ML20148M502

Forwards Final Rule Annotated W/Suggested Changes.Concurs W/Changes in Final Rule

ML20148M502
Person / Time
Issue date:	05/02/1997
From:	Turdici J NRC
To:	Funches J NRC
Shared Package
ML20148M448	List: ML20148M462 ML20148M483 ML20148M502 ML20148M547 ML20148M738 ML20148M814 ML20148M837 ML20148M858 ML20148M874 ML20148M894
References
FRN-62FR29194, RULE-PR-170, RULE-PR-171 AF55-2-012, AF55-2-12, NUDOCS 9706250002
Download: ML20148M502 (42)

Text

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p UNITED STATES [(~gp g j

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• NUCLEAR REGULATORY COMMISSION  !

2 WASHINGTON, D.C. 2066dH201 '

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4 May 2, 1997 W 6-l l

NOTE TO: Jesse L. Funches

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FROM: James Turdici I

SUBJECT:

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FINAL NOTICE OF RULEMAKING - 10 CFR PARTS 170 AND 171 i 100 PERCENT FEE RECOVERY FOR FY 1997 l l

l Attached is a copy of the subject final rule annotated with our suggested changes.

With these changes, I concur in the final rule.

Attachment:

Annotated Final Rule l~;

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NUCLEAR REGULATORY COMMISSION 10 CFR Parts 170 and 171 RIN: 3150-AF 55 1

Revision.of Fee Schedules; 100% Fee Recovery, FY 1997 i AGENCY: Nuclear Regulatory Commission.

't p ACTION: Final' rule, f

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SUMMARY

The Nuclear Regulatory Commission (NRC) is amending the j licensing, inspection, and annual fees charged to its applicants and licensees. The amendments are necessary to implement the Omnibus Budget Reconciliation Act of 1990 (OBRA-90), which mandates that the NRC recover approximately 100 percent of its 1'

budget authority in Fiscal Year (FY) 1997 less amounts appropriated from the Nuclear Waste Fund (NWF) . The FY 1997 NRC i

Appropriation also excluded from the, fee base the cost of NRC

review relating to the commercial vitrification of waste stored at the Department of Energy Hanford, Washington, site. The I amount to be recovered for FY 1997 is approximately $462.3 i

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assessed for FY 1996 were adopted by the NRC. These changes were s highlighted in the final rule (61 FR 16203; April 12, 1996) and bear on the approach for establishing annual fees set forth in i this final rule for FY 1997. l 4

1 On February 27, 1997 (62 FR 8885), the NRC published a ,

proposed rule to establish the licensing, inspection, and annual '

l j fees necessary for the NRC to recover approximately 100 percent of its budget authority for FY 1997, less the appropriation received from the Nuclear Waste Fund and the General Fund. These changes were highlighted in the proposed rule (62 FR 8885; February 27, 1997) and have been adopted in this final rule for l FY 1997. The major changes are summarized as follows:

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1. -Stabiln CFR171annualf@ gdjust451gJllb -" '

<bm=> upward by about 8 percent. This change is consistent with the NRC's intention stated in the FY 1995 final rule, that beginning in FY 1996, annual fees would be stabilized by adjusting prior year annual fees by the percent change (plus or minus) in the NRC budget authority taking into consideration the estimated collections from 10 CFR Part 170 fees and the number of licensees paying fees;

2. Establish and assess a new annual fee of $2,600,000 (fee Category 1.E.) for each Certificate of Compliance issued to the United States Enrichment Corporation, i

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3. Revise the two professional hourly rates in S170.20 l

q which are used to determine the 10 CFR Part 170 fees assessed by the NRC. The rate for FY 1997 for the reactor program is $131 per hour and the rate for the materials program is $125 per hour.

l Adjust the current licensing and inspection fees in 4.

SS170.21 and 170.31 for applicants and licensees to reflect both the changes in the revised hourly rates '

and the results of the review required by the Chief 1 i

Financial Officers Act.

5. Implement a procedural change whereby fees will be assessed under 55170.21 and 170.31 to verify quality l assurance, safeguards contingency and emergency plan changes submitted by licensees.

l II. Responses to Comments The NRC received nine comments on the proposed rule.

Although the comment period ended on March 31, 1997, the NRC has reviewed and evaluated all comments received, including those d # '

that were ' " ^

Several of the comments were similar in nature. For evaluation purposes, these comments have been grouped, as 5

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i l appropriate, and addressed as single issues in this final rule. ]

The comments are as follows:

I l A. Comments recardino the maior chances crocosed in the FY 1997 fee rule.  !

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1. Streamline and stabilize annual fees.  !

'I Comment. Commenters continue to support the positive steps j taken by the NRC to equitably distribute and to reduce the burden of user fees on' licensees. Two commenters representing nuclear I power plants argue that the annual fees being charged to power a/

ocu t i plant licensees, and particularly the @([ increase in those fees  !

! proposed for 1997, are inconsistent with statutory requirements.

The commenters argue in particular that section 2214 (b) of Title 42 of the U.S. Code requires, without exception, that every recipient of a definite service from the NRC should pay 10 CFR Part 170 fees. The statute says that "any person who receives a service or thing of value from the Commission shall [ emphasis added) pay fees to cover the Commission's costs in providing any such service or thing of value." 42 U.S.C. 2214 (b) . The commenters believe that the word "shall" means that the agency has no authority not to charge 10 CFR Part 170 fees to parties who receive benefits from the agency. The result, they argue, of the agency's not charging all beneficiaries Ks a fee system that //

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charges nuclear power plants for services provided to others, and l

l y thus fails to meet the statutory requirement that, "[t] o the maximum extent practicable, the charges shall have a reasonable relationship to the cost of providing regulatory services" to I licensees. 4 2 U . S . C . 2 2'14 (c) ( 3 ) . As evidence that this statutory requirement has been violated, the commenters argue thatthe8k$nreaseinannualfeesinFY1997isduelargelyto#

1 a projected, and unexplained, reduction in 10 CFR Part 170 fees charged to persons and entities other than power reactor licensees and is thus unrelated to the costs of regulating nuclear power reactors. The commenters believe that the agency should replace the proposed rule with one that charges everyone who receives a service from the agency the cost of providing that service.

Resoonse. The NRC readily acknowledges the commenters' concerns for fairness and equity. As the Commissi'on has explained many times previously, to recover approximately 100 -

percentofitsbudgetauthorityinfeesjaportionoftheannual ,-  ;

fee paid by power reactors recovers the costs of services rendered by the NRC which are not attributable to the costs of regulating nuclear power plant (cite) h f However, the NRC believes the current fee system is as fair and equitable as the current statutory structure underlying the agency's fee system will permit. For example, the agency is i

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. l barred by law from charging all but two federal agencies 10 CFR l Part 170 fees; not all the work which the NRC does for other agencies and governments can be recovered through reimbursable agreements (see 60 Fed. Reg. 32218, 32222 (June 20, 1995)), and yet that work is necessary for public health and safety and U.S.

national interests, u der the Regulatory Flexibility Act, the agency is obliged to consider carefully the impact of its fee rules on small entities and to seek less onerous alternatives.

Such exemptions from fees as the NRC has granted are of long-standing and well-founded in law, and have been granted only h  ?

afterQ11andpublicconsideratioQ)oftherelevantpolicy ,

questions. Section 2214 (b) of Title 42 of the U.S. Code may say that beneficiaries of the agency's work "shalla pay fees to cover its costs, but, as a matter of jurisprudence, laws that use the word "shall" do nonetheless admit of exceptions; were this not so, the exemption provisions in the agency's safety rules, for example 10 CFR 50.12, would be invalid, since they provide for t

exemptions from rules that use the word "shal(" . More U  ;

particularly, as the agency said in response to similar arguments advanced by comments on the FY 1991 rule, the agency is not required to assess fees to every beneficiary of its work. For example, OMB Circular No. A-25, which contains government-wide l policy guidance for the IOAA, states, in item 5. (b) . (3) . , that an agency can exempt fees fcr recipients engaged in nonprofit 1

activity designed for the public health, safety, and welfare.

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, Moreover, the statute underlying the agency's annual fees states that "any licensee of the Commission may (emphasis added) be required to pay ... an annual charge." (42 U.S.C. 2214 (c) (1) . )

See 56 Fed. Reg. 31472, 31474 (July 10, 1991).

p The 8 increase in annual fees for power reactors, about which the commenters are understandably concerned, was fully j explained in the statement of considerations accompanying the i l

proposed rule. See Part II, Section B and Table 1 in 62 Fed. I Reg. 8885,8887 (February 27, 1997). As the discussion there l

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shows, the increase is nonetheless neither arbitra d capricious. To recap briefly, the increase is the result of several factors: a substantial reduction in projected 10 CFR Part 170 fees, largely because ductions in resources devoted to I'

i reviews of applications for standard plant reviews and reactor operating licenses; a reduction in the number of licensees paying tm M annual fees, largelytheresultofonereactorkhavingceased

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-}rwpdet j operations ernanntl) and the mignment to Massachusetts lu ed'MD I

lcter this-year-of regulatory responsibility for some 425<ha brM b hr FYi99 9 \

licensefs;4severalmi$liondollarslessinexcesscollectionsgad WN '

ft0M y,3 / ,1,/g femds FY 1995 that unre ava+1:ble to reduce FY 1996 annual fees; fp d(? Ncr N asmallincreaseinthegam+ount}y'"hissmallentityfeeface reduc}es;ciclue andj ma greater allowance for unpaid bills, to help assure that the agency will meet its obligation to collect 100 percent of its budget.

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, While the agency believes that its current fee structure is l

.( fully justified by law and policy, the agency remains committed to working with Congress to reduce the fee burdens that power plant licensees bear because they pay for regulatory activities that do not directly benefit them. Three years ago, the agency submitted a report to Congress that recommended enactment of legislation that would reduce the amount to be recovered from fees from 100 percent of the NRC budget to about 90 percent, thus eliminating'the surcharge the power plant licensees, and some others, bear because some parties receive benefits for which they do not pay. In the near future, the NRC will be updating that report and reassessing the need for legislation.  !

This final rule adopts the methodology to streamline and k

stabilize FY 1997 annual fees by adjusting these fees by the percentage change (Jl us or minus) in NRC's total budget c,d' C t4% Gbas authorityg The FY 1996 annual fees have been used as base annual fees and these annual fees have been adjusted upward for FY 1997 based on the percentage change in the NRC's budget authority, taking into consideration the total number of licensees paying fees and estimated collections from 10 CFR Part 170 licensing and inspection fees. Therefore for FY 19 , all annual fees have p## been adjusted about 8 percent above FY 1996 levels, fW AM6 2. Revise the two orofessional rates in 10 CFR 170.20 based on p

the FY 1997 budoet and adiust the 10 CFR 170.21 and 170.31 licensino (acolication and amendment) " flat" fees for licenses to 10

Public Document Room. The specific de. tail: regarding the budget for FY 1997 are documented in the NRC's publication " Budget Estimates, Fiscal Years 1997" (NUREG-1100, Volume 12), which is available to the public. Copies of NUREG-1100, Volume 12,jmay be purchased from the Superintendent of Documents, U.S. Government fld SP Printing Office, P.O. Box 37082, Washington, DC 20402-9328.

Copies are also available from the National Technical Information Service, 5285 Port Royal Road, Springfield, VA 22161. A copy is also available for inspection and copying for a fee in the NRC Public Document Room, 2120 L Street, NW. (Lower Level), l Washington, DC 20555-0001. The NRC will continue its current practice of providing available backup data to support 10 CFR Part 170 licensing and inspection billings upon request by the licensee or applicant.

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b. Comment. One commente; indicated that although they appreciate NRC's efforts to tabilize fees based on percentage changes in NRC's annual budget they have concerns about the lack l of a reasonable relationship be ween the cost to uranium recovery

• i licensees of NRC's regulatory pro ram and the benefit derived l

from such services. The comme ssert that the Commission

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cannot impose fees under the I unless there is a rational relationship between the fe. and the regulatory services provided. The(h[mmenters)citingCentral&S. Motor Freicht Tariff Ass'n v. United States, 777 F.2d 722, 729 (D.C. Cir.

1985), note that in applying this IOAA requirement, the fees 13

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4 i assessed must be reasonably related to, and may not exceed the value of the service to the recipient whatever the agency's cost may be. The commenter then suggests that the NRC fee system may violace this principle because the proposed hourly rate of $125 for services provided by agency professionals is unduly high.

The(fommentefTgoesontosaythattheproblemofthelackof reasonable relationship between annual fees and services rendered is exacerbated as more states become Agreement States, e.g.,

Massachusetts which became an Agreement State in FY 1997, leaving 6

fewer NRC licensees to bear an even grpter share of the burden.

The(commente2) states that the current system, in effect, gives preferential treatment to licensees in Agreement States. The c%in~en't3 also indicated that as the uranium recovery industry continues to shrink in size, the decreasing number of licensees I,

will ultimately be charged increasing annual fees thereby forcing more financial hardships on an already depressed industry.

Resoonse. The Commission believes that its IOAA fee schedule is fully supported by applicable legal precedent and does not

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I adopt (commenter's suggest1 D a In upholding the Commission's IOAA 6-31 ;

fee schedule, the United States Court of Appeals for the Fifth 57 Circuit held that the NRC may recover the full cost of providing .

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a service to an identifiable recipient. (3 Emphasis in original),'

Mississioni Power & Licht v. NRC, 601 F.2d at 230. This is consistent with the earlier teaching of National Cable Television Ass'n Inc. v. FCC, 554 F.2d 1094, 1106 (D.C. 1976) relied upon by 14

the court in Central & S Motor Freicht Tariff Ass'n, suora.

There the court held that fees should be a reasonable approximation of the attributable costs which the Commission identifies as being expended to benefit the recipient. The Court sugge.sted that a fee might be questionable if the fee unreasonably exceeds the value of the specific services for which it is charged. Here the services provided by the NRC are required for licensees to maintain their licenses and the benefits derived therefrom. The basis for the revised hourly rates is fully discussed in NRC's response to comment A.2.a.

4 which relate 4to the hourly rates being assessed by NRC under 10 CFR Part 170. The has provided virtually no evidence l that could cause the NRC to conclude that its fees unreasonably exceed the value of the services rendered.

I In FY 1995, the NRC changed the methodology for allocating those budgeted costs (about 10 percent of the NRC budget authority) that cause fairness and equity concerns because the legislation requested by the NRC had not been passed by the Congress (60 FR 32218; June 20, 1995). These costs, which include the cost of the Agreement State oversight and regulatory support to the Agreement States, are now treated in a manner similar to overhead. These costs are distributed based on the I i

percentage of the budget directly attributable to a class of licensees. Commenters at that time supported this method of allocation as being more equitable, pending legislative relief by

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Congress to remedy this inequitable situation. If additional y states become Agreement States and the NRC decides to rebaseline the fees based on substantive changes to the budget, then any

> 1 increased cost for Agreerent State oversight and regulatory j suppor*. to the Agreement States would be identified, treated l similar to overhead, and distributed based on the percentage of the budget directly attributable to a class of licensees.

The !rdC also revised its methodologies in the FY 1995 final rule for determining annual fees for fuel facility and uranium recovery licensees. The revised methodologies resulted in annual fees that more accurately reflect the costs of providing regulatory services to the subclasses of fuel facility and uranium recovery licensees. sh: r-csssed:methodcaogies =resulte&

( ie-mmu 1-feesa: hat-more--occuratelymf4ectetha-costs cf .

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-provi41sg-regulater-y-services-to_the-subclasses:of-fuelmfaci-lity _

_and cranium-recovery. licensees. The revised methodologies were fully explained in Section IV, Section-by-section Analysis, of the final FY 1995 rule (60 FR 32218; June 20, 1995).

In response to comments relative to 6nnual fee % rease) as M a result of the decrease in the number of licensees, the changes adopted in the FY 1995 final rule to stabilize fees should minimize large fee changes as a result of decreases in licensees.

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3. Annual fees for Certificates of Comoliance issued to the

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) , United States Enrichment Corporation.

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a. Comment. The United States Enrichment Corporation (USEC)

cc .edthattheannualfeefof$2,600,000 which have been j prvposed for the first time for each.of the two enrichment facilities are not fair and equitable when compared to -Athose

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. imposed on similar facilities regulated by the NRC.J yhe

. rationale for this as expressed in the NRC's proposed. rule is an l

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unsupported assertion that the relative weighted safety and l I safeguards factors for USEC's facilities are'similar to a high I

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enriched uranium facility. USEC believes this rationale is

, incorrect, unsupported by the facts, and contradictory to the a

4 NRC's own licensing actions. USEC indicates that the NRC has, in I

fact certified USEC's gaseous diffusion plants (GDPs) as low enriched uranium facilities and as part of that licensing action,

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the NRC has approved safeguards measures appropriate for low enriched uranium facilities and has not imposed the safeguards x

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measures required at high enriched facilities possessing strategic special nuclear material. USEC indicates that in j accordance with the joint statement of understanding between the NRC and the Department of Energy (DOE), DOE is solely responsible for any strategic special nuclear material which may be located j at the Portsmouth, OH, GDP and that the presence of any such high

{ enriched uranium at the Portsmouth GDP is not relevant to the NRC's fee-setting process. USEC states that the NRC methodology for determining annual fees for major fuel facilities, presented 17

in the June 20, 199E *tderal Register, clearly states that the issued license io the source for determining authorized nuclear material and use/ associated activity and is the determining factor in placing a licensee into one of the five fuel facility license fee categories created in the NRC's methodology. USEC/Actuf5 -4[ !

that the GDPs are clearly in the low enriched fuel category on l l

the basis of the issued licenses (certificates) and not in the "O

high enriched-fuel category. USEC states that the NRC's proposal w/'

to put the GDPs into the same fee category as high enriched fuel facilities has not been justified by the cited NRC methodology and appears to be arbitrary and that the NRC has provided no basis for its conclusion that the relative weighted safety and safeguards factors for the GDPs are similar to a high enriched uranium facility. USEC states that the annual fee for the GDPs

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should be the same as that set for other low enriched facilities,

$1,276,000 annually.

Response: NRC does not dispute that the GDPs have been certified as low enriched uranium facilities with corresponding safeguards measures for category III facilities. NRC recognizes that DOE maintains sole regulatory responsibility for strategic special nuclear material that may be located at the Portsmouth GDP. The NRC methodology for determining annual fees fog majpr je dFr4 Ke'g isted fuel facilities, published in the June 20, 1995,gf0FR32218, 32234,)doesstatethattheissuedlicenseisthesourcefor determining authorized nuclear material and use/ associated i

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Resconse. With respect to USEC's request that one of its l q certificates be exempt from annual fees, the D.C. Circuit Court

, of Appeals decision of March 16, 1993, directed the NRC to grant )

! l l an exemption from annual fees to Combustion Engineering (CE) for one of its two low enriched uranium facilities. The NRC had previously denied the exemption request from CE. The Court concluded that "the argument that the " equal fee per license" rule is " unfair and inequitable" is persuasive only on the ground that the rule produced troubling results when applied to Combustion's circumstances." The Court saw no reason for requiring the NRC to attend to that rather rare situation in the  !

rule itself. Thus, consistent with the Court decision and 10 CFR crb ,' b 7 Part 171, if USEC feels that based on the circumstances en their-particular situation it can make a strong case to the NRC for an h exemption from the FY 1997 annual fees then they should do so.

The NRC will consider such requests for exemption under the g( provisions of 10 CFR 171.11(d). In accordance with 10 CFR Part

]N y 171.11 (b) , such requests for exemption must be filed within 90 N

hb days from the effective date of this final rule. The filing of

,, an exemption request does not extend the date on which the bill q# is payable. 2nly the --i lacly paic._w-in-Lull encurer avoidance-of~  ;

hreeland = penalty-charges . If a partial or full exemption is 1

granted, any overpayment will be refunded. '

B. Other Comments i

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enrichment facilities, which included the application fee was moved directly to the materials schedule in S170.31.

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Licensees who pay the $125,000 fee upon filing an application are given 1

credit for the fee toward the full cost of processing the application. Licensees do not pay the full cost of processing plus the application fee of $125,000.A other major fuel facilities covered by S170.31 do not pay an application fee for a 1

new license application, the NRC agrees with the commenter and has eliminated the $125,000 application from S170.31, Category 1.E.

2. Fees for amendments to medical licenses.

Comment. One commenter, while indicating support for fees i

to recover costs of NRC regulatory activities, questioned why such a high fee ($460) would be required to amend a medical license to add another physician to the license.

Resconse. In developing the revised fee schedule, the NRC was obligated under Title V of the Independent Offices Appropriation Act of 1952 to examine the costs of processing license amendments not only for medical licenses but also forAits more than 6,000 materials licenses. The amendment fee of $460 was developed based on the " average-post" method (flat fees). As the license fee rule is now structured, the NRC estimated that, on the average, it would expend approximately 3.7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br /> of 23

, a j

pro essional effort for the processing of 94m amendment request W /

j t0-q _t- .hr medical license. To determine the amount of the fee, the f'

) average amendment time (3.7 hours8.101852e-5 days <br />0.00194 hours <br />1.157407e-5 weeks <br />2.6635e-6 months <br />) was then multiplied by the professional hourly rate ($125/ hour) to arrive at the amendment

, fee of $460 for the medical license.

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$ l j- 3. Fee leaislation.

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] Comment. Several commenters noted that the NRC had 1

! completed its report on fee policy as required by the Energy Policy Act of 1992 and that the NRC had send a report to Congress with legislative recommendations. The commenters commended NRC's j efforts in this regard and stated that they continue to believe that 100 percent fee recovery for NRC, as mandated by OBRA-90, is i (

! inequitable and unfair to licensees because licensees are paying

. for certain costs that are not directly related to and do not 1 benefit them. The commenters acknowledged that without i

legislative change to OBRA-90, the central problems with NRC's fees cannot be completely resolved. Commenters strongly i

j supported more efforts to define a more equitable fee base and recommended that the NRC continue to work with Congress and the

, . Administration and actively seek the necessary legislative changes. In this regard, commenters stated that it is time for NRC to actively purnue a legislative agenda with Congress by drafting specific language to modify OBRA-90 or the Atomic Energy Act.

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III. Final Action i

l The NRC is amending its licensing, inspection, and annual-fees to recover approximately 100 percent of its FY 1997 budget authority, including the. budget authority for its Office of the Inspector General, less the appropriations received from the NWF

and the General Fund. For FY 1997, the NRC's budget' authority.is t

$476.8 million, of which $11.0 million has been appropriated from the NWF. In addition, $3.5 million has been appropriated from the General Fund for activities related to commercial vitrification of waste stored at the Department of Energy I

$ Hanford, Washington, site. The FY 1997 appropriation statute

. . states that the $3.5 million appropriated for regulatory reviews and other activities pertaining to waste stored at the Hanford, I,

. Washington, site shall be excluded from license fee revenues j- notwithstanding 42 U.S.C. 2214. Therefore, NRC is required to

collect approximately $462.3 million in FY 1997 through 10 CFR Part 170 licensing and inspection fees and 10 CFR Part 171 annual fees.

i The total amount to be recovered for FY 1997, and therefore

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the total fees, 51s the same as the amount estimated for recovery for FY 1996. However, the distribution of the total amount to be collected between the two types of fees is different. The NRC estimates that approximately $96 million will be recovered in FY

1997 from fees assessed nder 10 CFR Part 170 and other receipts l 1 \

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compared to $120.5 million in FY 1996. The remaining $366.3 _

million in FY 1997 will be recovered through the 10 CFR Part 171 16$

• annual fees. Because thej 10 CFR Part 170 fees and other 1 dsts-offsetting receipts for FY 1997 is below the estimate ifor FY  ;

l 1996, annual fees must increase. The lower estimate for 10 CFR Part 170 fees plus other changes cause an 8.2 percent increase in FY 1997 annual fees compared to FY 1996. These changes are more fully explained in Section B. The following examples illustrate

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the changes in annual fees.

FY 1996 FY 1997 Class of Licensees Annual Fee Annual Fee Power Reactors $2,746,000 $2,972,000 l Nonpower Reactors 52,800 57,200 High Enriched Uranium Fuel 2,403,000 2,600,000  :

! Facility  !

Low Enriched Uranium Fuel 1,179,000 1,276,000 Facility UF, Conversion Facility 597,800 647,000 Uranium Mills 57,000 61,600 Tvoical Materials Licenses Radiographers 13,000 14,000 Well Loggers 7,500 8,200 Gauge Users 1,600 1,700 Broad Scope Medical 21,700 23,500 Because the final FY 1997 fee rule will be a " major" final action as defined by the Small Business Regulatory Enforcement Fairness Act of 1996, the NRC's fees for FY 1997 will become 28

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[k effective 60 days after publication of the final rule in the Federal Regiater. The NRC will send a bill for the amount of the  !

annual fee upon publication of the FY 1997 final rule to reactors and major fuel cycle facilities. For these licensees, payment will be due on the effective date of the FY 1997 rule. Those materials licensees whose license anniversary date during FY 1997 )

falls before the effective date of the final FY 1997 final rule will be billed during the anniversary month of the license and continue to pay annual fees at the FY 1996' rate in FY 1997.

Those materials licensees whose license anniversary date falls on or after the effective date of the FY 1997 final rule will be billed at the FY 1997 revised rates during the anniversary month of the license and payment will be due on the date of the invoice.

l A. Amendments to 10 CFR Part 170: Fees for Facilities, Materials. Imoort and Exoort Licenses, and Other Reculatorv

. Services.

J Cb Three amendments have een made to 10 CFR Part 170 and one change in practice under Part 170. These amendments do not change the underlying basis for the regulation -- that ' fees be assessed to applicants, persons, and licensees for specific identifiable services rendered. The amendments also comply with the guidance in the Conference Committee Report on OBRA-90 that fees assessed under the Independent Offices Appropriation Act (IOAA) recover the full cost to the NRC of identifiable regulatory services each applicant or licensee receives.

First, the NRC is amending 5170.11 of the Commission's fee regulations to add an exemption provision for those amendments to l_ ma'cerials portable gauge licenses referencing NUREG 1556, Volume l 1, that will change only the name of the Radiation Safety Officer (RSO). This change is consistent with the proposed regulatory approach outlined in draft NUREG-1556, Volume 1, entitled k

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" Consolidated Guidance About Materials Licenses, Program-Specific i

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(

Guidance About Portable Gauge' Licenses" issued October 3, 1996, l for public comment. No amendment fees will be assessed for the ,

i amendments to portable gauge licenses because the regulatory program outlined in the final NUREG-1556, Volume 1, includes commitments from the licensee concerning RSO qualifications and if those commitments are included in the amendment application, then a technical re et equired. NUREG 1556, Volume 1, CV was finalized 7.

Second, the two professional hourly rates established in FY t 1996 in S170.20 are revised based on the FY 1997 budget. These rates are based on the FY 1997 direct FTEs and that portion of the FY 1997 budget that either does not constitute direct program ,

support (contractual services costs) or is not recovered through the appropriation from the NWF or the General Fund. These rates )

are used to determine the Part 170 fees. The NRC has established )

a rate of $131 per hour ($233,055 per direct FTE) for the reactor

( program. This rate is applicable to all activities whose fees are based on full cost under S170.21 of the fee regulations. A ~

second rate of $125 per hour ($222,517 per direct FTE) is established for the nuclear materials and nuclear waste program.

This rate is applicable to all materials activities whose fees are based on full cost under S170.31 of the fee regulations. In the FY 1996 final fee rule, these rates were $128 and $120 respectively.

1 The two rates are based on cost center concepts adopted in FY 1995 (60 FR 32225; June 20, 1995) and used for NRC budgeting purposes. In implementing cost center concepts, all budgeted resources are assigned to cost centers to the extent they can be distinguished. These costs include all salaries and benefits, contract support, and travel that support each cost center activity.

30

Third, the NRC has adjusted the current Part 170 licensing and inspection fees in S5170.21 and 170.31 for applicants and licensees to reflect both the changes in the revised hourly rat'es j and the results of the review required by the Chief Financial Officers (CFO) Act. To comply with the requirements of the CFO Act, the NRC has evaluated historical professional staff hours used to process a licensing action (new license and amendment) for those materials licensees whose fees are based on the average cost method (flat fees). This review also included new license [j' and amendment applications for import and export licenses. gj ' ph/T j f gft. ha5 4 kU .

f W k aluation of t e historical data d6 .h t-the average 6 '

number of professi nal staff ho rs needed to complete materials licensing actions. increased in some categories and decreased M O O l in others to reflect the costs incurred in completing the licensing actions. Thus, the revised average professional staff hours reflect the changes in the NRC licensing review program that have occurred since FY 1995. The licensing fees are based

{ on the revised average professional staff hours needed to process the licensing actions multiplied by the nuclear materials professional hourly rate for FY 1997 of $125 per hour. The data for the average number of professional staff hours needed to complete licensing actions were last updated in FY 1995 (60 FR 32218; June 20, 1995). For new materials licenses, the licensing fees for FY 1997 are increased in approximately 70 percent of the categories, while the proposed fees for materials amendments will increase in over 60 percent of the categories.

In addition to the above rule changes, theNRCisclarifyingB,LkAp how it would recover the costs of post-implementation reviews of changes licensees make without prior NRC review; for example, changes under 5S50.54, 50.5o and 70 32. Licensees will be billed W p for post-implementation review of these changes under SS170.21 p pM4. <

and 170.31, beginning with the effective date of the FY 1997 Y f pr?

final fee rule. There will be no change in how fees are assessed 4/ 7, 31 g g[ l 4);/5W Y h,b w 49

i .

1 g.

)

7 for any prc-implementation interactions, including any review (<

n (G

(, prior to licensee submissions, between NRC and licensees. As in the past, any pre-implementation interaction wi not 4

bearing. The NRC informed reactor licensees May 1997, , ;

/

j that their submittals under S50.54 (a), (p) and (q) should not ask )

i _for pre-implementation reviews; instead, licensees are required

~ (

to perform their analyses, implement their changes (if the analyses show that the changes do not degrade plans the NRC has already approved), and make their submittals under the relevant

~

subsection of S50.54. The NRC will then verify that the changes are in compliance with S50.54.

J In summary, the NRC has:

(1) Revised the two 10 CFR Part 170 hourly rates; Revised the licensing (application and amendment) fees (2) 4 assessed under 10 CFR Part 170 in order to comply with the CFO Act's requirement that fees be revised to reflect the cost to the agency of providing the service; l (3) Added a provision to the regulations exempting from 10 CFR Part 170 fees certain amendments to materials j portable gauge licenses issued in accordance with l NUREG-1556 Volume 1; and

, hl El%Q-./ YA //Meee y/:cdu & 0 < [e e (.'1}efy JE-(JI) Changed the procedure whereby charges under Part 170

)

will be made for post-implementation quality assurance h2 plan, safeguards contingency plan an emergency plan ,

changes. (ed: e ca oE I B. Amendments to 10 CFR Part 171: Annual Fees for Reactor Operatina Licenses, and Fuel Cvele Licenses and Materials

. Licenses, Includina Holders of Certificates of Comoliance.

32

1

~

l Because the total amount estimated for recovery through fees in FY 1997 is the same as the amount for FY 1996, . establishing new l baseline fees is not warranted for FY 1997. While the total amount to be collected is the same, the distribution between Part 170 and 171 fees _k s, J In FY 1996,

_ l change..

j 26)Pwc edwas estimated W to be collected from 10 CFR Part 170 fees. This decreases to 21)k.(in 1 1

FY 1997. Therefore, to recover 100 percent of the budget, 10 CFR Part 171 annual fees must increase in FY 1997 compared to FY 1996. The NRC is establishing the FY 1997 annual fees for-all licensees at a level of 8.2 percent above the FY 1996 annual fees. The 8.2 percent increase results.primarily from a reduction in the amount of the budget recovered for 10 CFR Part 170 fees, a reduction in other offsetting adjustments, and reduction in the number of licensees paying annual fees. In l addition, the NRC has made adjustments to recognize that all fees billed in a fiscal year are not collected in that year. Table I )

shows the total budget and amounts of fee billed and collected  !

for FY 1996 and FY 1997.

I TABLE I Calculation of the Percentaae Chance to the FY 1996 Annual Fees (Dollars in Millions)

FY96 FY97 Total Budget $473.3 $476.8 Less NWF -11.0 -11.0 Less General Fund (Hanford Tanks) ---

-3.5 Total Fee Base $462.3 $462.3 Less Part 170 Fees 114.5 96.0 Less other receipts 6.0" ----

Part 171 Fee Collections Required $341.8 $366.3 t

Part 171 Billino Adiustmentsf 2

-/T 34

d,

I additional 0.8 percent. For example, the Haddam Neck power

[k reactor ceased operations in December 1996 and the fuel has been permanently removed from the reactor. Therefore, the utility will pay only a partial annual fee in FY if97. In addition, Massachusetts became an Agreement State on March 21, 199}fand approximately 425 NRC licenses were transferred to Massachusetts.

s 9' These licenses will pay only one half of the annual fee for FY A

1997.

Third, an annual fee is established in S171.16 (d) , fee Category 1.E., for each certificate of compliance issued to the United States Enrichment Corporation (USEC) on November 26, 1996, to operate the two gaseous diffusion plants (GDPs) located at Paducah, Kentucky and at Piketon, Ohio. The NRC assumed regulatory jurisdiction over the two plants from the U.S.

Department of Energy (DOE) on March 3, 1997.

Fourth, Footnote 1 of 10 CFR 171.16 (d) is amended to provide t

for a waiver of annual fees for FY 1997 for those materials I licensees, and holders of certificates, registrations, and \

i approvals who either filed for termination of their licenses or approvals or filed for possession only/ storage licenses before October 1, 1996, and permanently ceased licensed activities entirely by September 30, 1996. All other licensees and approval holders who held a license or approval on October 1, 1996, are subject to FY 1997 annual fees. This change is being made in l recognition of the fact that since the final FY 1996 rule was published in April 1996, some licensees have filed requests for  !

termination of their licenses or certificates with the NRC.

Other licensees have either called or written to the NRC since the FY 1996 final rule became effective requesting further clarification and information concerning the annual fees assessed. The NRC is responding'to these requests as quickly as possible. However, the NRC was unable to respond and take action on all such requests before the end of the fiscal year on i

36

i l

l l

r The final amendments to 10 CFR Part 171 do not change the l { _

underlying basis.for 10 CFR Part 171; that'is, charging a class

\-

of licensees for NRC costs attributable to that class of licensees. The final changes are consistent with the NRC's FY 1995 final rule indicating that, for the period FY 1996-1999, the expectation is that~ annual fees would be adjusted by the percentage change (plus or minus) to the NRC's budget authority adjusted for NRC offsetting receipts and the number of licensees paying annual fees.

IV. Section-by-Section Analysis The following analysis of those sections that will be amended by this final rule provides additional explanatory information. All references are to Title 10, Chapter I, U.S. l Code of Federal Regulations.

Part 170

(

Section 170.11 Exemptions. i This section is amended to add a new paragraph indicating that amendments to materials portable gauge licenses issued in I accordance with NUREG 1556, Volume 1, that change only the name of the Radiation Safety Officer (RSO) are exempt from amendment fees. This change is consistent with the recent Business Process k ___

esign TBPR) itiative and NUREG-1556, Volume 1, issued on l M 1

, 1997. No amendment fees will be assessed for the dments issued'in accordance with NUREG 1556, Volume 1, to portable gauge licenses because the regulatory program includes commitments from the licensee concerning RSO qualifications and  !

if those commitments are included in.the amendment application then there is no technical review conducted by the NRC.

. Section 170.20 Average cost per professional staff-hour.

k 38

_ . . . . -_ . _ _ - - . _ . . . . _ _ . _ . . . , _ .. _,_......-m._m_,._.._ __m.___ _ > - _ _

I i.

f Table II i ("

FY 1997 Budget. Authority to be Included in Hourly Rates-  ;

t-(Dollars in millions) l Reactor Materials R Procram Procram Salary and Benefits $155.3 $48.4 Allocated Agency Management & Support 42.5 13.2 Subtotal $197.8 $61.6 General and Administrative Suecort (G&AL Program Travel and Other Support 9.6 2.5 Allocated Agency Management and Support 72.1 22.4' Subtotal' $81.7 $24.9 Less offsetting receipts .1 -----

I Total Budget Included in Hourly Rate $279.4 $86.5 h Program Direct FTEs 1,196.9 388.7 I i

Rate per Direct FTE $233,055 $222,517 i Professional Hourly Rate $131 $125 i

l Dividing the $279.4 million budget for the reactor program by the number of reactor program direct FTEs (1196.9) result.s in i a rate for the reactor program of $233,055 per FTE for FY 1997.

Dividing the $86.5 million budget for the nuclear materials and nuclear waste program by the number of program direct FTEs (388.7) results in a rate!.of $222,517 per FTE for FY 1997. The

'i 5 Direct FTE Hourly Rate for the react 6r program _ _12 be $131 per nour (rounded to the nearest whole dollar). This rate is calculated by dividing the cost per direct FTE ($233,055) by the 40

. . .-~ - . . - -. ..

i -

l

, number of-productive hours in one year (1776 hours0.0206 days <br />0.493 hours <br />0.00294 weeks <br />6.75768e-4 months <br />) as indicated I

( in the revised OMB Circular A-76, " Performance of Commercial Activities." The Direct FTE Hourly Rate for the materials l

$ I program 4:ca{.d be $125 per hour (rounded to the nearest whole l I dollar). This rate is calculated by dividing the cost per direct FTE ($222,517) by the number of productive hours in one year i 1

(1776 hours0.0206 days <br />0.493 hours <br />0.00294 weeks <br />6.75768e-4 months <br />). The FY 1997 rate is slightly higher than the'FY l

1996 rate due in part to the Federal pay raise given to all i Federal employees in January 1996.

Section 170.21 Schedule of Fees for Production and Utilization 1 l

Facilities, Review of Standard Reference Design Approvals, Special Projects, Inspections and Import and Export Licenses. l

)

l

l. l The NRC is revising the licensing and inspection fees in I this section, which are based on full-cost recovery, to reflect FY 1997 budgeted costs and to recover costs incurred by the NRC- l in providing licensing and inspection services to identifiable recipients. .The fees assessed for services provided under the schedule are based on the professional hourly rate, as shown in S170.20, for the reactor program and any direct program support (contractual services) costs expended by the NRC. Any professional hours expended on or after the effective date of the final rule will be assessed at the FY 1997 hourly rate for the reactor program, as shown in S170.20. The fees in S170.21 for the review of import and export licensing, facility Category K,  !

I 41 l

l

.y . - - - - - .-. . . . - - . -- -

A I

g and applicants, the NRC uses historical data to determine the l '

(. average number.of professional hours required to perform a l i

licensing action for each license category. These average hours

.are multiplied by t$he-9sjuiiiaB5e materials program professional '

] hourly rate of $125 per hour for FY 1997. The review indicated j that the NRC needed to modify the average number of hours on which the current licensing flat fees are based in order to l recover the cost of providing licensing services. The average number of hours required for licensing actions was last reviewed i and modified in 1995 (60 FR 32218; June 20, 1995). Thus the .

revised hours used to determine the fees for FY 1997 reflect the l

changes in the licensing program that have occurred since that time. For new licenses, the fees for FY 1997 are increased in approximately 70 percent of the fee categories, while the fees for amendments have increased in over 60 percent of the fee categories.

The " flat" fees in S170.31 for the review of impert and ~ ,

evpert- licensing applications have increased from FY 1996 as a resultoftheincreasednthehourlyrateandtheresultsofthe biennial review. The licensing " flat" fees are applicable to fee categories 1.C and 1.D; 2.B and 2.C; 3.A through 3.P; 4.B through 9.D, 10.B, 15.A through 15.E and 16. Applications filed on or 1

after the effective date of the final rule will be subject to the fees in this final rule.

44

l The amounts of the materials licensing " flat" fees were 1 1

[k rounded off so that the amounts would be de minimis and the resulting flat fee would be convenient to the user. Fees that are greater than $1,000 but are less than $100,000 are rounded to the nearest $100. Fees'that are greater than $100,000 are rounded to the nearest $1,000. Fees under $1,000 are rounded to the nearest $10.

1 For those licensing, inspection, and review fees that are l

based on full-cost recovery (cost for professional staff hours  !

)

plus any contractual services), the materials program hourly rate  ;

p of $125, as shown in S170.20, _gglxia)

,y ly to those professional staff 1

hours expended on or after the effective date of the final rule.

Q s b b m . / y .# 1t

+ ,,lli W 46<7 /E

• Jl6.w w15I-f W $ W* tyft +bsY f In addition to the above rule changes, the NRC is clarifying how it would recover the costs of post-implementation reviews of changes licensees make without prior NRC review; for example, changes under SS50.54, 50.59 and 70.32. Licensees will be billed for post-implementation reviews of these changes under SS170.21 l and 170.31, beginning with the effective date of the FY 1997 i

final fee rule. There will be no change in how fees are assessed l 1

for any pre-implementation interactions including any review prior to licensee submissions, between the NRC and licensees. As in the past, any pre-implementation interaction will not be fee- -

bearing. The NRC informed reactor license s M ay _ , & ,

that their submittals under S50.54 (a) , (p) and (q) should not ask a 3 i

,J 5

45

.) ,

,/

' t,

1 for pre-implementation reviews; instead, licensees are required

, to perform their analyses, implement their changes (if the analyses show that the changes do not degrade plans the NRC has already approved), and make their submittals under the relevant subsection of S50.54. The NRC will then verify that the changes are in compliance with S50.54.

l Part 171 l

Section 171.13 Notice.

The language in this section is revised to indicate that in the unlikely event the NRC is unable to publish a fee rule with

, an effective date within the current fiscal year, then the NRC will continue to assess fees at the same rates as the previous fiscal year. The NRC believes that it will be able to publish an effective fee rule within a current fiscal year as it has done since FY 1991 when 100 percent fee recovery was initiated.

However, the possibility exists that the NRC might be unable to establish fees for a current fiscal year through the notice and comment process. Therefore, as a contingency plan for meeting the requirement of OBRA-90, the NRC is amending S171.13 to indicate that if the NRC is unable to promulgate a final fee rule within a current fiscal year, then fees will continue to be assessed at the same rates as the previous fiscal year. The NRC will continue to work diligently to publish the fee rules at the 46

l l

i f NRC is establishing an annual fee of $2,600,000 for each of tl a l k- two facilities. The NRC methodology for determining annual 4ee.s for major fuel facilities was explained in the FY 1995 final fee rule published in the Federal Register on June 20, 1995 (60 FR I 32234). As indicated in the Federal Register, the methodology can be applied to determine annual fees for new licenses or certificates. The NRC has applied the methodology to the USEC facilities and has concluded that the relative weighted safety and safeguards factors for these facilities is similar to a high enriched uranium facility. Therefore, the NRC is establishing t:he annual fee for each USEC uranium enrichment facility at

$2,600,000, the same.as that for a high enrichment facility (fee category 1. A. (1) (a) ) . Because the certifications are in effect for the last six months of FY 1997, the NRC will assess one-half of the annual fee or $1,300,000 to USEC for each certificate,4cx-t h lusc h a l f c f " Y 1 0 0 3 ,-

l The amount or range of the FY 19'17 annual fees for all materials licensees is summarized as follows:

Materials Licenses Annual Fee Rances Catecorv of Licenge Annual Fees

• Part 70 - High $2,600,000 enriched fuel facility Part 70 - Low $1,276,000 enriched fuel facility l Part 40 - UF, $647,000  ;

l conversion facility )

1 50 a

.. - - _ _ - . .. . - .~ ._ - .

1 Part 40 - Uranium $22,300 to $61,600  !

recovery facilities i Part 30 - Byproduct $490 to $23,5001/

Material Licenses l

Part 71 - Trans- $1,000 to $78,700  !

portion of  !

Radioactive Material Part 72 - Independent $282,000 Storage of Spent Nuclear Fuel 1/ -Excludes the enntal fee for a few military " master" materials licenses of broad-scope issued to Government agencies, which is

$420,000.

Footnote 1 of 10 CFR 171.16 (d) is amended to provide a l waiver'of the annual fees for materials licensees, and holders of certificates, registrations, and approvals, who either filed for termination of their licenses or approvals or filed for I possession only/ storage only licenses before October 1, 1996, and

! permanently ceased licensed activities entirely by September 30, 1996. All other licensees and approval holders who held a license or approval on October 1, 1996, are subject to the FY 1997 annual fees.

Section 171.17 Proration.

The NRC is amending the proration provisions in S171.17 for reactor and materials licenses. Paragraph (a) is amended to reflect the changes in 10 CFR Part 50 relating to the decommissioning of power reactors which became effective August 28, 1996 (61 FR 39278). Reactor annual fees will be prorated based on the requirements of S50.82 (a) (2) that upon docketing of l the certifications for permanent cessation of operations and i

permanent removal of fuel from the reactor vessel or when a final legally effective order to permanently cease operations has come into effect, the 10 CFR Part 50 license no longer authorizes 51 a

._.7._..--.._

?

, operation of the reactor or emplacement or retention of fuel into I the reactor' vessel. Previously the proration of reactor annual

(.

fees was based on the date of issuance of the possession only license (POL).

Paragraph (b) is amended to recognize that materials licenses transferred to a new Agreement State are considered  !

! terminated byLthe NRC for annual fee purposes, on the date that the Agreement with the State becomes effective. The State of l Massachusetts became an Agreement State on March 21, 1997, and l approximately 425 licences were transferred to.the State on the effective date of the Agreement. The NRC will assess the annual fees-for those licenses being transferred to.the State of Massachusetts using the current proration provisions of

$171.17 (b) wherebythe1.icenseswillphonsideredterminatedonthe

{

effective date of the Agreement with Massachusetts.

f' New licenses issued during FY 1997 will receive a prorated I annual fee in accordance with the current proration provision of S171.17. For example, those new materials licenses issued during the period October 1 through March 31 of the FY will be assessed one-half the annual fee in effect on the anniversary date of the license. New materials licenses issued on or after April 1, 1997, will not be assessed an annual fee for FY 1997.

Thereafter, the full annual fee is due and payable each subsequent fiscal year on the anniversary date of'the license.

Beginning June 11, 1996, (the effective date of the FY 1996 final rule), affected materials licensees will be subject to the annual fee in effect on the anniversary date of the license. Affected o licensees who are not sure of the anniversary date of their materials license should check the original issue date of the

• license. .

Section 171.19 Payment.

52

Paragraph (b) is revised to give credit for partial payments made by certain licensees in FY 1997 toward their FY 1997 annual fees. The NRC anticipates that the first, second, and third quarterly payments for FY 1997 will have been made by operating power reactor licensees and some large materials licensees before I the final rule becomes effective. Therefore, the NRC 4rnaxF /4Il/ c

v  !

credit payments received for those quarterly annual fee i assessments toward the total annual fee to be assessed. The NRC will adjust the fourth quarterly bill to recover the full amount of the revised annual fee or to make refunds, as necessary.

Payment of the annual fee is due on the date of the invoice and interest accrues from the invoice date. However, interest will be waived if payment is received within 30 days from the invoice date.

Paragraph (c) is revised to update fiscal year references.

Paragraph (d) is revised to modify the billing schedule for 4

terminated materials licentses and new materials licenses. l Licenses subject to the annual fee that are terminated during the fiscal year but prior to the anniversary month of the license ,

i will be billed upon termination for the fee in effect at the time i 1

of the billing. New licenses subject to the annual fee will be j billed in the month the license is issued or in the next available monthly billing for the fee in effect on the anniversary date of the license. Thereafter, annual fees for new licenses will be assessed in the anniversary month of the j license. I As in FY 1996, the NRC will continue to bill annual fees for most materials licenses on the anniversary date of the license l (licensees whose annual fees are $100,000 or more will continue {

to be assessed quarterly). The annual fee assessed will be the fee in effect'on the license anniversary date. This final rule applies to those materials licenses in the following fee categories: 1.C. and 1.D.; 2. A. (2) through 2.C.; 3.A. through 53

(1) Applications for licenses cove:ing more than one fee category of special nuclear material or source material must be accompanied by the prescribed application fee for the highest fee category #

Application r licenses under Catego , must be ' com nied by t rescribe plication of $125, 0 .

(b) License /anoroval/ review fees. Fees for applications for new licenses and approvals and for preapplication consultations and reviews subject to full cost fees (fee Categories 1A, 1B, IE, 2A, 4A, 5B, 10A, 11, 12, 13A, and 14) are due upon notification by the Commission in accordance with S170.12 (b) , (e), and (f).

(c) Renewal /reaseroval fees. Applications subject to full cost fees (fee Categories 1A, 1B, 1E, 2A, 4A, SB, 10A, 11, 13A, and 14) are due upon notification by the Commission in accordance with S170.12 (d) .

(d) Amendment / Revision Fees.

(1) Applications for amendments to licenses and approvals and revisions to reciprocity initial applications, except those subject to fees assessed at full costs, must be accompanied by the prescribed amendment / revision fee for each license / revision affected. An application for an amendment to a license or approval classified in more than one fee category must be accompanied by the prescribed amendment fee for the category affected by the amendment unless the amendment is applicable to two or more fee categories in which case the amendment fee for the highest fee category would apply, For those licenses and approvals subject to full costs (fee Categories 1A, 1B, 1E, 2A, 4A, SB, 10A, 11, 12, 13A, and 14), amendment fees are due upon notification by the Comm ssion in accordance with S170.12 (c) .

f

~

.g 80 t

l'

'),

4

and device evaluations as shown in Categories 9A through 9D.

I 2/ Full CoFC fees will be determined based on the professional l l

staff time and appropriate contractual support services expended.

For those applications currently on file and for which fees are determined based on the full cost expended for the review, the professional staff hours expended for the review of the l

application up to the effective date of the final rule will be l determined at the professional rates in effect at the time the service was provided. For applications currently on file for l

which review costs have reached an applicable fee ceiling established by the June 20, 1984, and July 2, 1990, rules, but are still pending completion of the review, the cost incurred after any applicable ceiling was reached through January 29, 1989, will not be billed to the applicant. Any professional staff-hours expended above those ceilings on or after January 30, 1989, will be assessed at the applicable rates established by S170.20, as appropriate, except for topical reports whose costs i exceed $50,000. Costs which exceed $50,000 for each topical report, amendment, revision, or supplement to a topical report completed or under review from January 30, 1989, through August 7 8, 1991, will not be billed to the applicant.

hours expended on or after August 9, Any professional 1991, will be assessed at I #~"

i{

the applicable rate established in S170.20. /The minimum to al # ' #"

review cost is twice the hourly rate shown in S170.20. A '7"

~~ y %s-t/$ ^

O i/

tvw/L  %.

Licensees paying fees under Categories 1A, 1B, and 1E are not AAgggg subject to fees under Categories 1C and 1D for sealed sources php/

authorized in the same license except in those instances in which an application deals only with the sealed sources authorized by the license. Applicants for new licenses that cover both byproduct material and special nuclear material in sealed sources for use in gauging devices will pay the appropriate application fee for fee Category 1C only.

e 82

~ - . . . - . _. .

l l

f

7. Section 171.13 is revised to rea'd as follows.

l s171.13 Notice.

The annual fees applicable to an operating reactor and to a materials licensee, including a Government agency licensed by the NRC, subject to this part and calculated in accordance with 5S171.15 and 171.16, will be published as a notice in the FEDERAL l REGISTER as soon as is practicable but no later than the third quarter of FY 1997 and 1998. The annual fees will become due and i payable to the NRC in accordance with S171.19 except as provided l in S171.17. Quarterly payments of the annual fees of $100,000 or more will continue during the fiscal year and be based on the applicable annual fees as shown in SS171.15 and 171.16 of the regulations until a notice concerning the revised amount of the '

fees for the fiscal year is published by the NRC. l If.the NRC is i unable to publish a final fee rule that.becomes effective during I the current fiscal year, thenfeesShI!dbeassessedbasedonthe

( rates in effect for the previous fiscal year. l

8. In S171.15, paragraphs (a), (b), (c) introductory text, (c) (1) , (c) (2) , (e), and (f) are revised to read as follows:

9171.15 Annual Fees: Reactor operatino licenses. l l

l (a) Each person licensed to operate a power, test, or l research reactor shall pay the annual fee for each unit for which the person holds an operating license at any time during the Federal FY in which the fee is due, except for those test and s research reactors exempted in S171.11(a) (1) and (a) (2) .

(b) The FY 1997 uniform annual. fee for each operating power reactor which must be collected by September 30, 1997, is

$2,972,000. This fee has been determined by adjusting the FY 1996 annual fee upward by 8.2 percent. In the FY 1995 final 84 l

l L >

4 I I

(b) All Others: ,_

po h

. General Electric SNM-960 $345. 000- ]

l B. Licenses for receipt and storage of 4

spent-fuel at an independent spent )

fuel storage installation (ISFSI). $282, 000 C. Licenses for possession and use of l special nuclear material in sealed sources contained in devices used in

industrial measuring systems, including- 1 1

x-ray fluorescence analyzers. $1,300

( D. All other special nuclear material l

licenses, except licenses authorizing  ;

a l

special nuclear material in unsealed i

form in combination that would constitute a critical quantity, as defined in S150.11 of this chapter, for which

the licensee shall pay nhe same fees as those for Category 1. A. (2) . $3,000

/

E. Licenses or certificates for the 4

operation of a uranium enrichment facility. $2,600,000 90-

_ - _ . . , .k

t

- Introduction The Small' Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) requires all Federal agencies to prepare a written guide for each " major" final action as defined by the Act. The NRC's fee rule published annually to comply with the Omnibus Budget Reconciliation Act of 1990 (OBRA-90) j which requires the NRC to ,

collect approximately 100 percent of its budget authority each j year through fees p meets the thresholds for being considered

" major" under the SBREFA. Therefore, in compliance with the law, this small entity compliance guide has been prepared for FY 1997.

The purpose of this guide.is to assist small entities in complying with the NRC fee rule.

This guide is designed to aid NRC materials licensees. The information provided in this guide may be used by licensees to determine whether they qualify as a-small entity under NRC regulations and are therefore eligible to pay reduced FY 1997

( annual fees assessed under 10 CFR Part 171. Licensees who meet NRC's size standards for a small entity must complete NRC Form 526 in order to qual'ify for the reduced annual fee. NRC Form 526 will accompany each annual fee invoice mailed to materials licensees. The completed form, along with the appropriate small entity fee and the payment copy of the invoice, should be mailed to the U.S. Nuclear Regulatory Commission, License Fee and Accounts Receivable Branch, P.O. Box 954514, St. Louis, MO 63195-4514.

The NRC, in compliance with the Regulatory Flexibility Act of 1980 (RFA), has established separate annual fees for those materials licensees who meet the NRC's size standards for small antities. These size standards, developed in consultation with the Small Business Administration, were revised by the NRC effective May 11, 1995. The small entity size standards are found in 10 CFR 2.810 of the NRC's regulations. To comply with 2

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I c granted a license during the first six months of the fiscal

( . year and licensees who file for termination or for a possession only license and permanently cease licensed ,

activities'during the first six months of the fiscal year pay only 50 percent of the annual fee for that year. Such {

an invoice states the " Amount Billed Represents 50% I Proration." This means the amount due from a small entity is not the prorated amount shown on the invoice but rather one-half of the maximum annual fee shown on NRC Form 526 for the size standard under which the licensee qualifies resulting inafeeof,44ither$900or$20pRforeachfeecategory billed instead of the full annual fee of $1,800 or $400. '

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4. A new small entity form is required to be filed with the NRC  !

each fiscal year in order to qualify for reduced fees for  !

that fiscal year. Because a licensee's " size," or the size standards, may change from year to year, the invoice reflects the full fee and a new form must be completed and

( returned for the fee to be reduced to the small entity fee.

LICENSEES WILL NOT BE ISSUED A NEW INVOICE FOR THE REDUCED AMOUNT. The completed form, the payment of the appropriate small entity fee, and the " Payment copy " o; the invoice should be mailed to tue U.S. Nuclear Regulatory Commission, I License Fee and Accounts Receivable Branch, P.O. Box 954514, St. Louis, MO 63195-4514.

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5. Questions regarding fee bills may be posed orally or in writing. Please call the license fee staff at 301-415-7554 or write to the U.S. Nuclear Regulatory Commission, '

Washington, DC 20555, Attention: Office of the Chief Financial Officer.

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