ML20125E206
| ML20125E206 | |
| Person / Time | |
|---|---|
| Issue date: | 06/22/1992 |
| From: | Lesar M NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Holloway C NRC OFFICE OF THE CONTROLLER |
| Shared Package | |
| ML20125E155 | List: |
| References | |
| FRN-57FR32691, RULE-PR-170, RULE-PR-171 AE20-2-008, AE20-2-8, NUDOCS 9212160244 | |
| Download: ML20125E206 (70) | |
Text
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UNITED STATES o
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NUCLEAR REGULATORY COMMISSION
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f WASHINGTON, D C. 20%6
$~
JUN 2 21992 MEMORANDUM FOR:
C. James Holloway, Jr.
Special Assistant for Fee Policy and Rules Office of the Controller FROM:
Michael T.
Lesar, Chief Rules Review Section Rules and Directives Review Branch Division of Freedom of Information and publications Serviced Office of Administra*ian
SUBJECT:
REVIEW FINAL RULE ENTITLED, " REVISION OF FEE SCHEDULES; 100% FEE RECOVERY, FY 1992"
'he Rules Review Section has reviewed the draft final rule that vill establish the licensing, to licensees and applicants for Fiscal Year 1992. inspection, and annual fees charged We have attached a marked copy of the draft final rule that presents our comments.
The Supplementary Information section of the final rule must reference and discuss the proposed rule that requested public comment on fees to be charged for FY 1992.
suggested language as part of our comments. We have included The Regulatory Flexibility Analysis should summarize the conclusions reached in the rulemaking for the FY 1991 fees and discuss those changes and comments that are new for the FY 1992 fees.
In addition, the Regulatory Flexibility Analysis must contain language that connects the conclusions reached in the rulemaking for the FY 1991 fees to this rulemaking.
included suggested language as part of our comments. We have We have forwarded a copy of this final rule to the Information and Records Management Branch IRM for their comment and concurrence concerning paperwo,rk management aspects of this rulemaking action.
to you.
We have requested that they respond directly In order to assist you in preparing the list of documents centrally relevant to this final rule that is required by NRC's regulatory history procedures, you should place the designator b
"AE20-2" in the uppuc right-hand corner of each document concerning the rule that you forward to the Nuclear Document System.
9212160244 921113 Th' PDR PR V
170 57FR32691 PDR
t C.
James Holloway, Jr.
-2 If you have any quastions concerning this review, please contact me 492-7758.
gf Y1 Michael T.
Lesar, Chief Rules Review Section Rules and Directives Review Branch Division of Freedom of Information and Publications Services office of Administration
Attachment:
As stated cc:
B.
Shelton, IRM i
t t
[7590-01)
NUCLEAR REGUI ATORY 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 applicant s 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 it 7
s 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.
t
(
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.
Backrit Analysis.
I.
Background
Public Law 101-508, the Omnibus Budget Reconciliation Act of 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 NWF for FYs 1991 through 1995 by assessing license, inspection, and annual fees.
I 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 well as the Part 171 annual fees to be assessed to recover approyimately 100 percent The Fr. July /p, /H/ rior/
of the FY 1991 budget.
ule 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
v.
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 vere issued as a final rule on April 17, 1992 with an affective date of May 18, 1992 (57 FR The limit E fiange~to Part 1[0 allows the NRC to bill 3625) 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 f
governmental jurisdictions with a population of less than 20,000.
A k
II.
Responses to Comments C ]p //Al ff05 tl
//ineteenpubliccommentswre 4.. wived by the close of the
(~ ancJ comment period on May 29, 1992I )(n additional seven comments
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.m.
r.c.i..a by the close of business onA Jhae wc June 5, 1992Q L, M = temcomm eods evaluated *^r a t:t:1 f
t....
- ., n _ xts.
jo /)p t/ eve /opwf af lAO bhcr/ F*lP*
Of the twenty six comments, two were from power reactor licensees or their representatives, and twenty four were from 3
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/e persons concerned with other/than pnwar
- st c, including ten pefsterd/alNet af A eeer < al from he uranium industry.
Copiesofallcommentletters[are Hec availableforinspectioninthe(PublicDocumentRoomy 3/>0 4 U#'d NMD fj o en d ere l)y Was hiv;/pn DC Many of the comments uhie were cercid:re' were similar-in nature.
For evaluation purposes, these comments have been grouped, as appropriate, and addressed in the context of the ris finei narrow focus of the rule.
(Zg A. A Whether the Commission has properly applied the methodology adopted in FY 1991 to the FY 1992 budget authority.
1.
Comment.
A'few commenters indicated that the NRC has lhe not provided sufficient information on which jo evaluate [ fee g & F f'
y;f f y ststeil gp [Ylh
-~ W These commenters ic.ll_1t_. that ;he NRC (1) iolated the Administrative Procedure Act (APA) by failing to provide an explanation of how it arrived at its final determination of the i
anAual fees particularly as they apply to fuel cycle facilities; 9
It'I cenrunon the NA L and 2) id not provide sufficient o verify the significant changes in the proposed rule.JPCommenters-recommend L
that NRC make publicly available its Five Year Plan or other documents with an equivalent level of detail to provide the on of information necessary to allow ef fective evaluation fand pe/<='h jf,Jed l
[
fic r oreet l' l,,,,
constructive comments on the proposed rule.
Rescons?.
The NRC believes it has provided sufficient 1
4
. --m l c pid ( ,,, (O ) FY 1992 budge information,to allow effective evaluation and ~ fn ,- /h e constructive comments on the proposed rule. 3 Part III, / Sect'.cn-by-Section Analysis gof the proposed rule published f,f / j % Nel ct'e/as/w April 29, 1992,lprovided "a";. p 7-= c _y aexplanation uvaminy the 3 bY1992budgetedcostsforthevariousclassesoflicenseesbein N# ' p-Mnc pe,ya sedfees[(57FR18097 In addition, the fed wor papers t,/u/ Q_ -6 ye 0" p t b ;hi;h were placed in the public document roomjprovide aca nsut / a1 e ' fo 5. E =- L4 e information conr:erning the development of the fees, including a
- J'gy breakdown of the FY 1992 budget by activity level for the major programs. -The resources shown in the workpapers are the same as
,d&ifie</ thoselin 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 incurring an increase in the area of salaries, benefitsg nd overhead but rathcr an intrease in total NRC spending. l Commenters point out that the NRC professional rate has increased p in byapproximately115 Cove =ra,*,of-seven year period while the Consumer - peseoe PriceIndex(CPI)hasshownaninflationrateofabout22Cfor y-the. the same period. Commenters recommend thatlNRC 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 6 4,cp 7 }}>,m s m-af o be 2t te t. a year or an hourly rate of $119 for FY 1992. ommenterssuggestth;;;f;;T-thatitisinappropriatetoraise[ 5 c
_. --.. - _.. - - =. - - - - . - -~ - - l! y p1W hc O p lA Se* p e (witMJ g t o / ( the professional rate by M f nspection fe g i, 7^...Qthat d the NRC use the CPI or other ces for determining future adjustments to its hourly rates. Resoonse. 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 one t h e. FY 1992 discussed in detail in Part III, Section-by-Section 44 Analysis,fS170.20oftheproposedrule (57 FR 18097). For example, Table II shows the direct FTEs (full time equivalents) by major program for FY 1992 Q nd Table III shows the budgeted costs (salaries and benefits, administrative' support, travel and certain contractual support) which must be recovered through fees assessed for the hours expended by the direct FTEs. The budgeted costs have increased $38.6 million as compared-to FY 1991 levels. This increase in the budgeted costs is the reason why the FY 1992 seen hourly rate must be increased by T percent in FY 1992. The NRC is unable to use the CPI or other indices in the development of g the NRC hourly rate or the fees to be assessed under 10 CFR Parts 170 and 171 because if the hourly rate were increased by only [ paa to ( percent over the FY 1991 levels, the NRC could not meet the j requirement of OBRA-90 to recover approximately 100 percent of / the NRC budget authority through fees. [ ] Jy f.br . At fl"*lJ ]);is,,, (p rp egry gffer/o e "[ 4,,,,,, g,,,, pc,, aceca,,, si,h n '" ' s 7/g pp01%iano/ /sm41"$"'j'",,. y,, ,,,,e f/e < /s l s su/ asses .b ei,.- / 7 h, e n ,,,s n + \\ ! )Vil)e/ v/ ' /p
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s 3. Comment. A few commenters indicated that the NRC may have inappropriately included certain budgeted costs in the fee I One commenter indicated that the /#da*=1 ne i.L snp ore / se/r cGc/ base. nusica v dagF 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
- 9 access authorization program.
This commenter noted that t),e-FY 1992 authorization language indicates that money from these programs may be retained and used for salaries and expences 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 -9, h 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 j 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 be reimbursed by the 7 .r----+-- + r
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i 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 6 governments, and international organizations for their participation in NRC's reactor safety research experiments under the cooperative nuclear safety research program; Pfrom foreign c governments and international organizations for providing safety assistance and other services related to promoting the public healthandsafety;?romlicenseesforthecostoffingerprint f u 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 5-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 I personnel requiring access to classified information and from licensees for the cost of security investigations and related i processing associated with access to formula quantities of cpecialnuclearmaterial.ftisanticipatedthatapproximately the same amount will be collected in FY 1992. 8
s. These funds are not included in the NRC budget request. Theboats 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 i funds appropriated to the NRC and are therefore not charged to licensees. These monies are separately identified in the I and OAs 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. l Tunds 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 1 costs which are allocated to the Nuclear Waste Fund. l l 4. Comment. -One commenter indicated that to assess fee Category 2.A.(2), Class I, fees-to sites undergoing reclamation l l 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.- 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 1 ,-+a, w e -g,, -,7,-- e- ~-n-- --,4-,,,,, ,,eg-, .-_g,w v-~ ,y g,--n-,-,4.,n..,, .e.--y+,,m -,--v
o 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 affective May 18,-1992. While applauding the NRC for developing a lower tier small entity commenters believe that NRC should h)-- jf
- fee, xpand the criteria as to what constitutes a "small entity" and that a sliding scale fee
!? shouldbeconsideredbasedonabilitytopay;[2) reexamine the r tkn comm &en h /ine.%
- method of allocation of casts becausalit is inherently unfair j
/ ( particularly the lower tier small entity fee of $40%)which l fu enablef " mom and pop" operations to remain in business but force 7' roirycmerb4 modest companieg with[small radiographic testing departments to 7 subsidize them; 3) clarify the question as to whether the gross ( hb e annual receipts is considered M income generated only from the th' activities pertaining to the license orfincome generaeed from the MP entire entity composed of various departments; and h) allow small E county governmental jurisdictions to deduct the population of incorporated cities and villages not within the jurisdictional L 10
s /e n*f /t *
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in / """? : powers of the county. Response. These types of comments were addressed by ho NRC in Section II, Responses to comments, item B., of the[g final limited rule published by the NRC on April 17, 1992 (5tWR 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 " 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). 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, s 6. Comment. One comlaenter 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 4 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-hl Ar'f f'IJoss'ly - f}} e d'e; /ky. !n N 0*J * /af)* Y $0!* l-aicw~/r. \\ .; u s u n / r,, n cuuJ. ,.., s i.," i ~ i u >r ~ irn, ?r,s 9 O! 's * *I' , #p s/d '*.o af kn oos Spe en/ c/st/ssk-t, u //p a a r, ,s, is,a c.,,,,, u n,,, a, a c w ~ ~~ ' h/A // clRliess jrbo f' tror /en f h e j unsk lsL / p'o~p o / ptrs& in 'W lYf f*'#'Ylo $* NM nr *y Je. os Ai/ seey.% aof p e c oj iris ip, //> is,
,hph fette OG c r/ m ' !)h fA4 r/efrwseyn,, op' @,,p, ni, e,,ww,,, s~n. J ~ 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 "NRJ 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 4 /Jo /?91 F } / 'st of Public Law 101-508" (57 FR 20213). To adopt ~~an immediate moratorium freezing fees at the FY 1991 level until the petition is considered would result in the NRC not-meeting the requirements of OBRA-90 that NRC recover approximately 100 percent of its budget authority for FY 1992. .7. Comment. One commenter indicated that the NRC did not properly apply the me thodology in FY 1991 to one of its licensees i j . who conducts multiple activities under a single. license. The l l . licensee should be ascessed annual fees for each fee category appliceble to the license. 12 [wh. .-ry.,,,r .,_,,,.,_,,,m.,.y..,,,.y ~..# .,y.., ,~,Uy,. .-,.,.w.,, 3-N m y-.....,,,
'e Response. (NMSS to respond to OC request for additional information.) Severalcommentersindicatedthatit:::::d"f 8. Comment. sqqpo.... C'..mt uranium licensees are being billed for agency overhead that is not attributable to the regulation of the uranium mining industry.7)go& tJ mmenters 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 Zhe whichareassociatedwithuraniumrecovery.hbommentersdisagree t r posi ion with the NRCithat all substantive review at DOE sites is essentially completed prior to the application for a general l license for that site. ommenters sagree ith NRC's interpretation of OBRA-90 that in order to bill'for annual fees 7h%C' l one must be a licensee of the NRC. /pommenters 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 if sepaacs to licensee or not, commenters argue, ph*L pay fees to cover the NRC'scostofprovidingeuekservicesorthingofvalue. I Response. With respect to the 10 CFR Part 170 fees l 13 ,, 2
e, 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 l 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 licensec-or class of licensees. 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 i fees cannot be assesned under 10 CFR Part 171 because DOE does i 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,_ equitablo 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 l was noted;in the final rule discussion of the surcharge for power yW
- ).,11 fo /w i
reactors (SWR 3148 The interaction that-NRC has with EPA-is necessary for NRC to develop and execute NRC's1 generic safety regulatory programs, primarily as a result of-the-Clear Air Act. 14- ,, _ =. - ,__=,__m.,__.. m
I e. Thus, some of these costs are for NRC generic regulatory activities for uranium recovery facilities and have been appropriately included in the annual fee, j 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 I opportunity to comment on the proposed rule. Restense. 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 I'ublic Lr. 101-50" - 06B4 - 2C requires that NRC collect the revised FY 1992 fees by September l 30, 1992 and that in order to comply with the public law, ~ fees would have to be assessed on an expedited basis to ensure 'i 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 I key aspects of his proposal as they are burdensome, impede economicgrowth,donotLincorporatemarketmechanisabanddonot provide a systematic cost benefit ' realization.- 15 -j I
4* 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 lp#f' l implement the OBRA-90g (4Nrtilic hm 101-En f 3. Comment. 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 sites undergoing reclamation do not generate uranium mill 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 i l not generating revenues should be exempt from fees. A few l i 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 subject to the same exorbitant level of 1 16
increase as fee Category 10.B.1, QA Program Approval Holders. OS/A*90 Resoonse. Public L;; 101 Svo 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 i i approach and principle were used for all classes of licensees. /)fThecostallocatedtothelicenseswithintheClassIsubclass areforthesafetz,genericandotherregulatoryactivitiesthat g 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 y o //oc a % n is F n;4m within the Class I subclas33 based on the premise that there is 17
... -. ~. -. - - _ - - - -... -. -.~.-..-.- . -. ~... - _.. - ) I i not a significant difference in the generic and other regulatory c/ouns of services provided to each of the seven licenses. The NRC has reexamined the allocation of costs to the Class I uranium j recovery facilities. 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 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 the NRC gt 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 " 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 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 was assessed in FY 1991. Similarly, to recover the costs for ' 18- \\ 4 s. -, rm ,e A__ e -,-.m J...,.,-.,- -- % ; Jw - -_...ma...,,, e,,., ,_.r. --._._.._.-,-.m.-.
O 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 onl4 during the period October 1, 1991 JbVI Gwnv en /ro through December 31, 19949 Findicatic{tatitseemsarbitraryto 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 7 be given the option of canceling the license or approval and avoid al feeg go /heCommissionindicate)htheproposed Resoonse rule,fthat 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
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 ,dn c'forp/NO fees after December 31, 1991. requestjwouldbehandledon a%indi.dcaL ase-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 n 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. 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
1 i Response. 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 I M fee to the licensee I certificate, registration or approval holder upon publication of the final rule. Payment is due on the effectiva date of the rule (57 FR 18095 j y /p;j There were four groups of comments that were not within the scopa nf the proposed rule, and therefore,--were not evaluated for- . - fp the purposes of issuing.thic final rule. Briefly, they are[ (1). S ,thelegalityofthefeestobeassessedbytheNRC;(2) the s-appropriateness of the NRC budget and regulatory program; 3) the !? impact of the fees on licensees; and (4) th; ::.= rhruld h:2 the b annual fee on the amount of material, or the size of the-licensee's operation, g yf i 1, Lecality of Feest i-Comment. Commenters indicate that OBRA-90 fails to set forth adequate standards to guide NRC's discretion in setting i annual charges under Part 17 Q - arefore, the proposed; fees l amount to a " tax" rather than a " fee" and NRC lacks legal t authority to promulgate and assess the charges.- .21' l l . - ~ .-u-. u....- -__,__..,.-_...u_.a.._ _ _. _.. ~. _...... - _... - _., _
Besconsag The legal issues regarding the assessment of annual fees were fully addressed in the final rule published by the Commission July 10, 199[ Section III, Responses to Comments, item A., Legal issues (56 FR 31473-31475). 2. Acorooriateness of NRC budaet and Reculatory Procranf) 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 p State during FY 1992. Other commenters do not believe the 42 l' increase in tne budget for uranium recovery activities over the previous year is justified given the current size of the licensed Berac e uranium industryg) there are no active conventional uranium spell 90'. minesandmillsintheOU.S and only three commercially operating I in-situ leach facilities eud Lhst he fee of $238,700 appears grossly out-of-line with the degree of NRC involvement for m fr uranium recovery sites. CommenterssuggestthatNRCfh-)en{[, P freezefeesatFY1991 levels;(2) distribute copies of the NRC ,c n budget ch: ld L. =.u k o licensees for approval or disapproval; t 7 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, ambs. 22 -,~y.,'re,--m,y'. y ~, ,,,,,-,,y,-. _.,,,, -,7. ~,,,,--.--#_%...,_- w. .4,,., .w..r ..m ..wy,
Response. 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 trRC, 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, 199hinSectionIII, Responses to Comments, item E, Other comments, (56 FR 31482). Imoact of Fees on Licenseesg 3. Commentg Several commenters expressed concern about the impact of the fee gwhh some commenters indicati t at 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. Resoonsep The impact issues regarding the assessment of the annual fees were fully addressed by the Commission in the final rule published July 10, 199 (see Section III., Response to / 23
h i comments, item B2. Major Policy Issues - Consideration of non-safety impacts in assessing fees.) 4. Fees based on material possessed 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 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. Response. 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-
. ~.. Regulation Flexibility Analysis which was Appendix A to the final rule published July 10, 1990 FR 31511-31513) D III. Final Action -- Changes Included in Final Rule 1 (j// - ?O P^14m t-101-50 quires that the NRC recover approximately 100 percent of its FY 1992 budget authority, including the funding of its offir1 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 OSA4 - ?P La 7 equires that the NRC collect the NWF. Therefore, +ha D"h14-r 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 lun 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 Commission has not changed the basic approach, policies, and methodology for calculating the Part 170 professional hourly rate, th6 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 u..
to the FY 1991 annu 11 fees. Many other licensees have either called or writtea 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 filed for termination of their license or approval or filed for a possession 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 l 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 l 1992 annual fees. Fifth, the NRC proposes to amend S 171.5 to add a definition l for nonprofit educational institutions. I 7 ('in e The Commission notes that the impact of th pr^r^redruleon. small entities has been evaluated in the Regulatory Flexibility Analysis-(see Appendix A to this final rule). Based on this 29 .~
l l e t { analysis, the Commission is continuing for FY 1992 a maximum annual fee of $1,800 per licensed category for thoco licensees a who qualify as a small entity under the NRC's size standards. 4 l The lower tier small entity annual fee of $400 per licensed I category for certain materials-licensees which was adopted by the L o oF l Commission de-be!effectiveb~ay.r M 18, 1992, will apply for FY 1992 i P i (57 FR 13625). 0 /)Sa / ff
- l j7
/ o s-l The amounts to be collected through eanual fees in the proposed amendments to Part 171 are based on the increased professional hourly rate. The Part 171. annual fees have been determined using the same method as used to determine the FY 1991 annual fees. The[p epeeed% amendments to Part 171 do not change the underlying basis for Part 171; that is, charging a class of licensees for NRC costs attributable to that class of 1.icer. sees. The changes are consistent with the-Congressional guidance in the Conference Committee Report, which states that the " conferees contemplate that the NRC will continue to allocate generic costs 4 that are attributable to a given class of licensee to-such class" and the " conferees intend that the NRC assess the annual charge under the principle that licensees whourequire the greatest expenditures of the agency's resources should-pay the greatest annual fee." 136 Cong. Rec., at H12692-93. C. PY 1992 Budaeted Costs. 30 ,n- --v-- -<v-my , ws e ~ ,e, r est m'a w w re-w-s-ww vr +-y
O i a s. 4 The FY 1992 budgeted costs by major activity, relating to the amendments to Parts 170 and 171 are shown in Table I. t i Table I i Recovery of NRC'o FY 1992 Budget Authority TTT;:::d b' Estimated Amount l Recovery Method ($ in Millions) I i Nuclear Waste Fund $20.0 Part 170 (license and 90.1 i inspection fees) j Part 171 (annual fees) 1 Power Reactors 3 5.',1 Nonpower Reactors .5 Fuel Facilities 10.L Spent Fuel Storage .5 Uranium Recovery 2.7 j ' Transportation 5.0 Material Users 32.11/ Subtotal $373.5 Costs. remaining to be 28.9 l ' recovered not identified j above f Total $512.5 f 1/ ncludes $6.4 million that will not be recovered from I small materials licensees because of the reduced small entity fees. The $28.9 million identified for those activities which are i j not identified as either Parts'170 or 171 or.the NWF in Table I i are distributed among the NRC classes of licensees-as follows: $25.1-million to operating power reactors; 4 31 i 4 --;,,,, _,,,...., - - -, ~ -,, ~., -.,, <.,,,,
l $1.9 million to~ full facilities; and $1.9 million to other materials licensees. In addition, approximately $6.4 million must be collected as l a result of continuing the $1,800 maximum fee'for small entities-l and the lower tier small entity fee of $100 for certain i licensees. In order for the Commission to recover 100 percent of C'GM -90 -its budget authority in accordance with th Publi LaE the commission will recover $5.5 million-of the $6.4 million from operating power reactors and the remaining S.9.million from large entities that are not reactor licensees. } This distribution results.in an additional charge i (surcharge) of.approximately $281,000 per' operating pc. c reactor; $155,100 for each HEU,fLEU, and UF fuel.1acility;- 6 $38,800 for each other fuel facility licensee and wtste disposal licensee in Category 4A;'$1,600-for each materials licensee in a ) l l category that generates a significant amount of low 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 annualcfee.of-approximately $3.2.million-per-operating power reactor. The total-fuel facility annual' fee would lua between approximately-$0.11million and-$2.5 million. The total annual fee.for materials-licenses would vary depending i on-the' fee category (ies) assigned to the-license. l ] 32 J l' _.. _ _. - -.... _. _.. _ ~ _.. _,... _. _..,.. -, _.., _ _.... _. -. _, _ -, _.,,,..,. -, _,. _, -
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 showninSection(IIofthisprepecedrule. _ finol y-m 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), cert. denied, 109 S. Ct. 1952 (1989). As noted earlier, y- 00n+- to the conferees on Public L=u 101-503 have acknowledged the D.C. Circuit's holding that the Commission was within its legal discretion not to impose fees on all licensees. 1 1 l l IV. Section-by-section Analysis l l The-following analysis of those sections that are affected j under this rul provides additional explanatory l information. All references are to Title 10, Chapter I, U.S. Code of Federal Regulations. 33
.J Part 170 Section 170.3 Ds 017).tions. The definition of a nonprofit educational institution is added to more specifically identify those applicants and licensees that are exempt from fees under S 170.11(a) (4) of the Commission regulations. any licensees have co since the Fi' 1991 final rule was published that the 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 e the public. Section-170.20 Average' cost per professional staff hour. This section is amended to reflect an agency-wide' professional staff-hour rate based on FY 1992 budgeted costs. Accordingly, the NRC professional staff-hour rate for FY 1992 for all fee categories that are based-on. full cost is $123 per hour, 34
_ ~.._ ._._._._.~ _ _ _. _, i O l t or $214,509 per direct.FTE. The rate.s baaed on the FY 1992 direct FTEs and NRC budgeted costs that are not recovered through-I/Je sole .. f-1/no //co/. ~ theappropriationfromtheNWygendFiscalculatedusingthMFY foe /%se y is gtffcmlif'~ 199h[ method 'as follows: f'o it O lbC 1. All direct FTEs are identified in Table II by major program. Table II Allocation of Direct FTEs 4 by Major Program Number Major Program ofd{7ect FTEs_ Reactor Safety & Safeguards Regulation. 1070.4 Nuclear Safety.Research 154.1 Nuclear Material & Low-Level. Waste Safety & Safeguards-Regulation-294.5 Special and-Independent Reviews,fInvestigations, and Enforcement . o. 71.0 -...... ~ Nuclear Material Management. and Support 23.0-L 1613.62/- L Total direct FTE.......- ' 1/ Regional; employees are counted in the office of:-'the. program i each supports. l .-to-be-Lin direct support of NRC non-NWF programs. The; remaining 2/ In FY:1992', l',613 FTEs ofIthe' total 3,261 FTEs are considered 35 --~.m,,4o- ,,,..,v. ..,,,,,,,,,.-,-y-,, ,y,,.,, v,+7.e... ..,..ym.,=.c.,9 .,mu. .,f
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 i 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 l 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 ;;) I[170.21, Facility Category K. Based on experience in l 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 assessed at the professional rates established for the l 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
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 P.egulatory Services, including Inspections and Import and Export Licenses. The licensing and inspection fees in this section are lhe modifiedtorecovermorecompletelybFY1992costsincurredbythe commission in providing licensing and inspection services to identifiable recipiente. Those flat fees, which are based on the average time to review an application or conduct an inspection, areincreasedbysevenp*(percentacrosstheboardtoreflect 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 Seva f 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 example, an industrial radiography licensee (Category 39
4 3.0.) will pay revised license and inspection fees as follows:' Current Proposed Tvoe of Fees Eggg - Increase FY 1992 Fees Application $3,000 7%' $3,200 Renewal 1,800 7% 1,900 Amendment 490 7% 520 Routine Inspection 1,200 7% 1,300 Nonroutine Inspection 2,500 7% 2,700 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 16g are assessed for applications' filed or-inspections conducted on or after the effective date of this-rule. Based on experience in implementing the import and export license fees assessed under fee Category 15, the Commission is amending the existing fee categories to provide for more. equitable flat fees by expanding the number of fee categories. For those licensing, inspection,'and review fees assessed! l- -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 S 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 1 ~,, a-.- ., -.... - ~. -. -..
I es 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). ( fany licensees have-"Yommentet) since the final rule A waspublishedfhatNRChasnotdefinedthetermandthatthe criteria used by the NRC to classify licensees as nonprofit educe.tional 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. l 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 l 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 enty to the 90 day period immediately following the effective date of the 41
rule establishing the annual fees. Absent extraordinary circumstances, any exemption requests filed beyond that date will not be considered. The Commission, in making this change, is not intending to change its exemption policy. As in FY 1991, the Commission plans to continue a very threshold fo Q (eligibilitylE5r~exemptionrequestsandreemphasizesitsintentto U-grant exemptions sparingly. Therefore, the Commission strongly discourages the filing of exemption requests by licensees who have previously had exemption requests denied unless there are significantly changed circumstances. Exemption requests, or any requests to clarify the bill, 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. Therefore, only payment will ensure avoidance of interest, administrative, and penalty charges. i The Commission notes 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 f o #pl' called or written to the NRC since the final rule became lg / .s 7 effective requesting further clarification and information lb;; concerning the annual fees assessed. The NRC respondin to /t d these requests as quickly as possible but it was unable to ( /'# (A 42 m v a
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 filed for termination of their licenses or approvals or filed for possession 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, are subject to the FY 1992 annual fees. Section 171.15 Annual Fee: Reactor operating licenses. The annual fees in this section are revised to reflect the FY 1992 budgeted costs. paragraphs (b) ( 3), (c) (2), (d), and (e) CORA - 90 are revised to comply with the requirement of b)4 Public Lay to recover approximately 100 percent of the NRC budget for FY 1992. Table IV shows the budgeted costs that have been allocated to j operating power reactors. They have_been expressed in terms of the NRC's FY 1992 programs and program elements. The resulting I total base annual fee amount for power reactors is also shown. 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 l ALLOCATION OF NRC FY 1992 BUDGET To POWER REACTORS BASE FEESV Program Element Allocated to 43 . -, ~..
s l l 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 R this final rule hereby grants partial exemptions form the FY 1992
- A 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 Offd-90 requirements of The Commission has continued its previous policy decision to recover these costs from operating power reactors. The FY 1992 budgeted costs related to the additional charge and the amount of the charge are calculated as follows: 52
1 i l l tailings. l For transportation, the costs are those budgeted for transportation research, licensing and inspection. Similarly, l the budgeted costs for spent fuel storage are those for spent fuel storage research, licensing and inspection. l l l l l 56-
i specific or general licenses for receipt and storage of spent This results in a[ mev.' fuel at an ISFSI. annual fee of $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 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 proposed annual fee for each category of license is developed as follows: Annual-Fee = (Application Fee + Inspection Fee / Inspection 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 special1 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 -61
were identified as being attributable to radiography licensees; and about $100,000 was identified as being attributable to l j irradiator licensees. On the average, the materials annual fees l for FY 1992 are increased about 50 percent above the FY 1991 l annual fees. The reason for this significant increase is twofold. First, the FY 1992 budgeted amount attributable to materials licensees is about 20 percent higher than the FY 1991 I amount. Second, the number of licensees to be assessed annual fees in FY'1992 has decreased about 21 percent below the FY 1991 l levels (from about 9,000 to about 7,000). Thematerialsfees[ g must be established at these levels in order to comply with p(($h' a' 08M - PO fp (Fwilic Law O 201 500 to recover 100 percent of the NRC's FY 1992Nm_ 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, $1.2 million will be assessed to the Department of Energy (DOE) to cover all of its transportation casks under Category 18. The remaining I 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 for users only. l The amount or range of the FY 1992 base annual fees for all 1 materials licensees is summarized as follows: 62
a l Materials Licenses Base Annual Fee Ranaes I. Cateaory of License Annual Fees L Part 70 - High j enriched fuel $2.3-million' i Part 70 - Low l enriched fuel $715,000 Part 40 - UF-6 conversion $424,000 Par t 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 i Storage of Spent Nuclear Fuel $118,000 L 1/ Excludes the annual fee for a few= military " master" materials i licenses of broad-scope issued to Government agencies which is $300,000. Paragraph (e).is' amended to establish-the additional charge -which is added to the base annual fees shown in aragraph (d):of T /G~n a l. this pimev..a(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=$3'.8Laillion relating to LLWLdisposal generic-activities.because 40 percent of-the LLW.is generated by= these-licensees ~ Although these NRC LLW: disposal regulatory activities are not directly attributable to materials: licensees, s 3 the= costs-nevertheless must be-recovered in order to comply;with 63 1 ,,.,,ev-.--..., --,..___,,+1 ---,-rwy- --<,e.--w --=-e4.,e~.v -.<we-v4 ,, ave-4-+r
===---.we 4r e e =-,*.--..*1-- e.-- e--+*--------.---
06/t& ~ PC r therequirementsoftpeP"h'4" t The Commission has continued the previous policy decision to recover approximately 40 percent of these LLW costs from materials licensees. The FY 1992 budgeted costs related to the additional charge and the amount of the charge are calculated as follows: FY 1992 Budgeted Costs Catecorv of Costs ($ 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 facility and $38,800 for 6 each of the other 9 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 l l 7.B. The surcharge for Categories 4A and 17, which also generate l and/or dispose of low level waste, is $38,800 for Category 4A and l $36,000 for Category 17. Of the $6.4 million not recovered from small entities, $.9 64
l NRC's fees were not arbitrary or capricious.S A g yp,p y ; /j@ H d'e c cr e s /> b N' gg g l' 77 With respect to Part 171, on November 5, 1990, Congress ~ passed Public Law 101-508). For FYs 1991 through 1995,-Public L&+ q ^ocna- ?O _1 500 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 holdars of Certificates of Compliance, registrations of sealed source and devices and QA program approvals, and Government agencies. Th44 - CGAA - ? O z rublic Lau 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 p Commission; and (3) the annual fees be assessed;to those ~ licensees the Commission, in its_ discretion, determines can { fairly, equitably, and practicably contribute to their_ payment. Therefore, when developing the 1 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 ,-.-.-.-.-..-...__,_.__.~-._...,-.-..,.a.-~.
i power plants and reactors, Source material, Special nuclear material, Holders of certificates, registrations, approvals, Penalties. For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Parts 170, and 171. PART 170 -- FEES FOR FACILITIES, MATERIALS, IMPORT AND EXPORT LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT OF 1954, AS AMENDED 1. The authority citation for Part 170 continues to read as follows: Authority: 31 U.S.C. 9701, 96 Stat. 1051; sec. 301, Pub. L. 92-314, 86 Stat. 222 (42 U.S.C. 2201w); sec. 201, 88 Stat. 1242, l as amended (42 U.S.C. 5841). 2. In S 170.3, the definition nonorofit educational institution is added to read as follows: S 170.3 Definitions. W Y Y f W Nonorofit educational institution means a public or non-t profit educational institution whose primary function is education, whose programs are accredited by a nationally l 71 I
i 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: E 170.20 Averace cost Der orofessional staff-hour. Fees for permits, licenses, amendments, renewals, special projects, Part 55 requalification and replacement examinations q and tests, other required reviews, approvals, and inspections g under 55170.21 and 170.31 that are based upon the-full. costs for N the review or inspection will be calculated using a professional staff-hour rate equivalent to the sum of the average cost to the k qs agency for a professional staff member, including-salary and- -g h benefits, administrative support, travel, and certain program \\f[y support. The professional staff-hour rate for the NRC based on ~ 53 3 the FY 1992 budget is $123 per hour.. D$ p 4. In S 170.21, the introductory paragraph Category'Ky .are. revised to read as follows: E 170.21 Schedule of fees for oroduction and-utilization facilities, review of standard referenced desian-accrovals. 72: -.. ;. - - a ;- -
8 i U in S 170.20, qL g f N 5. Section 170.31 is revised to read as follows: 4 170.31 Schedule of fees for materials licenses and other reculatory services. includina insoections, and imoort and exoort 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. I l l l l 77
i 2 B. Evaluation of 10 CFR Part 71 quality-assurance programs: Application - Approval... $250 Renewal $250-Amendment $250 Inspections: Routine Full Cost Nonroutine Full Cost 11. Review of standardized' spent. fuel. facilities: l Approval, Renewal, Amendment. .. - Full' Cost-Inspections Full-Cost-l 12. Special projects:: Approvals and preapplication /- licensing activities. Full Cost -Inspections Full Cost .x 13. A.= Spent fuel storage cask Certificate-- of Compliance: -Approvals. .- Full Cost-Amendments,-revisions and supplements Full Cost-97 . ~. - .:~..........-.....-.-...-.....-..~..-..
i due upon notification by the Commission in accordance with S 170.12(b), (e) and (f). (c) Renewal /reaooroval fees - Applications for renewal of licenses and approvals must be accompanied by the prescribed renewal fee for each category, except that fees for applications for renewal of licenses and approvals subject to full cost fees ~ (fee Categories 1A, 1B,.1E, 2A, 4A, SB, 10A, 11, 12, 13A, and 14) are due upon notification by the Commission in accordance with S 170.12(d). (d) Amendment fees - (1) Applications for amendments to licenses and approvals, except those subject to fees assessed at full costs, must be accompanied by the prescribed' amendment fee for each license l affected. An application for an amendment to a license or approval claccified in more than one fee category must be accompanied by the prescribed amendment fee for the category affected by the amendment unless the amendment is applicable to two or more fee categories in which case the amendment fee for the highest fee category would apply. For those licenses and approvals subject to full costs-(fee Categories 1A, 1B, 1E, 2A, 4A, 5B, 10A, 11,.12, 13A,-and 14), amendment fees are due upon-notification by the Commission in accordance with S 170.12 (c). i (2) An application for amendment to a materials license or approval that would-place the license or approval in a higher fee. -102-
i as appropriate. For those application.1' currently on file for which review costs have reached sn 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 reLched 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 [f' 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 l be less than twice the hourly rate shown in S 170.20. l U Licensees paying fees under Categories 1A,.1B, and 1E are not subject to fees under Categories 1C and 1D for sealed sources authorized in the same license except in those instances in which an application deals'only with the sealed sources authorized by the license.- Applicants for new licenses or renewal of existing-i licenses that cover both byproduct material and special nuclear l material in sealed sources for use in gauging devices will pay the appropriate application or-renewal fee for fee Category 1C only. l 105
.. _ -.. ~ _ i A/ or a license authorizing shielded radiographic F l installations or manufacturing installations at more than one address, a separate fee will be assessed for inspection of each location, except that if the multiple' installations are inspected during a single visit, a single inspection fee will be assessed. ~ PART 171 -- ANNUAL FEES FOR REACTOR OPERATING LICENSES, AND FUEL ~ CYCLE LICENSES AND MATERIALS LICENSES, INCLUDING HOLDERS OF u CERTIFICATES 0F COMPLIANCE, REGISTRATIONS, AND QUALI Y ASSURANCE PROGRAM APPROVALS AND GOVERNMENT AGENCIES LICENSED BY THE NRC. 6. The. authority citation for Part1171 is revised to read as follows: I Authority: Sec.L7601, Pub. L. 99-272, 100 Stat. 146, as amended by sec. 5601, Pub. L..100-203, 101 Stat. 1330, as amended by Sec. 3201,-Pub. L. 101-239,-103 Stat. 2106 as amended-by sec. 6101, Pub. L. 101-508, 104-Stat. 1388, (42 U.S.C. 2213); sec. 301,. Pub. L. 92-314, 86 Stat' 222-(42-U.S.C. 2201(w)); sec. 201, 88 Stat;-1242 as amended (42 U.S.C. 5841). F l= 7. In S 171.5 the definition nonorofit educational-institution is added:to read _as follows: LS171.5 Definitions.- 106
m __ __. _ _ _ _ _. _. h 1. of operating power reactors (109). (d) The FY 1992 Part 171 annual fees for operating power reactors are as follows:- Part 171 Annual Fees by Reactor ~ Category l (Fees in Millions) Base Added Total Estimated Reactor Vendor Number Egg-Charce Egg Collectiong Babcock /Wilcox-7 $2.981 .281 $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 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 1 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 t Test reactor. $55,700 109
'3-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 l 116
l l l 1 I/ Spent Fuel, High Level Waste and N/A j plutonium air packages l Other Casks N/AI/ t 4 i B. Approvals issued of 10 CFR Part 71 quality assurance programs. J l i Users-and Fabricators $62,800 4 Users - $1,500 l Surcharge. $160 t i 1 11. Standardized spent fuel facilities. N/AI/ I N/AI/ 12. Special Projects l i i I/ 13. T. Spent fuel stcrage cask certif'cate N/A i j q ( - of Compliance. I j- .B. . General licenses for storage'of $118,000 i j spent fuel under 10 CFR-72.210. 9 Surcharge. $160 14. Byproduct, source, or special nuclear . N/A1/ l material licenses and other. approvals i 128 i ~ ......,+,,,6.,,-.,.m, x .,,.. - ~. -,, e,_._.'s.,_.- ...,,,,,,,...,,~.._.,ma_... ,..,J,.L._#___.,,-..,..r. ,..W,s.L'-.__,
I f i on a single license (e.g., human use and irradiator activities), annual fees will be assessed for each category applicable to the license. Licensees paying annual fees under Category 1.A.(1). are not subject to the annual fees of mategory 1.C and 1.D for sealed sources authorized in the license. Il Payment of the prescribed annual fee does not automatically renew the license, certificate, registration or approval for h-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 5 171.13 and will be published in the Federal Register for notice and comment. 1/ A Class I license includes mill licenses issued for-the extraction of uranium from uranium ore. A Class II license includes solution mining licenses (in-situ and heap leach) issued for~the extraction of uranium from uranium ores including research and development licenses. An "other" license includes licenses for extraction of metals, heavy metals, and rare earths. Il Two licenses have been issued by NRC for land disposal of special nuclear material. Once NRC issues-a LLW disposal license for-byproduct and source-material, the Commission will consider -establishing an annual fee for-license / ~ f))i1 Nf g 130 w --w-- .--e5,,-w- -,e-,v v,-.%ne-w+-+,-y-3-rre-e,,e9-,tt --~-e*=~ w-- +4-e--=*
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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 gencric costs of regulating suchf ac/hne tivities 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. 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. El separate annual fees will not be assessed for pacemaker licenses issued to-medical institutions who also hold nuclear medicine licenses under Categories 7B or 7C. IE/ This includes all Certificates of Compliance issued to DOE. III No annual 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. The surcharge consists of the following: 131
a sent a bill for the full amount of the annual fee upon publication of the final rule. Payment is due on the effective s date of the final rule and interest sha44 accrue from the effective date of the final rule. However, interest will be waived if payment is received within 30 days from the effective date of the final rule. (c) For FYs 1992 through 1995, annual fees in the amount of $100,000 or more and described in the Federal Register Notice muJ e pursuant to S 171.13, he paid in quarterly installments of 25 percent. A quattarly installment is dJe on October 1, January 1, April 1 and July 1, of each fiscal year. Annual fees of less than $100,000 M be aid once a year. Dated at Rockville, Maryland this day of 1992. For the Nuclear Regulatory Commission. James M. Taylor, Executive Director for Operations, i l 133 1
,N/lt*.' TAsr Ae). f),y //na fygg keyjrj pp Ade fu/y fg799, hoof /4., fcie tr> cu/ gje faj n A er/e,er/ /de e cwefe. asp; flearA#cl Ond /he//'och/qy W/0/2/d kn /h* AV /99/ he/ Ade tn 6fr frh/ /W/t fcw Me f Y n) ? 6e3. 7N/ w/w m*& he f>gesenf g/ m 4*APPEl@IX A TO THIS FINAL RULE ~ f Ot-./,4,j y~.*p,- ,, e e /,., REGULATORY FLEXIBILITY ANALYSIS FOR THE AMENDMENTS TO 10 CFR PART 170 (LICENSE FEES) AND 10 CFR PART 171 (ANNUAL FEES) I. BACKGROUND The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) establishns 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 sut antial number of small entities, then a regulatory flexibility analysis is regt' red to examine the impacts on small entities and the alternative: to minimize these impacts. l Tc assist in considering these impacts under the Regulatory l Flexibility Act, the NRC adopted size standards for determining which NRC licensees qualify as small entities (50 FR 50241; December 9, 1985). These size standards were clarified November 6, 1991 (56 FR 56672). The NRC size standards are as follows: (1) A small business is a business with annual receipts of $3.5 million or less except private practice physicians for which 134
s the standard is annual receipts of $1 million or less. (2) A small organization is a not-for-profit organization which is independently owned and operated and has annual receipts of $3.5 million or less. (3) Small governmental jurisdictions are governments of cities, counties, towns, townships, villages, school districts, or special districts with a population of less than-50,000. (4) A small educational institution is one that is (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-amount.to be collected-is approximately $492.5 million. l To comply with 01 RA-90, the Commission proposed amendments-to its fee.regulationt in 10 CFR-Parts 170 and-171 on April _12, thh asis of a careful-evaluation of over L 1991--(56 FR 14870).- Oct 400 comments, the Commission issued a final' rule on July 10, 1991 -(56 FR 31472). Consistent with the conference Committee-Report tan ' Onol mha Icip%rbe./ fde meh*/dl'n 't N _ et se na in u.,. u,,s. ne,c-saa~ ww hfes,s rass> */ /be.$1 'Yh*/. W "*
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/UeJA W Ao)y e W o J / h ) e=of /n /Jt-J~y /yJj (/7j,, f)e la m e xitA/nnJisi) /d<- Mf /A/N /ed Po osed /r,o# o, A s//}.2R '/P P2 CS/ f4 /J'O 95], s'A */ SP. O*llEfd W.)'A' h r j L fr> be ers#sre/ kor Fy /,9').). accompanying the Public Lay, the NRC fairly and equitably G 00A/} - 70 allocated its budget costs. This resulted in the assessment of annual fees for all classes of licensees, including those classes s of licensees with a substantial number of small entities. 's ...-w [-])/)' ' i> b/n'I I /# ' / * / II. IMPACT ON SMALL ENTITIES / <t y) y/e, fit ir u 1
- A !,,-
pm,, g.,,,, c/ win?'" j' /&"y / t J o // ff /$$d /? * 'lt* gf a The comments received on the pro FY 1991 fee rule and bsm/ hall entity certifications received in response revisions 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 materials licensees, the NRC estimates that about 25 percent (approximately 2,000 licensees) qualify as small entities. Therefore, in recognition of this substantial number of emall entities, the NRC requested comments from small entities on the proposed FY 1991 rule. Comments were specifically requested on (1) how the proposed regulations would affect each class of licensee 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
4 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 we?'ri materialize at the time the July 10, 1991, final rule was o ff=nn ! promulgated, itwasclearthatthep"nnneedannualfeeswouldbe 4 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 rula 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 impo:t on the ability of these types of businesses'to continue to operatm. Members of Congress, in many of the more than 100 Congressional letters the NRC has received frem th since the July 10, 1991, final rule was published, have expressed concern about the size of the NRC annual fees and their economic impact l 139
~ _.. _ _ _.. _ _ _ _ _ _ _ _ _ _. _ _ _ _ _ _ _ _ _ _. _ _. _ _ I j on small entities. Some of these letters have suggested that the l t Commission should act to further reduce the economic impact on j those licensees who conduct limited operations. The Small Business Administration (SBA), while commending the Commission for complying with and using the RFA in the final rulemaking, i suggested that the Commission should act to furth a 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 L additional alternatives, in accordance with the RFA, because of the continuing significant impact of t 1 fee nan N substantialnumberofsmallent) es. s /7 ) 2 f Y A)/ rOMnPM b f III. ALTERNATIVES /7f 't Commenters on the proposed rule published April.12, 1991, l .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 categorizedLas,follows: Base fees on some measure of-the amount of-i radioactivity possessed by the licensee'(e.g.,-number of: sources). . Base. fees on the' frequency-of-use of the licensed-140 -. _, _. _. -, _. _.. _ _ _.. -. -.. ~. _...,.., _
l l t I Commentors have suggested that the NRC could reduce the 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 radioactive material possessed), or the frequency of use of the radioactive material. In adopting the July 10, 1991, final rule, 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 III of this analysis, the Commission concludes that basing the fee on the number of sources, frequency of use, or amount of radioactive material possessed does not necessarily reduce the impact of the fees on small entities, which is the goal of the RFA. The Commission continues to believe that uniformly allocating the generic and other regulatory costs to the specific license to determine the amount of the annual fee is a fair and equitable way to recover its costs and that establishing reduced annual fees based on gross receipts (size) is the most appropriate approach to-minimize the impact on small entities. I consistent with this approach, the Commission will continue the L $1,800 maximum annual fee for small entities. In addition, the l --[cr})eate a lower -tier annual fee for small j c/ a2 i Commission e. _ r _ _ _ __ -entities with relatively small gross annual receipts or with a l~'~ ( Q. PAi /3d Mi 4f &/ /7 /M2) l relatively small populatiod o, //e n To implenent this pre;;;al, relatively small annual receipts ust fir;t '- defined. Based on data from an NRC survey of W ".4 e 146 l
3 materials licensees and the Department of commerce industry census, the following data shows the distribution of businesses with annual gross receipts of less than $3.5 million. Annual Gross Departmen* Recolots NRC Survey of Commerce Less than $250K 45% 55% $250 - $499K 14% 22% $500 - $749K 8% G% $750 - $999K 9% 6% $1,000 - $3,500K 244 11% As shown, 45 to 55 parcent (or about 50%) of small businesses with gross _ annual re eipts 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 we.uld be impacted the most would pay the lower fee. w as A similar approach F2e Lee.[. used to define a relatively small governmental jurisdiction. Using 1990 data from the National Associstion 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 t;ould be eligible for reduced fees (See the data presented below). This would also ensure that at least 50 percent of other governmental jurisdictions (cities, towns, villages, school districts, etc.) 147 t
1 could also receive the benefits because these other jurisdictions are typically smaller than counties. Percent EQoulation C Tplal 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 cl 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 businesses and small non-profit organizations, or less than 20,000 population for small governmental pr/othbsb'Al jurisdictions). In determining *ha amn""t the annual fee for lower tier small entities, the Commission ha'd e'!ee that the - f el redu: d f;; ch:uld retain!a balance between the objectives of the RFA and OBRA. This balance can be measured by (1) the amount of cocts attributable to small entities that is transferred to larger entities (the small entity subsidy); (2) the total annual fee small entities pay, relative to this subsidy; and (3) how much the annual fee is for a-lower tier small entity. Nuclear WPAT gauge users used to measure the reduction in fees because they represent about 40 percent of the materials licensees and mcst likely would include a larger percentage of lower tier small entities than would ather classes of materials licensees. u. Before presenting alternative fees, the NRC notes that the number of licensees filing small entity certifications for the FY 148
9 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 $5 million in the small entity subsidy. On the basis of the response to the FY 1991 billings, the NRC's estimate now is that there are about 2,000 small entities. The following data shows four different lower tier small entity fees, their impact on the licensees, and their impact on the balance between OBRA and RFA. Estimated Alternative FY 1992 Estimated Lower Tier Reduction Small FY 1992 Annual Small in Fee Entity Fees Paid Entity for Gauge Subsidy by Small Annual Fee Users (%) ($ M) Entities ( $ M_)_ S1,200 30% $5.0 04.5 900 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 qualifyir.g nuclear gauge licensees. However, the ed Commission 1/i 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 Q is ._uld is equivalent to the amount estimated in the July 10, 1991, final rule, increaseu by 20 percent to account for the FY 1992 budget increase and the reduced number of materials licensees 149
i a# 1 e-f resulting from license terminations after the FY 1991 rule became effective. Although the other reduced fees would result in lower j subsidies, the Commission believes that the amount of.the associated annual fees, when added to the license and inspection fees, Nould still be considerable for small businesses and I organizations with gross receipts that are less than $250,000 or for governmental entities in jurisdictions with a population of l less than 20,000. I i i V.
SUMMARY
) l l Comments received on the proposed rule dated April 12, 1991, j and implementation of the final rule on July 30, 1991, provide evidence that the annual fee would significan".ly 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 p and/Jed'sa)/?/ R, p the basis of its regulatory flexibility' analysis 4 the NRC f,,/pgG concludes that a maximum annual fee of $1,800 for small entit,les and a lower tier small' entity annual fee of $400 for small r businesses and'non-profit organizations with gross annual receipts of less than $250,000, and small governmental entities with a population.of-less than 20,000, will' reduce the impact on t- = small entities. At the.same time, these reduced annual fees are consistent ~with the' objectives of.OBRA-90. Thus,.the revised fees-for small. entities maintain a balance ~between the objectives .of OBRA-90and the RFA. y_ ,7/je y,e( /w v.c. / & as~/4k 'A / ,,,y,,,,,j,,,,, f.,,g/c,,p - fra ~). / yyj. f.a xs/.- /sr % r_ Au/c _ cr&i& fjg ' );"y jy 92 k ef. Ib"$#7&nt /) * ' On e l/. enc' t'*prie/s 1.iM *'t!b O'N' /n $ h no/ pin ses,. ;, ve ///. & >> 0 /=v i-. _.... _ _..,.. _.. ~.. -. -,. _.,, - -}}