, final rule, as well as this regulatory. flexibility analysis, concentrates on the annual fee. , The commenters indicated the following results if the annual fees proposed on April 12, 1991, were not modified:- Large firms would gain an unfair competitive advantage j over small entities. One commenter noted'that a small well-logging company (a " Mom and Pop" type of operation) would find it difficult to absorb the annual fee, while a large corporation would: find it easier. l Another commenter noted that the fee increase could be more easily absorbed by a high-volume nuclear medicine clinic.-'A gauge licensee noted-that,--in the very competitive soils testing market,_the-annual-fees would- - put it at an extreme disadvantage _with;its much larger-competitors _because_the:proposedLfees would be the same - for a two-person licensee as_for.a large firm'with 137
.-~-.a.~.,_ _ . _ , . - _ _ _ _ . . , _ - , , . _ _ _ _ . - _ , . . . . . _ . _ . _ . . . . _ . _ _ _ _ . . . . . _ . . . _
. . _ . . . ... a
thousands of employees. Some firms would be forced to cancel their licenses. One commenter, with receipts of less than $500,000 per year, stated that the proposed rule would, in effect, force it to relinquish its' soil density gauge and license, thereby reducing its ability to do its work effectively. Another commenter noted that the. rule would force the company and many other small businesses to get rid of the materials ~1icense altogether. Cominenters stated that the proposed rule would result in around 10 percent of the well logging licensees terminating-their licenses immediately and approximately 25' percent' terminating their licenses I before the next annual assessment. Some companies would go out of business. One commenter noted that the proposal would put it,_and several other _small companies, out of business or, at the very least, make it hard to survive. Some companies would have budget problems. Many .
- medical licensees commented'that,.in-these times of
= slashed. reimbursements, the proposed-increase of the existing fees and the introduction of additional fees l would significantly-affect their budgets. Another-l noted that, in view of the cuts.by Medicare and other third party carriers, the fees would produce a hardship 138-l , _ . - , , . _ _ . . , . - . . . , , . . . . - - , - - , . . - , . _ . - , , ~ . - , ..4., .-,-,,--,__.,m,,,,-.-. m.,--,,-, m.,.,.-.. ,. , , - ~ . - , . ,
and some facilities would experience a great deal of difficulty in meeting this additional burden. Although it was not clear to what extent these impacts would materialize at the time the July 10, 1991, final rule was promulgated, it was clear that the proposed annual fees would be a relatively high portion of the gross revenues of some licensees and far less of a portion for other larger material licensees. After the final rule was published, approximately 1,000 license, approval, and registration terminations were requested. Although some of these terminations were requested because the license was no longer needed, indications are that other termination requests were due to the economic impact of the fees. The NRC continues to receive written and oral comments from small materials licensees. These comments indicate that the $3.5 million threshold for small entities is not representative of small businesses with gross receipts in the thousands of dollars. These commenters believe that the $1,800 maximum annual fee represents a relatively high percentage of gross annual receipts for these " Mom and Pop" type businesses. Therefore, even the reduced annual fee could have a significant impact on the ability of these types of businesses to continue to operate. Members of Congress, in many of the more than 100 Congressional letters the NRC has received from them since the July 10, 1991, final rule was published, have expressed concern - about the size of the NRC annual fees and their economic impact 139
on small entities. Some of these letters have suggested that the Commission should act to further reduce the economic impact on those licensees who conduct limited operations. The Small Business Administration (SBA), while commending the Commissic for complying with and using the RFA in the final rulemaking, suggested that the Commission should act to further alleviate the impact of the fees on small businesses. The American Nuclear Society (ANS) also expressed concern about the impact of the annual fees on small entities and suggested that the Commission examine alternatives to further reduce the impacts. Therefore, the NRC concludes that it should consider additional alternatives, in accordance with the RFA, because of the continuing significant impact of the annual fees on a substantial number of small entities. III. ALTERNATIVES Commenters on the proposed rule published April 12, 1991, and comments received subsequent to publication of the final rule on July 10, 1991, suggested alternatives to reduce the impact on small entities. These comments are categorized as follows: Base fees on some measure of the amount of radioactivity possessed by the licensee (e.g., number of sources). Base fees on the frequency of use of the licensed 140 _j
l i radioactive material (e.g., volume of patients). [ i Base fees on the NRC size standards for small entities. . The first alternative would result in the annual fee being
. in direct proportion to the amount of radioactivity (e.g., number l of radioactive sources) possessed by the licensee, independent of whether the licensee meets the size standard for a small.
business. Thus, a large diversified firm that owns one source would get a reduced fee, while a small entity, whose business may depend solely on the use of radioactive materials, would pay a larger fee because it has more than one source. Thus, this alternative does not necessarily achieve the goal of the RFA to-minimize the impact.on small entities. The NRC also believes that this approach would not-result in a fair and equitable. allocation of its generic.and other costs not recovered under 10 ' CFR Part 170. Therefore, the NRC rejected this approach. For similar' reasons, the second suggested alternative, , basing-the fee on the-frequency of use-of the licensed radioactive source, would not necessarily reduce the cost for small entities that meet the size standards discussed earlier. Therefore, the NRC also' rejected this approach. i The last alternative would base fees on the size standards I that'the NRC has used to define small entities. This: alternative-would ensure that any benefits from-myGifying the proposed fees would apply only to'small entities. Three basic options, each. 141
l using the NRC size standards, were considered for modifying tha ; annual fees imposed on small entities
- 1. Exempt all small entities which meet the size standards .
from annual fees.
- 2. Require small entities to pay a fixed percent of the amount of the fee in each of the specific material-license fee categories.
- 3. Establish a maximum fee for small entities.
Under Option 1, all small entitles would-be exempted from fees. However, because small entities would not pay any of the generic costs attributable to their class of licensees, this option could be viewed as inconsistent with the objectives of OBRA-90. Under this option, all the annual fees attributable to 1 small entities would be paid by other'NRC licensees. Under Option 2, small entities would pay a percentage (e.g., 50 percent) of the proposed fee for each specific category of materials license, regardless of how small or large the fee is. This option could result in a reduction-in annual fees that-are already relatively reall and that"do not have_a significant-1 impact on a substantial number of small entities. -However, for I those fee categories _ assessed'large annual fees, the percentage; i of reduction may result in assessing small' entities licensed under-those' fee categories ~relatively-large annual. fees. 142
- i
Option 3 would establish a maximum fee for all small entities. Under this option, a small entity would pay either the smaller of the annual fee for the category or the maximum small entity fee. This alternative strikes a balance between the requirements of OBRA-90 and the RFA, which are to consider and reduce, as appropriate, the impact of an agency's regulatory actions on small entities. Therefore, the NRC has adopted Option 3 as the most appropriate to reduce the impact on small entities. IV. MAXIMUM FEE To implement option 3, the NRC established a maximum annual fee for small entities. The RFA and its implementing guidance do not provide specific guidelines on what constitutes a significant economic impact on a small entity. Therefore, the NRC has no benchmark to assist in determining the amount or the percent of grcss receipts that should be charged to a small entity. To determine a maximum annual fee for a small entity, the NRC ' examined the NRC 10 CFR Part 170 license and inspection fees established in 1991 and the 1991 Agreement State fees for those fee categories that are expected to have a substantial number of small entities. Because these fees have been charged to small entities, the NRC believes that these fees do not have a significant impact on them. In fact, the NRC concluded, in issuing the July 10, 1991, final rule, that the existing materials license and inspection fees do not have a significant 143 i _ _ _ _ _ - _ _ _ - - . _ ._
impact on small entities. The maximum feer per year charged in 1991 by several Agreement States and by the NRC for materials license fee categories with a significant number of small entities are shown below. 1991 Maximum Average Total Fee Per Year Washington $3,760 Texas $2,100 Illinois $2,000 NRC $1,590 Nebraska $1,460 New York $1,030 Utah $440 Table 1 presents the estimated total fees (Part 170 plus Part 171) for materials licensees, assuming maximum annual fees for small entities of $2,000 or $1,500 and an average number of licensing actions and inspections por year. If the maximum annual fee for small entities is established at $2,000, the average fee per year for all of the categories woulri be below the approximately $3,800 maximum fee charged by Agreement States, except for radiography, waste' receipt and packaging, and broad-scope medical licensees. The broad-scope medical, and waste receipt and packaging licensees'are primarily large entities. Therefore, with a $2,000 maximum small entity annual feeLand the 144
- - . - . - . - . . - . - - _ . _ . - . _ . . . - . - . - - - - - . . - - - . ~ . . . . - .
average license and inspection fees, only small entities who are radiographers would pay slightly more than the current maximum Agreement State fee of approximately $3,800. If the maximum fee is reduced by $200 (from $2,000 to $1,800), then all categories of materials licensees, including radiographers, would pay no more for each category than the 1991 maximum Agreement State fee of about $3,800 if the licensee qualifies as a small entity. By establishing the maximum annual fee for small entities at
$1,800, the annual fee for many small entities will be reduced-I while at the same time materials licensees, including small' entities, pay for most of the FY'1991 costs ($22.3 million of the total $27.2 million) attributable to them. Therefore, the NRC has established and will continue, for FY 1992, the maximum annual fee (base annual fee plus surcharge) for certain small entities at $1,800 for each fee category covered by each license ,
issued to a small entity. Note that the costs not recovered from small entities are allocated to other-materials licensees and to operating power reactors. l While reducing-the impact on many small entities, the Commission agrees that the current maximum annual _ fee of $1,800 for small entities, when added to the Part 170 license and inspection fees,_may continue to have a significant impact on materials licensees'with annual gross receipts in the thousands
~
of dollars. Therefore, the Commission is proposing to further reduce the impact on small entitier with relatively low gross annual receipts. 145-
1 l 1 Commenters have suggested that the NRC could reduce the l impact of the fees for materials licensees by basing them on the licensee's nuclear capacity (e.g., the number of sources possessed, the number of hospital beds, or the amount of j , radioactive material possessed), or the frequency of use of the i ,
! radioactive material. In adopting the July 10,. 1991, final rule, I the commission recognized that inherent differences exist in the nuclear capacity and the frequency.of source use for many of the classes of materials licensees. However, as indicated in Section t
III of this analysis, the Commission concludes that basing the fee on the number of sources, frequency of use,1 amount of l radioactive material possessed does not necessarily reduce the i j impact of the fees on small entities, which is the goal of the ; j RFA. The Commission continues to believe that uniformly allocating the generic and other regulatory costs to the specific _ f license to determine the amount of the annual' fee is a fair and i l equitable way to recover its costs and that establishing reduced j annual fees based on gross receipts (size) is the most { appropriate approach to minimize' the impact cn1 small entities. Consistent with this approach, the Commission Will continue the ! $1,800 maximum annual fee for small entities. In addition, the Commission proposes to create a lower tier annual fee ~for small entities with relatively small gross annual receipts or with:a , relatively small population. i l L To implement'this proposal, relatively small annual receipts
- must first be defined. Based on data from an NRC survey of 146 , , -. . - _ _ _.._._. _ . . . - . . - . _ . _ . . - - . _ _ . . - _ . . . , . _ _ _ . . , . _ . _ - - - - , , . - , . . ~ . _ . _ - - . ~ . . . - . _ , _ ,
materials licensees and the Department of Commerce industry census, the following data shows the distribution of businesses l with annual gross receipts of less than $3.5 million. I Annual Grost Department Receiots NRC Survev af Commerce Less than $250K 45% 55%
$250 - $499K 14% 22%
$500 - $749K 8% 6%
$750 - $999K 9% 6%
$1,000 - $3,500K 24% 11%
As shown, 45 to 55 percent (or about 50%) of small businesses with gross annual receipts of less than $3.5 million have gross annual receipts that are less than $250,000. Thus, by defining relatively small gross annual receipts as less than
$250,000, a significant number of small entities would be eligible for a further reduction of the impact of the annual fees. This level would also help ensure that those small businesses which probably would be impacted the most would pay the lower fee.
A similar approach has been used to define a relatively small governmental jurisdiction. Using 1990 data from the National Association of Counties, the distribution for counties located in non-Agreement States with a population of less than 50,000 shows that a population level of less than 20,000 would ensure that at least 50 percent of the small counties would be eligible for reduced fees (See the data presented below). This would also ensure that at least 50 percent of other governmental i jurisdictions (cities, towns, villages, school districts, etc.) 147
could also receive the benefits because these other jurisdictions are typically smaller than counties. Percent Population of Total Less than 5,000 10% 5,000 - 9,999 18 10,000 - 14,999 16 15,000 - 19,999 14 20,000 - 24,999 9 25,000 - 50,000 33 The NRC must also determine the amount of the annual fee that should be assessed to lower tier small entities (less than
$250,000 for small buainesses and small non-profit organizations, or less than 20,000 population for small governmental jurisdictions). In determining the amount of the annual fee for lower tier small entities, the Commission believes that the reduced fee should retain a balance between the objectives of the RFA and OBRA. This balance can be measured by (1) the amount of costs attributable to small entities that is transferred to larger entities (the small entity subsidy); (2) the total annual fee small entities pay, relative to this subsidy; and (3) how l much the annual fee is for a lower tier small entity. Nuclear gauge users arc used to measure the reduction in fees because they represent about 40 percent of the materials licensees and most likely would include a larger percentage of lower tier small entities than would other classes of materials licensees.
Before presenting alternative fees, the NRC notes that the number of licensees filing small entity certifications for the FY 148
~ _ _ . - _. . _ . . . _ _ . _ _ __ . _- .
i 1991 annual fees is lower than originally estimated. The NRC estimated 3,000 certifications in the current rule, which would have resulted in an estimated cost of about $5 million in the small entity subsidy. On the basis of the response to the FY 1991 billings, the NRC's estimate now is that there are about 2,000 small entities. The following data shows four different lower tier small entity fees, their impact on the licensees, and their impact on the balance between OBRA and RFA. Estimated Alternative FY 1992 Estimated Lower Tier Reduction Small FY 1992 Annual Small in Fee Entity Fees Paid Entity for Gauge Subsidy by Small Annual Fee Users (%1 ($ M) Entities ($ M)
$1,200 30% $5.0 $4.5 900 50 5.3 4.2 700 60 5.5 4.0 400 75 6.0 '3. 5 Each of the alternative lower tier annual fees reduces the annual fee for qualifying nuclear gauge licensees. However, the Commission is establishing an annual fee of $400 for the lower tier small entities because this amount should ensure that the lower tier small entities receive a reduction (75% for small gauge users) substantial enough to mitigate any severe impact.
The amount of the small entity subsidy resulting from this fee would be equivalent to the amount estimated in the July 10, 1991, final rule, increased by 20 percent to account for the FY 1992 budget increase and the reducea number of materials licensees 149
resulting from license terminations after the FY 1991 rule became effective. Although the other reduced fees would result in lower subsidies, the Commission believes that the amount of the associated annual fees, when added to the license and inspection fees, would still be considerable for small businesses and organizations with gross receipts that are less than $250,000 or for governmental entities in jurisdictions with a population of less than 20,000. V.
SUMMARY
Comments received on the proposed rule dated April 12, 1991, and implementation of the final rule on July 10, 1991, provide evidence that the annual fee would significantly impact a substantial number of small entities. A maximum fee for small entities strikes a balance between the requirement to collect 100 percent of the NRC budget and the requirements to consider means of reducing the impact of the proposed fee on small entities. On the basis of its regulatory flexibility analysis, the NRC i concludes that a maximum annual fee of $1,800 for small entities and a lower tier small entity annual fee of $400 for small businesses and non-profit organizations with gross annual receipts of less than $250,000, and small governmental entities with a population of less than 20,000, will reduce the impact on small entities. At the same time, these reduced annual fees are consistent with the objectives of OBRA-90. Thus, the revised fees for small entities maintain a balance between the objectives of OBRA-90 and the RFA. 150
l l Table 1 . 1991 Average Total Small Entity Fees Per Year License Fee category Total Small Entity FeeY Max Annual Hax Annual Fee = $2K Fee = $1.5K
\
Special Nuclear Haterial (SNH): 1 Ic. Industrial Gauges $1,672 S1,672 1D. All other SNH 2,506 2,006 Source Materials l 2B. Shielding 463 463 2C. Other Source Materials 2,867 2,367 1 Byproduct Materials 3A. Manufacturing Broad 3,560 3,060 3B. Manufacturing Other 3,343 2,843 3C. Radiopharmaceuticals 3,207 2,707 3D. Radiopharmaceuticals Manufacturing 2,677 2,177 3E. Irradiators - Self shield 1,699 1,699 l 3F. Irradiators < 10,000 Ci 2,623 2,123 3G. Irradiators . > 10,000 ci 3,840- 3,340 3H. Exempt distribution . Device review 2,815 2,315 3I.-Exempt distribution - No device review 2,682 2,182 l 3J. Gen. license - Device review 2,679 2,179 i ( 151 I
. . ~ , .,
)
Table 1 .- 1991 Average Total Small Entity Fees Per Year License Fee Category Total Small Entity FeeY Max Annual Hax Annual Fee = $2K Fee = $1.5K 3K. Gen. license - No device review 2,708 2,208 3L. R&D - Broad 3,210 2,710 3M. R&D - Other 3,050 2,550 3N.' Service license 2,733 2,233
- 30. Radiography 4,050 3,550 3P. All other byproduct materials 2,120 2,120 WASTE DISPOSAL AND PROCESSING:
4B. Waste receipt / packaging 4,680 4,180 4C. Waste receipt - prepackaged 3,216. 2,716 Well Logging: SA. Well logging 3,207 2,707 NUCLEAR LAUNDRY: l~ 6A. Nuclear laundry 3,030 2,530 152
- ,- - .. . . - - - - . - _ , . _ _ . - _ _ . - , _ . _ _ , , . -,-. . a.- -. . . . . - , . -- _ _ . .
4 Table 1 -- 1991 Average Total Small Entity Fees Per Year License Fee category Total Small Entity FeeY - Max Annual Hax Annual Fee = $2K Fee = $1.5K Human Use Of Syproduct, Source, or SNH 7A. Teletherapy 3,788 3,288
- 78. Medical - broad 4,360 3,860 7C. Medical other 3,130 2,630 CIVIL DEFENSE:
BA. Civil defense 1,789 1,789 Device, Product, or Sealed Source Safety Evaluation 9A. Device / product - Broad 3,200 2,700 9B. Device / product - Other 2,580 2,080 9C. Sealed sources - Broad 1,530 1,530 9D. Sealed sources - Other 770 770 l' Based on average 10 CFR Part 170 fees plus maximum annual fees. 153
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\
0 ' . [7590-01) NUCLEAR REGULATORY COMMISSION 10 CFR Parts 170 and 171 RIN: 3150-AE Revision of Fee Schedules; 100% Fee Recovery, FY 1992 AGENCY: Nuclear Regulatory Commission. ACTION: Final rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is amending the licensing, inspection, and annual fees charged to its applicants and licensees. The amendments are necessary to implement Public Law 101-508, signed into law on November 5, 1990, which mandates that the NRC recover approximately 100 percent of its budget authority in Fiscal Year (FY) 1992 less amounts appropriated from the Nuclear Waste Fund (NWF). The amount to be recovered for FY 1992 is approximately $492.5 million.
EFFECTIVE DATE: (30 days after publication) 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: I. Background.
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2 9 t'
. i i
i II. Responses to Comments. III. Final totion -- Changes Included In Final Rule. IV. Section-by-Section Analysis. ) V. Environmenta) Impact: Categorical Exclusion. VI. Paperwork Reduction Act Statement. VII. Regulatory Analysis.
- IIII. Regulatory Flexibility Analysis, i
IX. Backfit Analysis, i 1 I. Bcckground j i l Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990 (OBRA-904,-algned into law on November 5, 1990, requires that th recover ap'1toximately 5 100 percent of its budget authoritylesstheamountapprApriatpdfromtheDepartmentof Energy (DOE) administere f r Fhb l991 through 1995 by
- assessins license, inspection, and annual fugs, i
Mpj f.L- N On July 10, 1991 (56 FR 31472), the N(c.'. ear Regulatory _ ,-) C mmicsio published a final rule in the Federal-Register which
. established the Part 170 professional hourly rate and the l materials licensing and inspection fees as well as-the Part 171 l- annual fees to be assessed to recover approximately 100 percent
! of the FY 1991 budget. The rule became effective August 9, 1991. In addition to' establishing the FY 1991 fees, the August 9, 1991, l final rule established the underlying basis and method-for i i:
. - - . . . - -- -, , .._....-._m..- _ - , . _ . . . . , _ . ~ . , . . . . , _ - -
s 9 determining the Part 170 hourly rate and fees and the Fart l'1 annual fees. This final rule incle. des the limited changes made to 10 CFR Parts 170 and 171 which were issued as a final rule on April 17, 1992, with an effective date of May 18, 1992 (57 FR 13625). The limited change to Part 170 allows the NRC to bi~i quarterly for those license fees that are current.ly billed every six months. The limited (;hange to Part 171 adjusts the maximum annual fee assessed a mat erials licensee who qualifies as a small entity under the NRC's size standards. The maximum annual fee of
$1,800 per licensed category is continued for FY 1992. However, a lower tier small entity fee of $400 per licensed category has been established for small businesses and non-profit organizations with gross receipts of less than $250,000 and small governmental jurisdictions with a population of less than 20,000.
II. Responses to Comments Nineteen public comments were received by the close of the l comment period on May 29, 1992. An additional seven comments a==-" which were received by the close of business on June 5, 1992, have been evaluated for a total of twenty six comments, l Of the twenty six comments, two were from power reactor licensees or their representatives, and twenty four were from 3 i k
~
1 f3 - 1
- persons concerned with other than power reactors, including ten i
j from the uranium industry. Copies of all comment letters are available for inspection in the Public Document Room. } i Mary of the comments which were considered were similar in i i nature. For evaluation purposes, these comments have been !- grouped, as appropriate, and addressed in the context of the i narrow focus of the-rule. ,i I i A. Whether the Commission has properly applied the methodology i adopted in FY 1991 to the FY 1992 budget authority, i i
- 1. Comment. A few commenters indicated that the NRC has j not provided sufficient information on-which to evaluate fees.
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1 These commenters indicated that the NRCf 1) violated the Administrative Procedure Act (APA) by failing to provide an i j explanation of how it arrived at its final determination of the annual feesj particularly as they-apply to fuel cycle facilities; { -and 2) did not provide sufficient budget detail to verify the I i f significant changes in the proposed rule. Commenters recommend r that NRC make publicly available its Five Year' Plan or other documents-with an equivalent level.of detail to provide:the information necessary to allow effective-evaluation and constructive comments on the proposed rule. 4 i Resconse. The NRC believes it.has provided sufficient l-4- 4-j.
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/ FY 1992 budget information to allow effective evaluation and
/
/ constructive comments on the proposed rule. Part III, Section-I by-Section Analysis, of the proposed rule published April 29, 1992, provided seven pages of explanation regarding the FY 1992 budgeted costs for the various classes of licensees being assessed fees (57 FR 18097). In addition, the fee workpapers
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which were placed in the public document room prcVide additional 5 information concerning the development of the fees,, including a -- break _down of the FY 1992 budget by activity level for the major
/
programs.'/ The resources shown in the workpapers are the same as p 42e h a e d. M those in the Five Year Plan for FY 1992 and are displayed at the t lowest level, the activity level, as in the Five Year Plan.
- 2. Comment. A few commenters indicated that the hourly rate of $123 for FY 1992 (a 7 percent increase over FY 1991) is not justified, and that the NRC had not indicated that it is incurring an increase in the area of salaries, benefits and overhead but rather an increase in total NRC spending.
Commenters point out that the NRC professional rate has increased by approximately 115% over a seven year period while the Consumer Price Index (CPI) has shown an inflatien rate of about 22%-for the same period. Commenters recommend that FRC bring its FY 1992 hourly rate back in line with the increase in the CPI and the average wage increases in the industry it regulates. This would be 3% to 4% a year or an hourly rate of $119 for FY 1992. Commenters suggest therefore that it is inappropriate to raise 1) 5 I
i ' the professional rate by 7% and 2) inspection fees by 7% and that-the NRC use the CPI or otter indices for determining future , adjustments to its hourly rates. N. Resconse. The NRC professional hourly rate is established to recover approximately 100 percent of the Congressionally approved budget, less the appropriation from the NWF as required by OBRA-90. Both the method and budgeted costs used by the NRC in tha development of the hourly rate of_S123 for w f FY 1992 4e discuss <.d in detail in Part III, Section-by-Section-Analysis, 5170.20 of the proposed rule (57 FR 18097). 'For Q)
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example, Tabl'e II shows the direct FTEs (full. time. equivalents)
' { f. 3 by major program for FY 1992, and Table III shows the budgeted costs (salaries and benefits, administrative support, travel and s . \
t certain contractual support) which must be recovered-through fees A assessed for the hours expended by the direct FTEs. The budgeted ,' O.. \ g" p costs have' increased $38.6 million as compared to FY 1991-levels. 1 1 f4 1, This increase in the budgeted costs-is the. reason'why the.FY 1992 ga ; hourly rate.must be increased by 7 percent in FY 1992. The NRC is unable to use the CPI or other" indices in the development of the NRC-hourly rate or the fees to be assessed under 10.CFR Parts _170 and 171 because if the hourly rate were increased by only 3 to 4 percent over the FY 1991 levels, the NRC could not meet the requirement of OBRA-90 to recover approximatalv 100 percent of
~ the NRC budget authority through fees. d.'., r M e w "j Y.
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i i These funds are not included in the NRC budget request. The costs
- are funded by the entity receiving tha service or participating in the cooperative research. These activities are therefore not included in the computation of 100 percent fee recovery for the funds appropriated to the NRC and are therefore not charged to gwp aemenyaw %
licensees These monies are separately identified in the agency's financial systems, deposited and disbursed for the-performance of the functions for which they are collected. i With respect to the NWF appropriation for the FY 1992 budget,
$1.7 million of the NRC's total administrative support funds was allocated to the High-Level Waste Regulation program based upon the full-time equivalent staffing budgeted fcr that program.
Funds for the NRC High-Level Nuclear Wasta Regulation program are appropriated from the Nuclear Waste Fund. Licensees are not ! charged fees for the administrative support costs which are allocated to the Nuclear Waste Fund.-
- 4. Comment. One commenter indicated that to assess fee
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! Category 2.A.(2), Class I, fees Jg> sites undergoing reclamation ~~~~~ amounts to double charging because these types of facilities are-already charged fees under Part 170 for the full cost of , regulatory services associated with the reclamation process. l-- Resoonse: To recover 100 percent of the budget, the NRC assesses two types of fees._ First, license and inspection fees are assessed under 10 CFR Part 170 to recover the costs to the . 9
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Q g _,y , i i NRC of providing individual services to specific applicants;for, and holders of, NRC licenses and-approvals 3 The Part 170 fees are billed for specific services rendered,'in response to an , application filed with the NRC for review / or an inspection conducted by the NRC. Second, annual fees are assessed under 10 ., CFR Part 171 to recover NRC generic and other regulatory costs not recovered under 10 CFR Part 170. Yhus, there is no double charging of fees to uranium recovery licensees. S. -Comment. A few commenters submitted comments on the methodology used by the NRC to develop the lower tier small i entity fee of $400 established by the NRC affective May 18, 1992. While applauding the NRC for developing a lower tier small entity fee, commenters believe that-NRC should l) expand the criteria as i , to what constitutes a "small entity" and that a sliding scale fee should be considered based on ability to pay; 2) reexamine the
~
method of allocation of costs because it-is inherently unfair,f particularly the lower tier small-entity fee of $400 which t [ enables " mom and pop" operations to remain'in business but forces modest companies'with small radiographic testing-departments to subsidize them; 3) clarify'the' question as to whether the gross- , J. ] annual receipts g) considered as income generated lonly from the --~~
' activities pertaining-to the license or income generated from the
- entire entity composed of various. departments; and 4) allow small county governmental jurisdictions to deduct.the population of l incorporated cities and. villages
- not within the jurisdictional 4
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i powers of the county. Resoonse. These types of comments were addressed by the NRC in Section II, Responses to comments, item B., of the final limited rule published by the NRC on April 17, 1992 (5 R 13626-13627). With respect to the question of what constitutes gross annual receipts,.the NRC stated clearly in establishing the size standards and in the promulgation of the final rule-establishing the lower tier small entity fee that the term
" annual receipts" is:used in the same manner as used by the Small Business Administration (SBA). In 13 CFR 121. 402 (b) (2)p annual a r-~"-
receipts are defined " .. ..to include all revenue in whatever form reasived or assessed from whatever sources . .. (54 FR 52647; December 21, 1989) (57 FR 13625; April 17, 1992). For purposes of qualifying.as a small governmental jurisdictiong r under the NRC fee regulations, the population of a county includes the. population of all cities, towns, and villages within the county. Wu >
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- 6. Comment.. One commenter indicated that 42Bt7 had submitted a petition for'rulemaking to the NRC to review the FY l 1991 methodology so that medical licensees could be~ treated like.
similar licensees. .The commenter believes the NRC is obligated to address-the concerns raised in.the petition-in terms of whether the proposed' fee schedule-for FY 1992'is consistent with the methodology. adopted in FY.1991. The commenter suggests that 11-
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W the NRC institute an immediate moratorium freezing fees at FY 1991 levels until the petition is considered in its entirety. i Response. The Commission dcM==htelieue-st is , - obligated to address the concerns of the petition of rulemaking - filed with the NRC before adopting the final rule establishing i fees for FY 1992. The NRC clearly stated when it published l receipt of the petition for rulemaking'in the Federal Register i { that "NRC-intends to consider the issues raised by the petitioners after the rulemaking action necessary to establish the license and annual fees for FY 1992 is completed . . . . The-i petitioners' concerns will be considered within-the context of the review and evaluation of the fee program for FY 1993 which { will be conducted as;part of the NRC's continued implementation .' of Public Law 101-508" (57 FR 20213).A To adopt an immediate moratorium freezing fees at the FY 199L level until the petition i i-is considered would result in the NRC not meeting the fb 'f' '/ ^ I requirements of OBRA-90 that NRC recover.approximately 100 i percent of its budget authority for FY 1992. l- .a I a 7. Comment. One commenter-indicated that the NRC did not i r I properly apply the methodology in-FY 1991 to one of its licensees who conducts multiple activities under a' single license. The i 1-licensee should be assessed annual fees for each fee category --
- ~
- applicable to the licensev'
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ResDonse. (NMSS to respond to OC request for additional information.)
- 8. Comment. Several commenters indicated that it seemed apparent that uranium licensees are being billed for agency overhead that is not attributable to the regulation of the uranium mining industry. Commenters believe that a considerable amount of the agency resources are likely dedicated to interagency work for the Department of Energy (DOE) such as NRC review of DOE's reclamation plans for Title 5 uranium mill tallings sites, and interaction with Environmental Protection Agency (EPA) on the promulgation of regulations. The commenters noted that these agencies are not billed for these NRC activities which are associated with uranium recovery. Commenters disagree with the NRC4that all substantive review at DOE sites is --~"
essentially completed prior to the application for a general f3 license for that site. Commenters disagree also yith NRC's
~
bc M l interpretation of OBRA-90 that in order to, bill for annual fees ! /\ A l one must be a licensee of the NRC. Commenters argue that the ! test is whether "any person" receives a service or thing of value from the Commission because OBRA-90 allows the " collection of fees from any person" and "all licenses". That person, whether a l i licensee or not, commenters argue, shall pay fees to cover the NRC's cost of providing such services or thing of value, i Resoonse. With respect to the 10 CFR Part 170 fees 13 I
assessed pursuant to the Independent Offices Appropriation Act (IOAA) of 1952, the NRC is precluded, under the IOAA, from assessing fees to Federal agencies for specific services rendered. The OBRA-90 limits annual fee assessments to licensees of the NRC. Thus, the NRC does assess annual fees under 10 CFR Part 171 to Federal agencies to the extent that those Federal agencies have a license or approval / certificate from the NRC. As indicated in the Conference Report accompanying OBRA-90, the Commission must collect approximately 100 percent of its budget through fees, even though in some instances certain activities are not attributable to an existing NRC licensee or class of licensees. With regard to NRC activities for DOE under the Uranium Mill, Tailings Radiation Control Act (UMTRCA), the NRC'is MM GZ0f& f'/C /?O prohibited from assessing suchefees to Federal agencies. The - h OCAtVlO A fees cannot be assessed under 10 CFR Part 171 because DOE does not possess a license or approval. Thus, the NRC has assessed the costs for review of DOE's UMTRCA actions based on the Conference Report guidance that the costs be " recovered from such licensees as the Commission-in its-discretion determines can fairly, equitable and practicably contribute to their payment." These costs are being recovered from power reactor licensees, not from uranium recovery licensees as implied by the commenters. This
- ~ 1h %l r .IJ was noted in the --' - - ' _3discussionAof the surcharge for power reactors (56FR 31486). The' interaction that NRC has with EPA is necessary for NRC to develop and execute NRC's generic safety regulatoryprograms,primarilyas'a-resultoftheClearAirAct.(
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Thus, some of these costs are for NRC generic regulatory activities for uranium recovery facilities and have been appropriately included in the annual fee. B. Other comments. l
- 1. Comment. The short time frame (30 days) allowed by the NRC for comment on the proposed rule does not provide an adequate l opportunity to comment on the proposed rule.
l Response. The NRC indicated in Section I, Background, of the proposed rule published April 29, 1992 that a 30 day public comment was being provided because Public Law 101-508-requires that NRC collect the-revised FY 1992 fees by September 30, 1992 and that in order to comply with the public law, fees would have to be assessed on an expedited basis to ensure collection of the required fees by the end of the fiscal year (57 FR 18095). "
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- 2. Comment. One commenter indicated.:that sections of the proposed regulation should be included within Preside B h's 4:, c.- w - s. a moratorium of new regulations, g the fees for source material licenses, ' eepecially fee--Category 2A.(2), Class I,.do not meet
*s % J- d u s 4 ') j e c.a v s t key.. aspects of F g l ee they are burdensome, impede economic growth, do not ' incorporate market mechanis4 and do not --- -
provide a systematic = cost benefit realization. d l ' N _ 'N n/9ei 15
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N~ ',W l % n- pkk c&ca V<v a m I' b'*, l py) s Resconse. The President's morptoriuk to-evaluatew 7 N
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$:" ^ t d ; regulations does not apply to the fee regulations @
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di - implement the OBRA-907 (Public Law 101-508). , , - e 6^ f %
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Com nt. everal commenters addressed the proposed j f' e,y change to the S171.16, Category 2A(2) for uranium recovery p,/ L _ j
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licensees. The commenters indicated that dividing the currenti j \ i 2 f Class I facilities into two classes, which has the effect of i
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1 - ['U increasing the annual fee for a mill by 138 percent over the FY e (s/ 1991 levels, does not'seem justified or reasonable and that the proposed rule does not distinguish between active and inactive y facilities. The commenters state that because inactive mill l sites undergoing reclamation do not generate uranium mill
- tailings but are included in fee Category 2.A.(2) Class I, the l
NRC has overstated the costs for the entire category and appropriate adjustments must.be made. Commenters believe that any licensed facility that is serving solely as a cost center and not generating revenues should be exempt from fees. A few commenters indicated that the assessment of annual fees for Part 71 Quality Assurance (QA) Plans that have increased 200% over 1991 levels have no reasonable relationship to the cost of providing regulatory servicesjparticularly when the licensee pays . separately on an hourly basis for all other services received , L from the NRC. Commenters point out that no other licensees or class of licensees is subject to the same exorbitant level of
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h increase as fee Category 10.B.1, QA Program Approval Holders. a 4 t e Response. Public Law 101-508 and the accompanying j Conference Report provide that to the maximum extent practicable, the annual fee shall have a reasonable relationship to the cost of providing regulatory services to the licensees. Consistent
- with the law and the guidance in the Conference Report,-the NRC l allocated its budgeted generic and other regulatory costs not I
j recovered from 10 CFR Part 170 license fees to the major classes
- of licensees. To the extent practicable and where necessary for a more fair and equitable allocation of costs, a major class of 4
l licensees was further subdivided into subclasses. For example,- NRC costs for the uranium recovery class of licensees were i allocated further to " Class I," Class II," and "Other" l I facilities. Within a subclass, the cost was uniformly allocated [ to each license in the subclass based on the premise that there is no significant difference in the generic and other regulatory i services provided to each license within a subclass. This approach and principle were used for all classes of licensees. ( g The co g allocated-to the licenses =within-the Class I subclass are for the safety generic and other regulatory activities that are attributable to this subclass of licensees and that are not j recovered by 10 CFR Part 170. license and_ inspection fees.- These costs were allocated uniformly _to each of the seven licenses j within the Class I subclass, based-on'the-premise that there is 17 L . _
-._-_.___,.~,._...._._.,2.: . . _ .
- ~.-- - . ~ . . . - . - . . . . -- - - - . . ..
M no [ [.significant difference in the generic and other regulatory
,; services provided to each of the seven licenses. The NRC has freexaminedtheallocationofcoststotheClassIuranium t
}recoveryfacilities. This reexamination has been accomplished
- within the framework of the Public Law and accompanying
, Conference Report, and the fundamental principles used by the NRC in establishing annual fees for all classes of licensees. The NRC costs attributable to the Class I facilities subclass are
' W\/ more)lrelated to the fact that a license _ authorizing operation I
!fxist'sandnottowhetherthemill.isactiveorinactive.
,e
/ - Thus,
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i f6 D a uniform all' ocation of costs to each license results in an Ng , I d annual fee that has a reasonable relationship to the generic and-5
%y$iiotherregulatoryservicesprovided.
A i f. s t
. J
% t $With respect to.QA plan approvals,'during the past year,-the NRC
, ct
} l' l(experiencedasignificantnumberofrequestsfromQAapproval
.. b holdeirs to" change their plans.
l l .; j h Many QA approval holders amended s :
.? ! g{their plans, within the window of opportunity provided by-the s
b$;'fNRC, to downgrade the authorized ~use of the plan from
}. " fabrication and use" to "use" only. These changes have resulted L~ J ;: ( in a significant decrease in the number of plans authorizing.
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- ;l q I " fabrication and use" and an increase in the number of plans
^
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y } g authorizing "use only". Therefore, in order to' recover the costs .
*hforplansauthorizing"fabricationanduse"fromfewerapproval L
T-
.)fholders,
{s it is necessary to assess ~a much higher annual fee than - M was assessed in FY 1991. Similarly, to recover the costs for 18
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4 plans authorizing "use only" from an increased number of plan holders has resulted in a lower annual fee for these approval holders.
- 4. Comment. One commenter objected to the NRC proposal to exempt from the FY 1992 annual fee those licensees who filed for termination or possession only during the period Oc ober 1, 1991 through December 31, 1991, indicatingthatitseemkarbitraryto ""*'~
establish such a deadline when changes to a license will occur throughout the year and that licensees should be permitted to file exemption requests related to the FY 1992 fees after December 31, 1991. Another commenter indicated that in cases ,,, d where the fees have substantially increaseg licensees should now be given the option of canceling the license or approval and ~C ==-
,q. ..
avoid 3FY 1992 annual fee. ,_- l Resconte. The Commission indicated in the proposed rulef that during the one month period from the publication of "*"~~~~ the FY 1991 final rule on July 10, 1991, to August 9, 1991, the effective date of the rule, many licensees filed requests for termination with the NRC and were not subject to the FY 1991 annual fees. Many other licensees have either called or written to the NRC since the final rule became effective requesting further clarification and information concerning the annual fees assessed. The NRC is responding to these requests as quickly as possible but it was unable to respond and take appropriate action 19
l l on-all of the requests before the end of the fiscal year on September 30, 1991. Therefore, based on the number of requests filed, the Commission will exempt from the FY 1992 annual fees those licensees, and holders of certificates, registrations, and approvals who either filed for termination of their licenses or approvals or filed for possession only/ storage only licenses during the period October 1, 1991, through December 31, 1991. All other licensees and approval holders who held a-license or approval on October 1, 1991, will be subject to the FY 1992 annual fees. This would not, however, preclude a licensee from filing a specific exemption request with respect to the FY 1992 fees after December 31, 1991. Such requests would be handled on an individual case-by-case basis. With respect'to the comment that licensees now be given the option of canceling.the license or approval and avoid the FY 1992 fee, the NRC notes that licensees were put on , notice in the proposed rule published April and ag D 12, 1991'!; 3;1_ __ the final rule published July 10, 1991, that the NRC would assess annual fees-that would significantly impact a substantial number of its licensees in order to recover-100 percent of its budget authority for.FY 1991 through FY 1995. OEc-AALC-
., ,wiC.) (~ CQ f &~ n C -s G % e l L e M .w s eesq/
- 5. Comment. A few commenters indi.=ted that NRC intends #
to make the final rule establishing the-FY 1992 license and annual fees effective upon publication in violation of the p r ~~~ section 553(b) of the Administration Procedures Act. 20 _ _ _ - _ _ _ _ )
l } ' .
/ l Resoonse. The NRC agade clea . kn.pe/6 Section I, Background,
- of the_ proposed rule that, as in FY 1991, the final rule would become effective 30 days after publication in-the Federal Register. The NRC will send a bill for the amount of the annual fee to the licensee a certificate, registration or approval holder upon publication of the final rule. Payment is due on the effective date of the rule iS V !.2cgrE N y " " N (57 FR 18095). [Mu-o hI r ha There were four groups of comments that were not within the scope of the proposed rule, and therefore, were not evaluated for the purposes of-issuing this final rule. Briefly, they are: 1) the legality of the fees to be assessed by the NRC; 2)-the appropriateness of the NRC budget and regulatory program; 3) the impact of the fees on licensees; and.4) the NRC should base the annual fee on the amount of material, or the size of the licensee's operation.
- 1. Leaality of Fees:
Comment. -Commenters indicate that OBRA-90 fails to set forth adequate standards to guide NRC's discretion =in setting annual charges.under Part'171; therefore, the proposed fees amount to a " tax" rather than a " fee" and NRC lacks legal' authority to promulgate and assess-the charges. 21
..._m . - _ _ _ . _ _ _ - - _ - - - - - - - - - - - - - -
y y ,;w ? * #'o we i,- a a, & !"( r) Besconse: The legal issue 'regdhg the assessment of annual fees were fully addressed in the final rule published by Og .,
- the Commission" July 10, 199 f(Section III, Responses t mm nt
~
item A., Legal issues (56 FR 31473-31475)I. ) b 0+ f;y _ ~ : ,<% w d J,. t AOY^Y Y
- 2. Acoropriateness of NRC budaet and Reaulatory Procram: _
Comment. There were sevr.a commenters who questioned the size of the NRC budget and regulatory program. Some commenters indicated that they would expect a decrease in the NRC budget because of the significant reduction in the number of licensees within the past year and the fact that Maine became an Agreement State during FY 1992. Other commenters do not believe the 42% increase in the budget for uranium recovery activities over the previous year 4isf,justified ed f, J. ,. ; given
/ n . .' the
. qJ,current c_ - N- size of the f licens &5
% uranium industry, eseq.,,,gthere are no activep conventional uranium mines and mills in the U.S. and only three commercially operating in-situ leach facilities, he fee of-$238,700 appears grossly out-of-line with the degree of NRC involvement for uranium recovery sites. Commenters suggest that NRC 1) Ali, freeze fees at FY 1991 levels; 2) distribute copies of the NRC budget cheQ{ bc 25- +- to licensees for approval or disapproval; -
and 3) appoint an outside reviewer to evaluate the scope and
- effectiveness of the NRC' medical program-because the increases are tied to unnecessary and overly expensive medical regulation ,
A .,
, y Ej 22 l . . . - - - . _ .- -- - - . - . -
l
, . , , _ l # D'</
f ,j ]{ c r T gWit * * . ' y 1'* Resoonse. OBRA-90 requires NRC to recover 100 per cent ofs q l 3 its budget authority through fees. The fees being assessed for j ,. . /> : : y , FI 1992 2i h ement this requirement. ! ~~
/
Thepudgetisdevelopedby l the NRC, submitted by President to the Codgress, and approved by l .. the Congress. The resources resulting from the review and decision-process are those necessary for NRC o implement its nis,-, -
.A U_ <L+ G
-
- y Yg ; ggsp ,-a = responsibilities.
J
- The fees must be consistent with this approved budget in order to comply with l OBRA-90. Questions relating to the NRC budget approval process I
werealsbaddressedinthefinalrulepublishedbytheCommission i l i on July 10, 1997 in Section III, Responses to Comments, item E, ~ Other c mnents, (56 FR 31482). k 3 Imoact of Fees on Licensees: i , Comment: Several commenters expressed concern about the impa t of the fees jwith some commenters indicating that an - exem tion be offered to nonprofit medical ~ institutions similar to nonprofit educational institutions and that the previous I exebption from fees for the State and local government be re stablished. Eg.gponse: the impact issues regarding the assessment of-the
/
annual fees were fully addressed by the Commission in the final
/
j rule published July-10, 199g-(see Section III., Response to w i n
' h) m/_ cg y . _%
~
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.sc> s
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comments, item B2. Major Policy Issues - Consideration of non- ! safety impacts in assessing fees.), ) 9 6 d e ~-s = % gp ,8 % s g. pam 40 % /~~ i t% p'< W ch W cm S m'-vw ck & Vw V+ &L. 0-nY
- W"* / ~ W
- 4. Fees based on material oossessed and size of'ooeration. N %
- 4
.n.
m, , Comment. Commenters suggested that the NRC assess fees based on the amount of throughput of material, the size of the facility, the amount or type-of material possessed, the sales generated by the licensed location, the competitive condition of certain markets including the assessment of fees to Agreement States and the effect of fees on domestic and foreign competition. Another-commenter indicated that-it is not fair'and e.s a ll " S equitablep and contrary to the intent of Congress 7 ot assess-UF 6 - converters a fee that is larger than assessed.for a mill. Another commenter stated that the methodology the NRC has-applied is unjustified because it results in increased fees of over 2,000 percent over-1990 fee levels-to some medical. licensees while the risk to the patient remains the same. The commenter suggests that some consideration be given'to the commensurate risk to the patient before exercising-such exorbitant fees on the industry which has not increased the risk.of radiation exposure to the public or to its patients. 1 i Resconse. The issues of basing fees on the amount of . material' possessed, the frequency of use of the material, and-the size of the facilities, were addressed by Commission in the 24 i l
Regulation Flexibility Analysisj which was Appendix A to the final .c= rule published July 10, 1992. (56 FR 31511-31513) ,'0 4 G'"""- ~~~ Q) u ~+f o$ryW W e" e77%~~<D , ^,cv' f-cd- w Ew-a_G G% uCs a7pn et . J . W . W ,-< f~ III. Final Action -- Changes Included in Final Rule Public Law 101-508 requires that the NRC recover approximately 100 percent of its FY 1992 budget authority, J including the funding of its office of the Inspector General, less the appropriations received from the NWF, by assessing license and annual fees. For FY 1992, the NRC's budget authority is $512.5 million, of which approximately $20.0 million has been appropriated from the NWF. Therefore, the Public Law requires that the NRC collect approximately $492.5 million in FY 1992 through Part 170 licensing and inspection fees and Part 171 annual fees. The NRC estimates that approximately $90 million will be recovered in FY 1992 from the fees assessed under Part 170. The remaining $402.5 I million would be recovered through the FY 1992 Part 171 annual fees. l l l The Commission has not changed the basic approach, policies, j and methodology for calculating the Part 170 professional hourly rate, the specific materials licensing and inspection fees in-Part 170, and the Part 171 annual fees set forth in the final rule published July 10, 1991 (56 FR 31472). The public was 25 l l i
~-- y .y y , - , - - - , -
provided an opportunity to comment fully on the basic approach, policies, and methodology used invJuly 10, 1991 final rule. __ Those comments were fully addressed by the Commission in its final rule. That rule has been challenged in Federal court by several parties and those lawsuits are pending. Under this final rule, fees for most licenses will increase because -- (1) NRC's budget has increased. This has resulted in a corresponding increase in the professional hourly rate; and (2) Approximately 2,000 licensees have requested that their licenses be terminated since the FY 1991 final rule was adopted. This has resulted in fewer licensees to pay for the costs of regulatory activities not recovered under 10 CFR Part 170. A. Amendments to Part 170: Fees for Facilities. Materials. Imoort and Excort Licenses, and Other Reculatory Servic,gs. Four amendments have been made to Part 170. These amendments do not change the underlying basis for the regulation -- that fees be assessed to applicants, persons, and licensees for specific identifiable services rendered. These revisions also comply with the guidance in the Conference
# m C&Afk f fO Committee Report that fees assessed under the Independent Offices Appropriation Act (IOAA) recover the full cost to the NRC of all 26 i
4 identifiable regulatory services each applicant or licensee receives. I First, the agency-wide professional hourly rate, which is used to determine the Part 170 fees, is increased from $115 per hour to $123 per hour ($214,509 per direct FTE). The rate is
,..c ~ , . . .: -
based on the FY 1992 direct FTEs and thesFY 1992 budget that is not recovered through the appropriation from the NWF. Second, the current Part 170 licensing and inspection fees in SS 170.21 and 170.31 for all applicants and licensees are increased by seven percent to reflect this increase in the professional hourly rate. Third, the NRC proposes that S5170.21, Facility Category K, and 170.31, Category 15, are amended to make further refinements to the existing fee categories for import and export license applications and amendments. Fourth, the NRC is amending S 170.3 to add a definition for
. nonprofit educational institutions.
B. Amendments to Part 171: Annual Fees for Reactor Operatine Licenses. and Fuel Cycle Licenses and Materials Licenses. Includina Holders of Certificates of Comoliance. Recistrations. and Ouality Assurance Procram Acorovals and 27 l
)
- analysis, the Commission 1
- s continuing for FY 1992 a maximum l annual fee of $1,800 per licensed category for those licensees
- j. who qualify as a.small entity under the NRC's size standards, i
f The lower tier small entity annual fee of $400 per licensed category for certain materials licenseesp which was adopted by the ---- j , Commission bombe effective'May 18,_1992, will apply for FY 1992 ____ (57 FR 13625). l The amounts to be collected.through annual fees-in the proposed amendments to Part 171 are based on the increased l professional hourly rate. The Part 171 annual-fees have been ! w,,
- determined using the same method assused to determine the-FY 1991 ~'
i
- j. annual fees. The proposed amendments to Part-171 do not change i
I the underlying basis for Part 171; that is, charging a-class of i licensees'for NRC costs attributable to that class of licensees. l The changes are consistent with the-Congressional guidance in the i Conference Committee Report, which states that the " conferees contemplate that the NRC will continue to' allocate generic costs
- that are attributable-to a given class.ofLlicensee to such class" and the " conferees intend that the NRC assess the annual charge
- under the principle that licensees who requireI the greatest =
- - expenditures of the agency's resources should pay the greatest i
annual fee." 136 Cong. Rec., at H12692-93. i' C. FY-1992 Budaeted Costs. 4 30
+ -e-r er w, - , - e v. , -,,m-w,w,.y~ e r w -rw-p.y, ,-,,w-sm,,w+y.w,- g, sw-- ,- rv, -,-w--ggv 9- g- eg,g-m.e.,
,+.
These additional charges not directly or solely attributable to a specific class of NRC licensees or costs not recovered from all NRC licensees on the basis of previous Commission policy decisions would be recovered from the designated classes of licensees previously identified. A further discussion and breakdown of the specific costs by major classes of licensees are shown in Section III of this proposed rule. The Commission notes that in prior litigation over NRC annual fees, the U.S. 04eoe64 Court of Appeals for the District of Columbia Circuit concluded that the NRC "did not abuse its discretion by failing to impose the annual fee on all licensees," E.orida Power & Licht Co. v. NRC, 846 F.2d 765, 770 (D.C. Cir. 1988), cert. denied, 109 S. Ct. 1952 (1989). As noted earlier, the conferees on Public Law 101-508 have acknowledged the D.C. Circuit's holding that the. commission was within its legal discretion not to impose fees on all licensees. IV. Section-by-Section Analysis The following analysis of those sections that are affected i 1 under this proposed rule-provides additional' explanatory information. All references are to Title 10, Chapter I, U.S. Code of Federal Regulations. L 33 l
budgeted costs and to more completely recover costs incurred by the Commission in providing licensing and inspection services to identifiable recipients. The fees assessed for services provided under the schedule are based on the professional hourly rate as shown in S 170.20 and any direct program support (contractual services) cost expended by tue NRC. 'Any professional hours expended on or after the effective date of this rule would be assessed at.the FY 1992 rate shown'in S 170.20. Since July 10, 1991, the NRC has continued to receive comments regarding the fees assessed for import and export
~~~~
licenses in accordance with /s S 170.21, Facility Cate' gory K. Based on experience in I implementing these fees for the first time,-the Commission is amending the existing fee categories in this section to provide for more equitable flat fees by expanding the number.of fee categories. Footnote 2 of 5 170.21- is revised to-provide-that~for those I applications currently cn1 file and pending' completion, the
-professional hours expended up.to the effective date:of this rule will be assessed-at the professional. rates established for the June 20, 1984, January 30,-1989, July 2, 1990, and July 10, 1991, rules as appropriate. For topical report-applications currently _-
on file which are still pending completion of=the review,-and for which review costs-have reached'the applicable 1 fee ceiling 38
The definition of a nonprofit educational institution is. added to provide clarification and to more specifically identify those licensees that are exempt from the annual fees under S 171.11(a). Many licensees have commented since the final rule was published that NRC has not defined the term and that the criteria used by the NRC to classify licensees as nonprofit educational institutions are not clear. The NRC is defining the term " nonprofit educational institution" as a public or nonprofit educational institution whose primary function is education, whose programs are accredited.by a nationally recognized accrediting agency or association, who is legally authorized to provide a program of organized instruction or study, who provides an educational program for which it awards academic degrees, and whose educational programs are available to the public. Section 171.11 Exemptions. , Paragraph (a) of this section'is amended;to require that requests for exemption from-the' annual fees mustabe-filed by the. licensee within ninety. (90) days 1from the effective date of the final rule establishing the annual fees. -Based on the NRC's - experience with the filing of exemptionfrequestsLunder the FY-Lpcel 1991. final rule, ammut time' period must be established for the ^ - - " prompt filing of exemption requests. .The Commission is,
- /1 therefore,climiting the filing of' exemption Lrequests onlyi to the
\/:
_ 90 day period-immediately following the effective date of'the -- 41
e. (1) To recover coats relating to LLW disposal generic activities, an additional charge of $155,100 has been added to fee Categories 1.A.(1) and 2. A. (1); an additional charge of 338,800 has been added to fee categories.l.A.(2) and 4.A.; an additional charge of $1,600 has been .tdded to fee Categories 1.B., 1.D., 2.C., 3.A., 3.B., 3.C., 3.L., 3.M., 3.N., 4.B., 4.C., 5.B., 6.A., and 7.B.; and an additional charge of $36,000 has been added to fee Category 17. (2)- To raccup-those costs not recovered-from small entities, an additional charge of $160 has been added to each fee Category, except Categories 10.A., 11., 12., 13.A., 14., 15., 16., 17., and 18. Licensees who qualify as small entities under the provisions of 5 171.16(c) and who submit a completed NRC Form 526 are not subject to the $160 additional charge.
- 11. In See a 171.19, paragraph (b) and (c) are revised to read as follows:
M 171.19 Payment. 6****- (b) For FY 1992 through FY 1995, the Commission will adjust the fourth' quarterly bill for' operating power reactors and certain materials licensees to rec'over.the full amount of the revised annualifee. All other 1,1censees, or holders of a el c certificate, registration, and-approval of-a QA program will be , ;
- = -
132 _ _ _ _ _ _ - _ _ _ _ _ _ _ _ - - - - -- - 0
.e e, 4
thousands of employees. Some firms would be forced to cancel their licenses. One commenter, with receipts of 14ss than $500,000 per year, stated that the proposed rule would, in effect, 4 force it to relinquish its soil density gauge and license, thereby reducing its ability to do its work etfectively. Another commenter noted that the rule-would force the company and many other small businesses to get rid of the materials license altogether. Commenters-stated that the proposed rule would result 3 p in aroemd 10 percent of the well logging licensees terminating their licensos immediately and approximately 25 percent' terminating their licensos before the next annual assessment. Some companies would go out of business. One commanter noted that the proposal would put it, aad several other small companies, out of business or, at the very least, make it hard to survive. Some companies would have budget problems. Many medical licensees commented that, in these times of slashed reimbursemen:s, the proposed increase of the existing fees and the introduction of additional fees would significantly affect their budgets. Another noted that, in view of the cuts by Medicare and other third party _ carriers,-the fees would produce a hardship 138
, n' o 1991 annual fees is lower than originally estimated. The NRC estimated 3,000 certifications in the current rule, which would have resulted in an estimated cost of about $5 million in the small entity subsidy. On the basis of the response to the FY 1991 billings, the 11RC's estimate n'ow-1sj that there are about _-,---
2,000 small entities. The following data showy four different lower tier small -- entity fees, their impact on the licensees, and their impact on the balance between OBRA and RFA. t l Alternative Estimated FY 1992 Estimated Lower Tier Reduction Small Small in Fee FY 1992 Annual Entity Fees Paid Entity for Gauge Subsidy by Small Annual ree Users (%) ($ M) Entitioq_11_H1
$1,200 900 30% $5.0 $4.5 50 5.3 4.2 700 60 5.5 400 4.0 75 6.0 3,5 Each of the alternative lower tier annual foes reduces the annual fee for qualifying nuclear gauge licensees. However, the Commission is establishing an annual fee of $400 for the lower tier small entities because this amount should ensure that the lower tier small entities receive a reduction (75% for small gauge users) substantial enough to mitigate any severe impact.
The amount of the small entity subsidy resulting from this fee would be equivalent to the amount estimated in the July 10, 1991, final rule, increased by 20 percent to account for the FY 1992 budget increase and the reduced number of materials licensees 149
l_ _ . . - _ _ . . _ _ _ _ _ . _ . _ _ _ _ . . - - _ _ , . _ ._ - ! ( i
- 8
} s i i 3 (7590-01) f l NUCLEAR REGULATORY COMMISSION i 10 CFR Parts 170 and 171 RIN: 3150-AE-l j Revision of Fee r av. ales; 100% Fee Recovery, FY 1992 l i l AGENCY: Nuclear-Regulatory Commission. t 4 1 Final rule. ACTION: I
SUMMARY
The Nuclear Regulatory Commission (NRC) in amending the j licensing, 1 inspection, and annual fees charged to its applicants and licensees. I The amendments are necessary to implement Public i Law 201-508, signed 11*.o law on November 5, 1990, which mandates I ! that the NRC recover approximately 100 percent of its budget l authority in Fiscal Year (FY) 1992 less amounts appropriated from the Nuclear Waste Fund (NWF). The amount to be recovered for FY 1992 is approximately $492.5 million. i EFFECTIVE DATE: (30 days after publication) i- FOR FURTHER INFORMATION CONTACT: C. James Holloway, Jr., Office-of thel Controller, U.S. Nuclear: Regulatory Commission, , 1 i[: Washington, DC 20555,-Telephone 301-492-4301. 4
- SUPPLEMENTARY INFORMATION-I. Background.
t a
t i 4 4 foreign country involved. Examples of international cooperative research include the participation of Finland and Spain in severe accident research, Austria on source term research, and Korea on piping integrity research. These costs are not included in NRC's budget request but are paid for by the foreign government or international organization for which the work is being performed. In FY 1991, approximatal) $6 million was collected in the following categories: from domestic entities, foreign governments, and international organizations for their participation in NRC's reactor safety research experiments under the cooperative nuclear safety research program; from foreign governments and international organizations for providing safety assistance and other-services related to promoting the public health and safety; from licensees for the cost af fingerprint examinations and criminal history checks of each individual granted access to safeguards information or unescorted access to a nuclear power plant; from licensees for processing costs and the cost of the office of Personnel Management for conducting i background investigation used as a basis for NRC security clearances for designated licensee representatives and other personnel requiring access to classifien-informat on a d from licensees for the cost of security investigar. ions related
. processing associated with access to foruule. quantities of special nuclear material.
It is anticipated that approximately
.the same amount will be collected in FY 1992.
(_ l. 8 l
f i powers of the county. Response. These types of comments were addressed by the NRC in Section II, Responses to comments, item B., of the final limited rule published by the NRC on April 17, 1992 (56FR 13626-13627). With respect to the question of what constitutes ' gross annual receipts, the NRC stated clearly in establishing the size standards and in the promulgation of the final rule establishing the lower tier small entity fee that the term
" annual receipts" is used in the same manner as used by the Small Business Administration (SBA). In 13 CFR 121.402 (b) (2) annual d' 4/t receipts are defined a . . .
to include all revenue in whatever 62+'[Tuo form received or assessed f?:om whatever sources . . . " (54 FRf' gt/4[ 52647; December 21, 1989) '57 FR 13625; April 17, 1992). , For
~
purposes of qualifying as a small governmental jurisdiction, under the NRC fee regulations, the population of a county includes the population of all cities,_ towns, and villages within the county.
- 6. !!omment. One commenter_ indicated that they had submitted a petition for rulemaking to the NRC to review the FY- _
-1991 methodology so that medical licensees could be treated like - -
similar licensees. The commenter believes the NRC is obligated' to address-the concerns raised in the petition in terms of whether the proposed fee schedule for FY 1992 is consistent with I the methodology adopted-in FY 1991. The commenter suggests that 11 L - L - -a-.- ._ _. - . _ , _ . , _ _.,_ ...,. --___ _ . _ _ _ _ _ . - . - - _ . _ _ . . - _ . . . - , , - . - .
t i l THE MINMAl. INFORMATON REOuESTED FOR THIS CERTIFICATON DOES NOT CONSTrrUTE AN INFORMATON CollECTON i AND, THEREFORE. DOES NOT REOu)RE OM8 APPRCNAL NRC FORM sas US AUCLEAR TEGlA.ATORY Coma 8910N UCENSE I (r.eu NUMBER l CERTIFICATION OF SMALL ENTITY STATUS occxET NuMsER FOR PURPOSES OF ANNUAL FEES IMPOSED UNDER 10 CFR PART 171 INVOICE (AllItams MUST be completed - print or type) NUMBER (SEE REVERSE FOR NRC SIZE STANDARDS) NAME OF UCENSEE I certify that the above named NRC licensee qualifies as a small entty under the size standards established by the NRC for its licensees on December 9,1985 (50 FR 50241). The licensee quallfles as a small entry under the specific size standard Indicated below: NOTEhnual gross receipts includod in the size standards below refer to the licensee's entire business, not so 1-receipts from licensed actMtles]A licensee who is a subsidiary of a large entty does not qualify as a small enthy. (Check one box only)
- 1. A licensee, other than a private practice physician or an educational insthution, with annual gross rece! pts of
$3.500,000 or less.
- 2. A private practice physician with annual gross receipts of $1,000,000 or less.
- 3. An educational institution that is state or publicly supported by jurisdictions of under 50,000 population, l
- 4. An educational Institutio1 that is not state or publicly supported and has fewer than 500 employees.
This certification must be signed by the owner of the entity named above or an official empowered to act on behalf of the entity. WARNING: 18 U.S.C. Section 1001, Act of June 25,1948,62 Stat. 749, makes R a criminal offense to make a willfully false statement or representation to any Department or Agency of the United States as to any matter wkhin l hs jurisdiction. The submittal of wulful falso statements is punishable by fine or imprisonment, or both, and for ( purposes of this certification may result in revocation or suspension of the license, i l CERTIFY UNDER PENALTY OF PERJURY THAT THE FOREGOING IS TRUE AND CORRECT. l SIGNATURE - CERTIFYING OFFICIAL TYPED OR TITLE l PRINTED NAME SIGNATURE DATE hac roa4 6zs U.si)
- . - - . . . - _ _ - . ~ . _ - - . . _ _ . . - . . - - - - - _ - - - -
t t i 4 j assessed pursuant to the Independent Offices Appropriation Act i (IOAA) of 1952, the NRC is precluded, under the IOAA, from assessing fees to Federal agencies for specific services rendered. The OBRA-90 limits annual fee assessments to licensees t of the NRC. Thus, the NRC does assess annual fees under 10 CFR i Part 171 to Federal agencies to the extent that those Federal agencies have a license or approval / certificate from the NRC. As indicated in the Conference Report accompanying OBRA-90, the Commission must collect approximately 100 percent of its budget through fees, even though in some instances certain activities are not attributable to an existing NRC licensee or class of licensees.dfWithregardtoNRCactivitiesforDOEunderthe Ureni.um Mill Tailings Radiation Control Act (UMTRCA), the NRC is y sk 1C p::ohibited from as*s? y,As icc ,en yg j90
' essing seu$t- fees l te Federal agencies, -The Q Q 42 .w., v 46 cn/s /
fees cannot be assessed Y 00 5 under 10 CFR Part 171 because DOE do not possess a license or approval. Thus, the NRC has assessed the costs for review of DOE's UMTRCA actions based on the Confer i Report guidance that the costs be " recovered from such licensees as the conmission in its discretion determines can fairly, equitable and practicably contribute to their payment." These j costs are being recovered from power reactor licensees, not from l uranium recovery licensees as implied by the commenters. This was noted in the final rule discussion of the surcharge for power reactors (56FR 31486). The interaction that NRC has with EPA is necessary for NRC to develop and execute NRC's generic safety regulatory programs, primarily as a result of the Clear Air Act. 14
1 e i a Thus, some of these costs are for NRC generic regulatory activities for uranium recovery facilities and have been 4 appropriately included in the annual fee. i i B. Other comments. l 1. Comment. The short time frame (30 days) allowed by the NRC for comment on the proposed rule does not provide an adequate opportunity to comment on the proposed rule. Response. The NRC indicated in Section I, Backgro'ind, of the proposed rule published April 29, 199;thata30 day public comment was being provided because public Law 101-508 requiresthatNRCcollecttherevisedFY1992feesbySeptemberdy
} 199 and that in order to comply with the public law, fees would have to be assessed on an expedited basis to ensure collection of the required fees by the end of the fiscal year (57 FR 18095).
- 2. Comment.
One commenter indicated that sections of the i proposed regulation should be included within president Bush's moratorium of new regulations as the fees for source material licenses, especially fee Category 2A.(2), Class I, do not meet - key aspects of his proposal as they are burdensome, impede economic growth, do not incorporate market mechanism and do not provide a systematic cost benefit realization. 15
i
- 5 Resoonse. The President's moratorium to evaluate new
; and existing regulations does not apply to the fee regulations of 10 CFR Parts 170 and 171 because the fee rules are required to implement the OBRA-90, (Public Law 101-508).
- 3. Comment. Several commenters addressed the proposed A
change to the S171.16, Category 2A(2,)jfor uranium recovery licensees. The commenters indicated that dividing the current Class I facilities into two classes, which has the'effect of increasing the annual fee for a mill by 138 percent over the FY 1991 levels, does not seem justified or reasonable and that h e proposed rule does not distinguish between active and inactive facilities. The commenters state that because inactive mill j,jb .4j sites undergoing reclamation do not generate uranium m g. gy,.>u jj f, s 7-, gu l > tailings but are included in fee Category 2.A.(2 jclass I, the( gL?L NRC has overstated the costs for the entire category and appropriate adjustments must be made. Commenters believe that any licensed facility that is serving solely as a cost center and l not generating revenues should be exempt from fees. A few commenters indicated that the assessment of annual fees for Part 71 Quality Assurance (QA) Plans that have increased 200% over
- 1991 levels have no reasonable relationship to the cost of providing regulatory services particularly when the licensee pays separately on an hourly basis for all other services received from the NRC. Commenters point out that no other licensees or l class of licensees is subject to the-same exorbitant level of 1
16 l
. - - , , . ~-
( SL L f,p - [ . f , increase as fee Category,/10.B. ly'QA Program Approval Holders. Q-Response. Public Law 101-508 and the accompanying Conference Report provide that to the maximum extent practicable, the annual fee sball have a reasonable relationship to the cost of providing regulatory cervices to the licensees. Consistent with the law and the guidance in the Conference Report, the NRC allocated its budgeted generic and other regulatory costs not recovered from 10 CFR Part 170 license fees to the major classes of licensees. To the extent practicable and where necessary for a more fair and equitable allocation of costs, a major class of licensees was further subdivided into subclasses. For example, NRC costs for the uranium recovery class of licensees were allocated further to " Class I," Class II," and "Other" facilities. Within a subclass, the cost was uniformly allocated to each license in the subclass based on the premise that there is no significant difference in thrs generic and other regulatory services provided to each license within r. subclass. This approach and principle were used for .11 classes of licensees. 1 1 The cost allocated to the licenses within the Class I subclass are for the safety generic and other regulatory activities that are attributable to this subclass of licensees and that are not recovered by 10 CFR Part 170 license and inspection fees. These l costs were allocated uniformly to each of t hicenses within the Class I subclass, based on the premise that there is
,ge o4 w9 17 h L ;[z ,'
p l u N '() < ca # .414' /c:c u b f Qt. /*f /h
4 4
%d f Pf l not a significant difference in the gen e and other regulatory services provided to each of th licenses. The NRC has reexamined the allocation of costs o the Class I uranium
- recovery facilities. This reexamination has been accomplished within the framework of the Public Law and accompanying l Conference Report, and the fundamental principles used by the NRC in establishing annual fees for all classes of licensees. The NRC costs attributable to the Class I facilities subclass are more related to the fact that a license authorizing operation i
- exists and not to whether the mill is active or inactive. Thus, 1
a uniform allocation of costs to each license results in an a' annual fee that has a reasonable relationship to the generic and other regulatory services provided. With respect to QA plan approvals, during the past year, the NRC experienced a significant number of requests from QA approval i holders to change their plans. Many QA approval holders amended their plans, within the window of opportunity provided by the NRC, to downgrade the authorized use of the plan from
" fabrication and use" to "use"'only. These changes have resulted
- in a significant decrease in.the number of plans authorizing II
" fabrication and use" and an increase in the number of plans authorizing "use only". Therefore,.in order to recover the costs for plans authorizing " fabrication and use" from fewer approval holders, it is necessary-to assess a much higher annual fee than j was assessed in FY 1991. Similarly, to recover the costs for
\
18 4
- - . - - + - - - , - w - , , , y +g----a ------,ww--- -,A,--,g.,-.w ce,y..- e +-rw
e 4 4 plans authorizing "use only" from an increased number of plan holders has resulted in a lower annual-fee for these approval , holders.
- 4. Comment. One commenter objected to the NRC proposal to exempt from the FY 1992 annual fee those licensees who filed for termination or possession only during the period october 1, 199 ;
through December 31, 1991, indicating that it seems arbitrary to establish such a deadline when changes to a license will occur throughout the year and that licensees should be permitted to file exemption requests related to the FY 1992 fees after December 31, 1991. Another commenter indicated that in cases
- where the fees have substantially increased licensees should now be given the option of canceling the license or approval and avoid FY 1992 annual fee.
l Resoonse. The Commission indicated in the proposed 9 le at during the one month period from the publication of i 1 eF 991 final rule on July 10, 1991, to August 9, 1991,1the , l ' effective date of the rule, many licensees filed requests for l termination with the NRC and'were not subject to the FY 1991 l-annual fees. Many other licensees have either called or written to the NRC since-the final rule became effective requesting further clarification and information concerning the annual fees assessed. The NRC is responding to these requests as quickly as-possible but it was unable to respond and;take appropriate action : 19
. - - , - - - . . --.-.,.-- ..- - . ~ _ . .
&wme 4ee+4 e Jaw 6a- mJ4m.+ah *-a-m-e 4---ai-h+=e on all of the requests before the end of the fiscal - 3r on September 30, 1991. Therefore, based on the number of requests filed, the Commission will exempt from the FY 1992 annual fees those licensees, and holders of certificates, registrations, and approvals who either filed for termination of their licenses or approvals or filed for possession only/ storage only licenses during the period October 1, 1991, through December 31, 1991.
All other licensees and approval holders who held a license or I approval on october 1, 1991, will be subject to the FY 1992 4 annual fees. This would not, however, preclude a licensee from filing a specific exemption request with respect to the FY 1992 fees after December 31, 1991./y.4f J Ac A IG >I would < < ef GAa kl Such requests 'handl d on & M an individual case-by-case basis. With respect to the comment yd4-that licensees now be given the option of canceling the licens6" /O k or approval and avoid the FY 1992 fee, the NRC notes that
/%
licensees were put o gnotice in the proposed rule published Apr 1 /lj) 199 s well- htf final rule published July 10, 1991, that' t e NRC would assess annual fees that would significantly impact a substantial number of its licensees in order to recover 100 percent of its budget authority for FY 1991 through FY 1995.
- 5. Comment. A few commenters indicated that NRC intends to make the final rule establishing the FY 1992 license and annual fees effective upon publication in violation of the section 553 (b) of' the Administration _ Procedures Act.
20
. i e Responsq. The NRC made clear in Section I, Background, of the proposed rule that, as in FY 1991, the final rule would become effective 30 days after publication in the Federal Register. The NRC will send a bill for the amount of the annual A/ $ ~ fee to the licensee,f certificate, registration or approval holder upon publication of the final rule. Payment is due on the effective date of the rule (57 FR 18095). There were four groups of comments that were not within the scope of the proposed rule, and therefore, were not evaluated for the p rposes of issuing this final rule 9 1_ Briefly, they ares y the legality of the fees to be assessed by the NRC; 2) the appropriateriess of the NRC budget and regulatory program; 3) the _ a impact of the fees on licensees; and 4) the NRC should base the annual fee on the amount of material, or the size of the licensee's operation.
- 1. Leoality of Fees:
Comment. Commenters indicate that OBRA-90 fails to set forth adequate standards to guide NRC's discretion in setting annual charges under part 171; therefore, the proposed fees amount to a " tax" rather than a " fee" and NRC lacks legal authority to promulgate and assess the charges. 21 _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ - - _ - - - _ _ _ _ _ _ . - _ _ _ _ -- I
Response
The legal issues regarding the assessment of annual fees were fully add ed in the final rule published by I the Commission July 10, 1993[-{)Section III, Responses to Comments, item A., Legal issues (56 FR 31473-31475). 2. Accropriateness of NRC budoet and Reculatory ProgEAE: Comment. There were several commenters who questioned the size of the NRC budget and regulatory program. Some commenters indicated that they would expect a decrease in the NRC budget because of the significant reduction in the number of licensees within the past year and the fact that Maine became an Agreement State during FY 1992. Other commenters do not believe the 42% increase in the budget for uranium recovery activities over the previous year is justified given the current size of the licensed uranium industry, e.g., there are no active conventional uranium mines and mills in the U.S. and only three commercially operating i in-situ leach facilities and that the fee of $238,700 appears grossly out-of-line with the degree of NRC involvement for uranium recovery sites. Commenters suggest that NR
- 1) g, freeze fees at FY 1991 levels; 2) distribute copies of the NRC budget a'1__l~2Z _+mt to licensees for approval or disapproval; l
and 3) appoint an cutside reviewer to evaluate the scope and effectiveness of the NRC medical program because the increases l are tied to unnecessary and overly expensive medical regulation , deth. 22
t Response. OBRA-90 requires NRC to recover 10 pe{ pent j f its b"dget authority through fees. The fees being assessed for FY 1992 implement thissrequirement. The budget is developed by the NRC, submitted sident to the Congress, and approved by the Congress. Tne resources resulting from the review and decision process are those necessary for NRC to implement its nuclear safety and safeguards responsibilities. The fees must be consistent with this approved budget in order to comply with OBRA-90. Questions relating to the NRC budget approval process were also addreened in the final rule published by the Commission I on July 10 199, h Section III, Responses to Comments, item I, A Other commen. , (56 FR 31482).
- 3. Imoact of Fees on Licensees:
Comment: Several commenters expressed concern about the impact of the fees with some commenters indicating that an l exemption be offered to nonprofit medical institutions similar to l nonprofit educational institutions and that the previous exemption from fees for the State and local government be reestablished. Response: The impact issues regarding the assessment of the annualfeeswerefullya'dhh5S? by the Commission in the final I rule published July 10 199( (s.e Section III., Response to 23
t ,x ', comme ts, tem B2. Major Policy Issues - Consideration of non-safety impacts in assessing fees.)
- 4. Fees based on material oossessed and size of oceration.
Comment. Commenters suggested that the NRC assess fees based on the amount of throughput of material, the size of the facility, the amount or type of material possessed, the sales generated by the licensed location, the competitive condition of certain markets including the assessment of fees to Agreement States and the effect of fees on domestic and foreign competition. Another commenter indicated that it is not fair and equitable and contrary to the intent of Congress to assess UF 6 converters a fee that is larger than assessed for a mill. Another commenter stated that the methodology the NRC has applied is_ unjustified because it results in increased fees of over 2,000 percent over 1990 fee levels to some medical. licensees while the risk to the patient remains the same, The commenter suggests that some consideration be given to the commensurate risk to the patient before exercising such exorbitant fees on the industry which has not increased the risk of radiation exposure to the public or to-its patients. Resoonse. The issues of basing fees on the amount of material possessed, the-frequency of use of the material, and the size of the facilities, were addressed by Commission in the 24
- _ . , - - . _ _ _ ._ . _ , _ _ _ _ _ . _ _ . . _ . . .2, _.. . . _ ,
.
- i i
Regulation Flexibility An which was Appendix A to the final rule published July 10, 19 9,/. (56 FR 31511-31513) i i III. Final Action -- Changes Included in Final Rule , Public Law 101-508 requires that the NRC recover i approximately 100 percent of its FY 1992 budget authority, including the' funding of its office of the Inspector General, less the appropriations received from the NWF, by assessing license and annual fees. For FY 1992, the NRC's budget authority is-$512.5 million, of which approximately $20.0 million has been appropriated from the NWF. Therefore, the Public Law requires that the NRC collect l approximately $493.5 million in FY 1992 through Part 170 licensing and inspection fees and Part 171 annual fees. The NRC-estimates that approximately $90 illion will-be recovered in FY (([ 9
- 1992 from the fees assessed under Part 170. The remaininWIS402.5 ss- -
's million would be recovered through the FY 1992 Part 171 annual fees.
L The. Commission has not changed the-basic approach, policies, and-methodology--for-calculating the Part 170 professional hourly-rate, the specific materials licensing and inspection fees in Part 170, and the Part 171 annual fees set'forth in the final rule published July 10, 1991'(56 FR 31472). ' The public was
~
25
..----.--...-r.e%--, - -*,r,=-*+-ww .-m-- -w,#w-,- ---w,, e v- e w w w w er-i,--r =mww,-w-,-r c o- -*s-w'=w--w- t-+w w w i -w n- v v er w - *-r- - + e- w-*ww-+we--- -nt<- Y
provided an opportunity to comment fully on the basic approach, policies, and methodology used in July 10, 1 91 f nal rule. Those comments were fully addrjssed by the C asion in its final rule. That rule has been challenged in Federal court by several parties and those lawsuits are pending. Under this final rule, fees for most licenses will increase (( ss cause --- (1) NRC's budget has increased. This has resulted in a corresponding increase in the professional hourly rate; and Q' / g (@ s c {>. AWcl (2) Approximatel ,000 censees have requested that their licenses be terminate h~~cetheFY1991finalrulewasadopted. J This has resulted in fewer licensees to pay for the costs of regulatory activities not recovered under 10 CFR Part 170. A. Amendments to Part 170: Fees for Facilities. Materials. Import and Export Licenses, and Other Reaulatory Services. I Four amendments have been made to Part 170. These amendments do not change the underlying basis for the l 1 regulation -- that fees be assessed to applicants, persons, and ! licensees for specific identifiable services rendered. These revisions also comply with the guidance in the-Conference Committee Report that fees assessed under the Independent Offices Appropriation Act (IOAA) recover the full cost to the NRC of all { 26
identifiable regulatory services each applicant or licensee receives. First, the agency-wide professional hourly rate, which is used to determine the Part 170 fees, is increased from $115 per hour to $123 per hour ($214,509 per direct FTE). The rate is based on the FY 1992 direct FTEs and the FY 1992-budget that is not recovered through the appropriation from-the NWF. Second, the current Part 170 licensing and inspection fees in SS 170.21 and 170.31 for all applicants and licensees are increased by seven percent to reflect this increase in the - professional hourly rate.
.a d wa, x Third, the NRC W S(170.21, Facility Category K, SP and 170.31, Category 15, are amended to make further refinements to the existing fee categories for import and export license applications and amendments.
l Fourth, the NRC is amending S 170.3 to add a definition for nonprofit educational _ institutions. I l- B. Aggpdments to Part 171 Annual Fees for Reactor L Operatina Licenses, ! and Fuel Cycle Licenses and Materials ) Licenses. Includina Holders of Certificates of Comoliance. Reaistrations. ~ and Oualitv Assurance Proaram Anorovals and 27
Government Acencies Licensed by NRC. Five amendments have been made to Part 171. First, SS 171.15, and 171.16 are amended to increase the annual fees for FY 1992 to recover approximately 100 percent of the FY 1992 budget less fees collected under Part 170 and funds appropriated 1 from the NWF. 'G 004',g(P M second, S 171.16, Category 2.A(2),fis amended to divide Class I facilities in the uranium recovery class of licensees into two classes. The additional category (Class II) would recognize those licensees who do not generate uranium mill tailings. Third, S 171.11 is amended to require that licensees who wish to be considered for an exemption from the annual fees file their respective exemption requests within ninety (90) days from the effective date of the rule establishing the annual fees. As in FY 1991, the Commission plans to continue a very high threshold of eligibility for exemption requests and reemphasizes its intent to grant exemptions-sparingly. The Commission notes that during the one-month period from the publication of the FY 1991 final rule on-Julyf10, 1991, to the effective date of the rule on August 9, 1991, many licensees filed requests for termination with the NRC and were not subject 28 l
to the FY 1991 annual fees. Many other licensees have either called or written to the NRC since the final rule became effective requesting further clarification and information concerning the annual fees assessed. The NRC is responding to these requests as quickly as possible but was unable to respond and take action on all of the requests prior to the end of the fiscal year on September 30, 1991. Therefore, based on the number of requests filed, the Commission, for FY 1992, is exempting from the FY 1992 annual fees those licensees, and holders of certificates, registrations, and approvals who either Ms filed for termination of-their license or approval or filed for a f!pa n/cv&q possessionon('lylicenseduri)ngtheperiodOctober1, 1991, through December 31, 1991. All other liceasees and approval holders who held a license or approval or.. October 1, 1991, are subject to the FY 1992 annual fees. Fourth, S 171.19 is amended to-credit the quarterly partial payments made by certain licensees in FY 1992 toward their FY 1992 annual fees. [, As* ._ Fifth, wu. .6Z .
,-___ __ Emped 5 171.5 to add a definition for nonprofit educational institutions.
l l The Commission notes that the impact of the proposed rule on small entities has been evaluated in the Regulatory Flexibility Analysis (see Appendix A to this final rule). Based on this 29
1 i i 1 { analysis, the Commission is continuing for FY 1992 a maximum l
- annual fee of $1,800 per licensed category for those licensees who qualify as a small entity under the NRC's size standards.
The lower tier small entity annual fee of $400 per licensed j category for certain materials licensees which was adopted by the i /d Das.,a i Commission to-be effective May 18, 1992, will apply for FY 1992 i
- (57 FR 13625).
) The amounts to be collected through-annual fees in the I gnummmed amendments to Part 171 are based on the increased professional hourly rate. The Part 171 annual fees have been' determined using the same method as used to determine the FY 1991 annual fees. The pemenske amendments to Part 171 do not change - the underlying basis for Part 171; that is, charging a class of licensees for NRC costs attributable to that class of licensees. The changes are consistent with the Congressional guidance in.the Conference Committee Report, which states that the " conferees contemplate-that the NRC.will continue to allocate generic costs
- l-l that are attributable to a given class of licensee to such class" and the " conferees intend that the NRC assess =the annual charge under the principle that licensees who require the greatest l
i expenditures of the agency's resources should pay the. greatest annual fee." 136 Cong. Rec., at H12692-93. C. FY 1992 Budoeted Costs. 1 30
,,__,. _ _,, _ - . - , . _ . ,. - ,-,_. . . . . _ , . _ _ . . . . ~ , . . _
The FY 1992 budgeted costs by major activity, relating to the amendments to Parts 170 and 171 are shown in Table 1. Table I Recovery of NRC's FY 1992 Budget Authority Proposed Estimated Amount Recovery Method ($ in Millions) Nuclear Waste Fund $20.0 Part 170 (license and 90.1 inspection fees) Part 171 (annual' fees) Power Reactors 322.1 Nonpower Reactors .6 Fuel Facilities 10.5 Spent Fuel Storage .5 Uranium Recovery 2.7 Transportation 5.0 Material Users 32.11/ Subtotal $373.5 Costs remaining to be 28.9 recovered not identified above Total $512.5 1/Includ $6.4 million that will not be recovered from c'hmall materia licensees because of the reduced small entity fees. itY The-$28.9 million-identified for-those activities which are not identified as either Parts 170 or 171 or the NWF in Table I are distributed among the NRC classes of licensees as follows:
$25.1 million to operating power reactors; 31
These additional charges not directly or solely attributable to a specific class of NRC licensees or costs not recovered from all NRC licensees on the basis of previous Commission policy decisions would be recovered from the designated classes of
. licensees previously identified. A further discussion and breakdown of the specific costs by major classes of licensees are shown in Section III of this ginmaposed rule.
The Commission notes that in prior litigation over NRC annual fees, the U.S. Circuit Court of Appeals for the District of Columbia circuit concluded that the NRC "did not abuse its discretion by failing to impose tho annual fee on all licensees," Florida Epwer & Licht Co. v. NRC, 846 F.2d 765, 770 (D.C. Cir. 1988), cert. denied, 109 S. Ct. 1952 (1989). As noted earlier, the confereas on Public Law 101-508 have acknowledged the D.C. Circuit's holding that the Commission was within its legal discretion not to impose fees on all licensees. l IV. Section-by-Section Analysis The following analysis of those' sections that are affected under this proposed rule provides additional explanatory information.. All references are to Title 10, Chapter I, U.S. Code of Federal Regulations. 33 1 e
~ ~
a , , -
-v.r.i. nn-,,,,.---.n -,m.,nwa r---.-,r.n,ww..,,, e.,.n--. ,-v,.. e,,,, -- ,,,-,-,r-,-.,, ..n..- -7,. 4 .-..rg .- e
i budgeted costs and to more completely recover costs incurred by the commission in providing licensing and inspection services to identifiable recipients. The fees assessed for services provided under the schedule are based on the professional hourly rate as shown in S 170.20 and any direct program support (contractual services) cost expended by the NRC. Any professional hours expended on er after the effective date of this rule would be assessed at the FY 1992 rate shown in S 170.20. Since July 10, 1991, the NRC has continued to receive comments regarding the fees assessed for import and export Aicenses in accordance with (( ( S 170.21, Facility Category K. Based on experience in implementing these fees for the first time, the commission is amending the existing fee categories in this section to provide for more equitable flat fees by expanding the number of fee categories. Footnote 2 of S 170.21 is revised to provide that for those i applications currently on file and pending completion, the professional hours expended up to the effective date of this rule will be assessed at the professional rates established for the June 20, 1984, January 30, 1989, July 2, 1990, and July 10, 1991, rules as appropriate. For topical report applications currently on file which are still pending completion of the review, and for which review costs have reached the applicable fee ceiling ! 38
4 4 established by the July 2, 1990, rule, the costs incurred after any applicable ceiling was reached through August 8, 1991, will not be billed to the applicant. Any professional hours expended for the review of topical report applications, amendments, revisions or supplements to a topical report on or after August 9, 1991, are assessed at the'gese,RL Yate established by S 170.20. A Section 170.31 Schedule of Fees for Materials Licenses and other Regulatory Services, including Inspections and Import and Export Licenses. The licensing and inspection fees in this section e.re modified to recover more completely FY 1992 costs incurred by the commission in providing licensing and inspection services to identifiable recipients. Those flat fees, which are based on the average time to review an application or conduct an inspection, are increased by seven (7) percent across the board to reflect the increase in the professional hourly rate from $115 per hour in FY 1991 to $123 per hour in FY 1992. After application of the 7 percent increase to the flat materials fees, the amounts were rounded, as in FY 1991, by applying standard rules of arithmetic N sothattheamountsroundedwouldbedeminimu}hndconvenientto l the user. Fees that are greater than $1,000 are rounded to the nearest $100. Fees under $1,000 are rounded to the nearest $10. I For example, an industrial radiography licensee (Category 39
, n
respond and take appropriate action on all of the requests before the end of the fiscal year on September 30, 1991. Therefore, based on the number of requests filed, the Commission is exempting from the FY 1992 annual fees those licensees, and < holders of certificates, registrations, and approvals who either b filed for termination of_their licenses or approvals or filed for ' yLCfg O WL possession only licenses fduring the period October 1, 1991, through December 31, 1991. All other licensees and approval j,/ k - alt *( { holders who held a license or approval on October 1, 1991, are , g (&p .+ subject to the FY 1992 annual fees. Section '71.15 Annual Fee: Reactor operating licenses. _ The annual fees in this section are revised to reflect the FY 1902 budgeted costs. Paragraphs (b) (3 ) , (c) (2) , (d), and (e) are revised to couply with the requirement of the Public Law to recover approximately 100 percent of the NRC budget for FY 1992. Table IV shows the budgeted costs that have been allocated to operating power reactors. They have been expressed in terms of the NRC's FY 1992 programs and program elements. The resulting total base arrual fee amount for_ power reactors is also shown. On the average, the power reactor base annual fees for FY 1992 have increased abot- reent above the FY 1991 annual fees. Table IV e ALLOCATION oF NRc FY 1992 BUDGET To POWER REACTORS BASE FEESY Program Element Allocated to 43 _ _ _ - _ _ _ _ _ _ _ 1
included in the fee base because historically they have been granted either full or partial exemptions from the annual fees. With respect to Big Rock Point and Yankee Rowe, the Commission in this final rule hereby grants partial exemptions form the FY 1992 annual fees based on requests filed with the Commission in accordance with 5 171.11. -The total amount of $ to be paid by Y the[f3)5(JDlicensees has been subtracted from the total arount to be assessed operating reactors as a surcharge. The Commission, in this final rule, hereby grants full exemptions for Rancho Seco l and Three Mile Island 2 based on the fact that these reactors are l l either permanently or prematurely shutdown and do not intend to i operate in the future. 1 Paragraph (b) (3) is revised to change the fiscal year references from FY 1991 t7 FY 1992. Paragraph (c) (2) is amended l to show the amount of the surcharge for FY 1992, which is added to the base annual fee for each operating power reactor shown in Table V. This surcharge recovers those NRC budgeted costs that are not directly or solely attributable to operating power reactors, but nevertheless must-be recovered-to comply with the requirements of the.Public Law. The Commission has continued its previous policy decision.to recover these coses from operating. power reactors. The FY 1992 brdgeted costs related to the additional charge-and the amount of :he charge are calculated as follows: 52
. _ . _ _ ._. - , . . _ _ . . _ _ - . - - , _ . _ _ - _ _ ~,_ _ ,_ . - . , , . ,
k FY 1992 Budgeted Costs Catecorv of Costs ($ In Millions)
- 1. Activities not attributable to an existing NRC licensee or class of licensee:
- a. reviews for DOE /DOD reactor $4.1 projects, West Valley Demonstration Project, DOE Uranium Mill Tailing Radiation Control Act (UMTRCA) actions;
- b. international cooperative safety 7.9 program and international safeguards activities;
- c. 60% of low level waste disposal 5.8 generic activities; and
- d. uranium enrichment generic activities. .7
- 2. Activities not assessed Part 170 licensing and inspection fees or Part 171 annual fees based on Commission policy:
- a. activities associated with 6.6 nonprofit educational institutions; and
- b. costs not recovered from Part 171 5.5 for small entities.
Subtotal Budgeted Costs $30.6 _Less amount to be assessed to small older reactors with partial exemption under Part 171 -- Total Budgeted Costs- $ The annual additional ~ charge is determined as follows: Total budoeted costs = S30.6 million = $281,000 per Total number of operating 109 operating power power reactors- reactor-On the' basis of this calculation, an operating power reactor, Beaver Valley 1, for example, would pay a base annual- ~ fee of $2,970,000 and an additional. charge yf'$281,00ilor a Q's__' ? h
total annual foo of
< ^
,251,000,for FY 1992.
Glvg . Paragraph (d) is revised to show, in summary form, the amount of the total FY 1992 annual fee, including the surcharge, to be assessed for each major type of operating power reactor. Paragraph (e) is revised to show the amount of the FY 1992 annual fee for non-power (test and research) reactors. In FY 1992, $557,000 in costs are attributable to those commercial and Federal government licensees that are licensed to operate test and research reactors. Applying these costs uniformly to those nonpower reactors which are not exempt from fees results in an C/ 4}f~ annual fee of $55,700 per operating license. <, Section 171.16 Annual fees: Materials Licensees, Holdere of Certificates of Compliance, Holders of Sealed Source and Device Registrations, Holders of Quality Assurance Program Approvals, and Government agencies licensed by the NRC. The introduction to paragraph (c) is being repeated in this final rule for convenience. The change in this paragraph occurred as a part of the final rule published on April 17, 1992 (57 FR 13625) relating to reduced annual fees for certain small entities. Paragraph (c) (4) is revised to indicate that the maximum an.iual fee per licensed category is $1,800 for a small entity in FY 1992. Paragraph (d) is revised to reflect the F'l 1992 budgeted 54
l t costs for materials licensees, including Government agencies licensed by the NRC. These fees are necessary to recover the FY 1992 generic costs totalling 550.8 million epplicable to fuel facilities, uranium recovery facilities, holders of transportation certificates and QA program approvals, and other materials licensees, including holders of sealed source and device registrations. Tables VI and VII show the NRC program elements and resources that are attributable to fuel facilities and materials users, respactively. The costs attributable to the uranium recovery ciass of licensees are those associated with uranium recovery licensing and inspection. For the uranium recovery class of licenses, the current Categor(2(A h for class I C facilities is further divided into Class I and Class II facilities. Class II facilities are those solution mining i licensees, primarily in-situ and heap leach facilities, which do l not generate uranium mill tailings. The NRC has reexamined the uniform allocation of costs to Class I facilities in the-current rule to determine whether there is a significant difference between the regulatory services provided to operating in-situ facilities that do not generate mill tailings as compared to other licensees in Class I. The NRC is dividing the current Class I facilities into two classes to differentiate between those facilities that generate uranium mill tailings and those facilities that do not generate uranium mill tailings because there are generic regulatory activities (e.g., Appendix A to 10 CFR Part 40) that are necessary to regulate uranium mill l 55
. - - ~ - .. - - - . .
Table VI ALLOCATION OF NRC FY 2992 BUDGET TO FUEL FACILITY BASE FEESY Total Allocated to Program Element Fuel Facility Program Program Support Support S,K FTE S,K FTE NUCLEAR SAFETY RESEARCH Environmental Policy and $2,675 8.5 $180 .6
-Decommissioning
-NSR PROGRAM TOTAL $180 .6 NUCLEAR MATERIAL & low LEVEL WASTE SAFETY & SAFEGUARDS REGUTATION Fuel Facilities Lic./ Inspections $2,460 39.1 S A,260 - 27.2 l Event Ew luation --
25.0 -- 3.6-Safeguards Licensing / Inspection 665 21.9 615 16.7 Policy, Threat and Event Assessment 525 13.2 45 .6 i Decommissioning- 1,000 28.1 54 4.7 NMLLWSSR PROGRAM TOTAL $1,974 52.8
====== ======
TOTAL'-- $2,154 53.4
~
_ N TOTAL BASE FEE AMOUNT ALLOCATED To FUEL FACILITIES ,/ 513.6 millionF '
?) . n f l -
LESS PART 170 FUEL FACILITY FEES 3.1 million g I l, '. PART 171 BASE FEES FOR FUEL FACILITIES $10.5 million I 1/ Base annual fee includes all costs attributab Ee fuel facility cJass of licensees. The base fee does not include costs allocated to fuel facilities for policy reasons. 2/ Amount is obtained by multiplying the' direct FTE_ times the rate.per FTE and adding the program support funds. 57
. - .- - . . - -.- - .-~ -. . - - . . _ . ,
Table VII ALLOCATION OF FY 1992 BUDGET TO MATERIAL USERS BASE FEESF Allocated to Total Materiale Users Program Program Support Support
$,K FTE S,K FTE NUCLEAR SAFETY RESEARCH MISSION AREA Human Factors $5,750 5.2 S180 .3 Radiation Protection / Health Effects 6,285 17.5 3,677 M TOTAL S3,857 13.6 NUCLEAR MATERIAL & LOW LEVEL WASTE SAFETY & SAFEGUARDS REGULATION Licensing / Inspection of Materials $2,190 110.5 S1,971 99.5 Users Event Evaluation --
18.2 -- 13.1 Decommissioning 1,000 28.1 446 15,3 7 NMLLWSSR PROGRAM TOTAL S2,417 127.9 l SPECIAL AND INDEPENDENT REVIEWS, INVESTIGATIONS, AND ENFORCEMENT l ! Operational Data Analysis (PE) S100 2.0 I TOTAL $6,374 143.5 t BASE AMOUNT ALLOCATED TO MATERIALS USERS ($,M) 537.1 millionM l [ LESS PART 170 MATERIAL USERS FEES __$ji.d million j 7 PART 171 BASE FEES FOR MATERIAL USERS 2 illion w J 1/ Base annual fee includes all costs attributable to the materials. class of licensees. The base fee does not include costs allocated to materials licensees for policy reasons. 2/ Amount is obtained by multiplying the direct FTE times the rate per FTE and adding the program support funds. 58 l
The allocation of the NRC's $10.5 million in budgeted costs to the individual fuel facilities is based, as in FY 1991, primarily on the conferees' guidance that licensees who require the greatest expenditure of NRC resources should pay the greatest annual fee. Because the two high-enriched fuel manufacturing facilities possess strategic quantities of nuclear materials, more NRC generic safety and safeguards costs (e.g., physical security) are attributable to these facilities. Using this approach, the base annual fee for each facility is shown below. Annual Fee ($ in Thousands) Hich Enriched Fuel Safecuards Safety Intal Nuclear Fuel Services $1,148 $1,147 $2,295 Babcock and Wilcox 1.148 1.147 2.295 Subtotal $2,296 $2,294 $4,590 Low Enriched Fuel Advanced Nuclear Fuels $157 $558 $715 Babcock and Wilcox 157 558 715 General Electric 157 558 715 Westinghouse 157 558 715 Combustion Engineering 157 558 715 (Hematite) Combustion Engineering 157 558 715 (Windsor) Subtotal $942 $3,348 $4,290 s
=%..-- _ _ _ , , _ . - . -
CCW- , 59
specific or general licenses for receipt and storage of spent fuel at an ISFSI. This results in a proposed annual fee of r, ; , {118,000. , To equitably and fairly allocate the $32.1 million attributable to the approximately 7,100 diverse material users and registrants, the NRC has continued to base the annual fee on the Part 170 application and routine inspection fees. Because , the application and inspection fees are indicative of the complexity of the license, this approach continues to provide a- , proxy for allocating the costs to the diverse categories of
- licensees based.on how much it costs NRC to regulate.each i
category. The fee calculation also continues to consider the inspection frequency because the inspection frequency is indicative of'the safety risk and resulting regulatory costs associated with the categories of licensees. In summary, the 1peupmeed annual fee for each category of license is developed as follows: , Annual Fee = (Application Fee + Inspection Fee / Inspection Priority) ac Constant + (Unique Category Costs) The constant is the multiple necessary to recover S32.1 million and is ?.9 for FY 1992. The unique costs are any special costs that the NRC has budgeted _for a specific category of licensees. For FY 1992, unique costs of approximately $2.5 million were identified for.the medical improvement program which is attributable to medical licensees; about $200,000 in costs .i 61
4 were identified a0 being attributable to radiography licensees; and about $100,030 was identified as being attributable to irradiator licensees. On the average, the materials annual fees for FY 1992 are increased about 50 percent above the FY 1991 annual fees. The reason for this significant increase is twofold. First, the FY 1992 budgeted amount attributable to materials licensees is about 20 percent higher than the FY 1991 amount. Second, the number of licensees to be assessed annual fees in FY 1992 has decreased about 21 percent below the FY 1991
,7 m levels (from about(9,000 to about 7, ) The materials fees ,
must be established at these levels in order to comply with Public Law 101-508 to recover 100 percent of the NRC's FY 1992 budget authority. A materials licensee may pay a reduced annual fee if the licensee qualifies as a small entity under the NRC's size standards and certifies that it is a small entity on NRC Form 526. To recover the $5.0 million attributable to the transportation class of licensees, 2 mil 11 be assessed to the Department of Energy (DOE) to cover all of-its transportation casks under Category 18. The remaining transportation costs for generic activities ($3.8 million) are allocated to holders of approved QA plans. The annual fee for ms approved QA plans s $62,800 for users'and fabricators'and $1,500 for users only. / -
$$' tit c i The amount or range of the FY 1992 base annual fees for all materials licensees is summarized as follows:
62 __. ___. , - _ . , ~ . . . _ _ __ - _ ,_
~
Materials Licenses Base Annual Fee Rangadi
/
s \ y Catecorv of License Annual Fees Part 70 - High / : enriched fuel ' $2.3 million Part 70 - Low
< {i enriched fuel '
7'
$715,000 i
i /g, - fLs 3,t l \ / Part 40 - UF 6 conversion $424,000 t Part 40 - Uranium recovery $84,600-$238,700 i Part 30 - Byproduct Material $440-$16,9001/ Part 71 - Transporta-j tion of Radioactive Material $1,500-$62,800 ; Part 72 - Independent \ 1 l Storage of Spent Nuclear ! Fuel i $118,000
\ ym 1/ Excludes the annual fee for a few military "ma' ster" materials irercam of broad-scope issued to Gover'hment agencies which is
$300,0 W etyt 3 Paragraph (e) is amended to establish the additional charge which is added to the base annual fees shown in Paragraph (d) of
.- p t(1s p 6 rule,/ This surcharge continues to be shown, for s s convenience, with the applicable categories in paragraph (d).
The additional charge recovers approximately 40 percent of the NRC budgeted costs of $3.8 million relating to LLW disposal generic activities because 40 percent of the LLW is generated by these licensees. Although these NRC LLW disposal regulatory activities are not directly attributable to materials licensees, the costs nevertheless must be recovered in order to comply with 63
4 the requirements of the Public Law. The Commission has continued the previous policy decision to recover approximately 40 percent of these LLW costs from materials licensees. The FY 1992 budgeted costs related to the additional charge and the amount of the charge are calculated as follows: . FY 1992 Budgeted Costs Cateaory of Costs (S In Millions)
- 1. Activities not attributable to $3.8 an existing NRC licensee or class of licensee, i.e., 40% of LLW disposal generic activities.
Of the $3.8 million in budgeted costs shown above for LLW activities, 50 percent of the amount ($1.9 million) are allocated to fuel facilities included in Part 171 (19 facilities), as follows: $155,100 per HEU, LEU, and UF 6 facility and $38,800 for Q/(.eachoftheothef9 fuel facilities. The remaining 50 percent ($1.9 million) are allocated to the material licensees in categories that generate low level waste (1,090 licensees) as follows: $1,600 per materials licensee except for those in Categories 4A and 17. Those licensees that generate a significant amount of low level waste for purposes of the calculation of the $1,600 surcharge are in fee Categories 1.B, 1.D, 2.C, 3.A, 3.B, 3.C, 3.L, 3.M, 3.N, 4.B, 4. C, 5.B, 6.A, and 7.B. The surcharge for Categories 4A and 17, which also generate and/or dispose of low level waste, is $38,800 for Category 4A and
$36,000 for Category 17.
y!aep . Of the $6.4 million not recovered from small entities, $.9 64
. = .- - . . . - - . . . .- -. - . - - _ _ - _ - - _ _ _ _ _ _ _
t l l NRC's fees were not arbitrary or capricious. With respect to Part 171, on November 5, 1990, Congress passed Public Law 101-508. For FYs 1991 through 1995, Public Law 101-508 requires that approximately 100 percent of the NRC budget authority be recovered. To accomplish this statutory requirement, the NRC, in accordance with S 171.13, is publishing the final amount of the FY 1992 annual fees for operating reactor licensees, fuel cycle licensees, materials licensees, and holders of Certificates of Compliance, registrations of sealed source and devices and QA program approvals, and Government agencies. This Public Law and the Conference Committee Report specifically state that (1) the annual fees will be based on the Commission's FY 1992 budget of $512.5 million less the. amounts collected from Part 170 fees and the funds-directly appropriated from the NWF to g cover the Commission's high level waste program; (2) the annual fees shall, to the maximum extent practicable, have a reasonable relationship to the cost of regulatory services provided by the l Commission; and (3) the annual fees be assessed to those licensees the Commission, in.its discretion, determines can fairly, equitably, and. practicably contribute to.their payment. l 1 Therefore, when developing the pegggmed annual fees for operating power reactors the Commission continued to consider the various reactor vendors, the-types of containment,:and the location of the reactor. The annual fees for fuel cycle licensees, materials licensees, and holders of certificates, registrations and approvals and for licenses issued to Government agencies take-into account the-type of facility or approval and the classes of 68
. ~. _ _ . _ ._ __. , ... . _ . _ . . , _ ,.. _ .
- the license will be at that decided lower operating power level l and not at the 100% capacity.
l 2/ Full cost fees will be determined based on the professional i staff time and appropriate contractual support services expended. For those applications currently on file and for which fees ure determined based on the full cost expended'for the review, the professional staff hours expended for the review of the application up-to the effective date of this rule will be 4 ) determined at the professional rates established for the June 20, i 1984, January 30, 1989, July 2, 1990, and July 10, 19 kules, as appropriate. For those applications currently on file for which review costs have reached an applicable fee ceiling established f by the June 20, 1984, and July 2, 1990, rules but are still i
- pending completion of the review, the cost incurred after any applicable ceiling was reached through January 29, 1989, will not-l be billed to the applicant. Any professional staff-hours expended above those ceilings on or after January 30, 1989, will 4
- be assessed at the applicable rates established by S 170.20,-as
(. appropriate, except for topical reports whose costs exceed
$50,000. Costs which exceed $50,0001for each topical report, I
amendment, revision or supplement to a topical report completed or under review from January 30, 1989, through August 8', 1991, will.not be billed'tolthe applicant. Any 4 professional: hours expended on or-after August 9, 1991, will be assessed at the rate established in S 170.20. In no event will f the total revie costs be less than twice the hourly rate shown 1-d[fCW -
- -~ _,.,,._.,m ..---,-r- ,e.~ -
- . - - ,, .- .~...,.y,..-v.~,,..-.,.,,..rp=-, w-s, ------.,.-.4- ew , , - , ,
= .
s as appropriate. For those applications currently on file for which review costs have reached an applicable fee ceiling established by the June 20, 1984, and July 2, 1990 rules, but are still pending completion of the review, the cost incurred after any applicable ceiling was reached through January 29, 1989, will not be billed to the applicant. Any professional staff-hours expended above those ceilings on or after January 30, 1989, will be assessed at the applicable rates established by S 170.20, as appropriate, except for topical reports whose costs exceed
$50,000. Costs which exceed $50,000 for each topical report, amendment, revision or supplement to a topical report completed or under review from January 30, 1989, through August 8, 1991,-
will not be billed to the applicant. Any professional hours expended on or after August 9, 1991, will be assessed at th rate established in S 170.20. In no event will the total review Lcosts , be less than twice the hourly rate shown in S 170.20. / I/ Licensees paying fees under Categories 1A,.1:B, and 1E are not subject to fees under Categories 1C and 1D for sealed sources authorized in the-same license except in those instances in which an application deals only with the sealed sources authorized by the license. Applicants for new licenses or renewal of existing licenses that cover both byproduct material and special nuclear material in sealed sources.for use in gauging devices will pay the appropriate application or renewal fee for fee Category IC
-only.
105 l 4 l
.~ .
1 authorizing decommissioning, decontamination, reclamation or site restoration activities pursuant to 10 CFR Parts 30, 40, 70, and 72.
- 15. Import and Export licenses N/A U
- 16. Reciprocity N/A U
- 17. Master materials licenses of broad $300,000 scope issued to Government agencies.
Surcharge . . . . . . . . $36,160
- 18. DOE Certificates of Compliance . . . . . $1,200,000 E U Amendments based on applications filed after October 1 of each fiscal year that change the scope of a licensee's program or that cancel a license will not result in any refund or increase in the annual fee for that fiscal year or any portion thereof for the i'
d,yrp # j' fiscal year filed. The annual fee will be waived where the , 3
~
l / license'is Srminated prior to October 1 of each fiscal year, and P.i f./,,/
' the amount of the annual fee will be increased or reduced where 1
h{7 \ p (r
/, y
.e 47 an amendment or revision is issued to increase or decrease the jV hqp scope prior to October 1 of each fiscal year.
y[y*9 F )o. If Cf 3
- f. 37' a person holds mere than one license, certificate, qu' +g registration, or approval, the annual fee (s) will be assessed for l each license, certificate, registration or approval held by that
[ l person. For those licenses that authorize more than one activity i i l 129 L ,
n . s 4 (1) To recover costs relating to LLW disposal generic ! activities, an additional charge of $155,100 has been added to l . l fee Categories 1.A.(1) and 2.A.(1); an additional charge of l
$38,800 has been added to fee categories 1.A.(2) and 4.A.; an l additional charge of $1,600 has been added to fee Categories 1.B., 1.D., 2.C., 3.A., 3.B., 3.C., 3.L., 3.M., 3.N., 4.B., 4.C.,
5.B., 6.A., and 7.B.; and an additional charge of $36,000 has been added to fee Category 17. (2) To recoup those costs not recovered from small entities, an additional charge of $160 has been added to each fee l Category, except Categories V10.)A., U' 11., 12., 13.A., 14., 15., 16., 17., and 18. Licensees who qualify as small entities under the provisions of S 171.16(c) and who submit a completed NRC Form 526 are not subject to the $160 additional charge. 1
- 11. In Section 171.19, paragraph (b) and (c) are revised to read as follows:
S 171.19 Payment. (b) For FY 1992 through FY 1995, the Commission will adjust the fourth quarterly bill for operating power reactors and certain materials licensees to recover the full amount of the
~
revised annual-fee. All other licensees, or holders of a certificate, registration, and approval of a QA program will be 132
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o , i . s s APPENDIX A TO THIS FINAL RULE REGULATORY FLEXIBILITY ANALYSIS FOR THE AMENDMENTS TO 10 CFR PART 170 (LICENSE FEES) AND 10 CFR PART 171 (ANNUAL FEES) l q I. BACKGROUND The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) establishes as a principle of regulatory practice that agencies endeavor to fit regulatory and informational requirements, consistent with applicable statutes, to a scale commensurate with the businesses, organizations, and government jurisdictions to which they apply. To achieve this principle, i l the Act requires that agencies consider the impact of their i' actions on small entities. If the agency cannot certify that a rule will not significantly impact a substantial number of small entities, then a regulatory flexibility analysis is required to I examine the impacts on small entities and the alternatives to minimize these impacts. l To assist in considering these impacts under the' Regulatory Flexibility Act, the NRC adopted size standards for determining , which NRC licensees qualify aus small entities (50 FR 50241* i December 9, 1985).
- D Thesesizestandardswere' clarified {ovemberb j 1991 (56 FR 56672). The NRC size-standards are as follows:
(1) A small business is a business with annual receipts of l $3.5 million.or less except private _ practice physicians for which
~
134 q l
.n .
and some facilities would experience a great deal of I difficulty in meeting this additional burden. t Although it was not clear to what extent these impacts would i materialize at the time the July 10, 1991, final rule was promulgated, it was clear that the proposed annual fees would be t a relatively high portion of the gross revenues of some licensees 7 and far less of a portion for other larger material licensees. L, 0* ' After the final rule was published, approximatel s v approval, and registration terminations were requested. Although some of these terminations were requested because the license was i no longer needed, indications ate that other termination requests were due to the economic impact of the fees. , it ww, & /Ulfcs$& 0%U O" The NRC continues to receive written and oral comments from ! small materials licensees. These comments indicate that the $3.5 million threshold for small entities is not representative of small businesses with gross receipts in the thousands of dollars. These commenters believe that the $1,800 maximum annual fee represents a relatively high percentage of gross annual receipts for these " Mom and Pop" type businesses. Therefore, even the reduced annual fee could have a significant impact on the ability of these types of businesses to continue to operate, i Members of Congress, in many of the more than 100 Congressional letters the NRC has received from them since the July 10, 1991, final rule was published, have expressed concern about the size of the NRC annual fees and their economic impact 139 I i
. - . . - - - . . . - - . . -- - -. - -- - .. ~
,\. .
average license and inspection fees, only small entities who are radiographers would pay slightly more than the current maximum Agreement State fee of approximately $3,800. If the maximum fee l is reduced by $200 (from $2,000 to $1,800), then all categories of materials licensees, including radiographers, would pay no i more for each category than the 1991 maximum Agreement State fee of about $3,800 if the licensee qualifies as a small entity. By establishing the maximum annual fee for small entities at
$1,800, the annual fee for many small entities will be reduced while at the same time materials licensees, including small entities, pay for most of the FY 1991 costs ($22.3 million of the total $27.2 million) attributable to them. Therefore, the NRC has established and will continue, for FY 1992, the maximum annual fee (base annual fee plus surcharge) for certain small entities at $1,800 for each fee category covered by each license issued to a small entity. Note that the costs'not recovered from small entities are allocated to other_ materials licensees and to operating power reactors.
While reducing the impact on many small entities, the Commission. agrees that the current maximum' annual fee of $1,800 for small entities, when added to the Part 170 license and inspection fees, may continue to have a significant impact on materials licensees with annual' gross receipts in the thousands of dollars. _Therefore,-the Commission is pr ;-Tin; to further reduqkthe'impactonsmallentitieswithrelativelylowgross annual receipts. 145 __ _ _._._ _ __. _ . _ _ . - _ . - _ - - - , - _ . .. .- . . _ . .~
.\( . .
4 d r O y/)/77/'/kekC.
/
f 7 1991 annual fees is lower than originally estima)dd. The NRC estimated 3,000 certifications in th urrent r 'which would have resulted in an estimated cost of about $5 million in the ! small entity subsidy. On the basis of the response to the FY l 1991 bill.ings, the NRC's estimate now is that there are about i 2,000 small entities. l l l The following data shows four different lower tier small entity fees, their impact on the licensees, and their impact on the balance between OBRA and RFA. Estimated Alternative FY 1992 Estimated Lower Tier Reduction Small FY 1992 Annual Small in Fee Entity Fees Paid Entity for Gauge Subsidy by Small 1 Annual Fee Users (%) (S M) Entities ($ M) 1 1 $1,200 30% $6.0 $4.5 900 50 5.3 4.2 700 60 5.5 4.0 400 75 6.0 3.5 l Each of the alternative lower tier annual fees reduces the annual fee for qualifying nuclear gauge licensees. However, the Commission h as-d U an annual fee of $400 for the lower eetA' "fe(hing tier small entities because this amount should ensure that the lower tier small entities receive a reduction (75% for small gauge users) substantial enough to mitigate any severe impact. The amount of the small entity subsidy resulting from this fee would be equivalent to the amount estimated in the July 10, 1991, final rule, increased by 20 percent to account for the FY 1992 budget increase and the reduced number of materials licensees 149}}