ML20207B479

Submits Position That New License Fees Proposed Rule 10CFR171 Should Apply to Any Commercial Nuclear Power Plant to Which NRC Granted License to Operate at Any Power Level from 0-100%.FR 860918 Rules & Regulations on Subj Encl

ML20207B479
Person / Time
Issue date:	08/22/1986
From:	Solander L Office of Nuclear Reactor Regulation
To:	Fonner R NRC
Shared Package
ML19303E617	List: ML20197J319 ML20207B409 ML20207B422 ML20207B430 ML20207B437 ML20207B443 ML20207B450 ML20207B455 ML20207B460 ML20207B467 ML20207B472 ML20207B479 ML20207B484 ML20214H930
References
FRN-51FR24078, RULE-PR-171 AC30-2-18, NUDOCS 8612010168
Download: ML20207B479 (9)

Text

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..... AUG 2 21986 MEMORANDUM FOR: Robert L. Fonner, Deputy Director Regulations Division Office of the Executive Legal Director FROM: Lars Solander, Chief Planning and Resource Analysis Branch Planning and Program Program Analysis Staff Office of Nuclear Reactor Regulation

SUBJECT:

TREATMENT OF OPERATING NUCLEAR POWER PLANTS FOR 10 CFR PART 171 ON LICENSE FEES It is PRAB's position that the new license fees rule, 10 CFR Part 171, should apply to any commercial nuclear power plant to which NRC has granted a license to operate at any power level from zero to 100% (full power). The rule should exclude those plants that are not operating as a result of being decommissioned (permanently withdrawn authority to operate), having the operating license revoked by HRC, or being ordered to shut down permanently by NRC. In no case would these plants have plans to operate in the future. An exception would be TMI-2 which would be required to pay fees under Part 171 unless the Commission determines otherwise, since it currently does not meet the criteria to be excluded from 10 CFR Part 171.

jk.L8 ' c' Lars Solander, Chief Planning and Resource Analysis Branch Planning and Program Analysis Staff i

Office of Nuclear Reactor Regulation cc: R. Smith, ELD 8612010168 861121 PDR PR 171 51FR24078 PDR 7bi:Oi ;N.,2 Y

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. 33224 Federal Register / Vol. 51, No.181 / Thursday, September 18, 1986 / Rules and Regulations e us Ag(

NUCLEAR REGULAVORy by the Commission for such fiscal year under amendments). This fee will include cost other provisions of law, is estimated to be for many operating reactor-related COMMISSION equal to 33 percent of the costs incurred by regulatory costs not recovered under the Commission with respect to such fiscal NRC's existing fee schedule.10 CFR Part 10 CFR Parts 5f and 171 170 (49 FR 21293: May 21.19M). which II an such charge assessed pursuant to established fees for some regulatory Annual Fee for Power Reactor this paragraph shall tse reasonably related to the regulatory sersice provided by the services that NRC provides its licensees.

Operating Licenses and Conforming Amendment Commission and shall fairly reflect the cost The proposed rule provided that Part to the Commission of providing such service. 170 would be suspended and, therefore.

ocENcV: Nuclear Regulatory The legislative history shows that no fees would be collected under the Commission. Congress intended the authority of this IOAA.This proposal also relieved small Action:I mal rule, mandate to go beyond that contained in materials licensees of all fees. The final theIndependent Offices Apprcpriation rule provides that Part 171 will not affect

SUMMARY

The Nuclear Regulatory Act (IOAA) of 1952 (65 Stat. 290; 31 the existing to CFR Part 170 fee Commission is adding to its regulations U.S.C. 9701). The Congressional schedule.This means that all fees a new regtlation that willimpose an Managers of CODRA,in describing this currently collected under 10 CFR Part annual fee on power reactors with ,

legislative provision, asserted: 170 will continue to be collected.

operating licenses. This annual fee will including those from small materials recover allowable NRC budgeted costs The charges assessed pursuant to this licensees. Thus, under the final rule.

authority shall be reasonably related to the l for providing regulatory services to ngulat ry service pr vided by the holders of power reactor operating l power reactors with operating licenses Commission and fairly reflect the cost to the licenses will pay an annual charge and will not alter the existing fee Commission of providmg such service. This is (CODRA) under Part 171 and IOAA fees schedule under 10 CFR Part 170. The, intended by the conferees to estalitish a under Part 170. Other applicants and annual fee is necessary to comply with standard separate and distinct from the I censees will pay fees only under Part the statutcry mandate of the Commission's esisting authority under the Independent Offices Appropriation Act of IE Consolidated Omnibus Dudget The Commission has placed in its 1952 in order to permit the Commission to Reconciliation Act of 1985. m re fully rec ver the costs associated with Public Document Room at 171711 Street, EFFECTIVE DATE: October 20,1986. regulating vanous categories of Commission NW., Washmston. D.C., data used m FOR FURTHER INFORMATION CONTACT licensees. developing the proposed to CFR Part Robert L Fonner. Office of the General See 132 Cong. Rec.11879 (Daily Ed. 171. Copies of the comments received.

March 6,1986);132 Cong. Rec. S2725 and a separate document that Counsel. U.S. N,uclear Regulatory Cmnmission. \\ ashm, gton, DC 20555, [ Daily Ed. March 14,1986). categorizes and summarizes these Telephone: 301-492-6692. The NRC is construing this legislation comments by facilities, Agreement States, and materials licensees.

SUPPLEMENT ARY INFORM ATION: to permit it to charge licensees not only Contents for special benefits provided to  !!. Summary of Comments individual licensees, as that term has I k d been used in construing the IOAA, but Only three commenters supported the A.Au o ity for the Rate proposed rule the majority of the sixty.

D. Revisions and Effect on Existir.g Fee also to recover the cost of any Commission activity reasonably related one comments discussed eleven Schedule to regulating power reactors licensed to common concerns:

11. Summary of Comments

!!!. Resolution of Comments operate. 1. Constitutionality of the Annual Fee IV. Section-by-Section Revision 2. Exclusion of Some Licenses from Fees B. Revisions and Effect on Existing fee I. Background Schedule 3. Collection of One-Third of the NRC Dudget A. Authorityfor the Rule The proposed rule (July 1,1986; 51 FR 24078) provided that applicants for 4. Inclusion of Research Costs in Fee The Consolidated Omnibus Dudget Base power reactor operating hcenses or Reconciliation Act (CODRA) of 1985 holders of power reactor operating 5. Fines. Penalties, Interest, and (Pub. L 99-272,1986) requires the licenses and major materiallicensees Reimbursements Nuclear Regulatory Commission to w uld pay an annual fee m lieu of all 6. Basing the Fee on Size of Reactor assess and collect annual charges from other fees- 7. Iligh-Level Waste Fund -

persons licensed by the Commission The final rule willimpose an annual pursuant to the Atomic Energy Act of ,

8. Exemption Provision fee n power reactors with operating 9. Quarterly Assessments 1954 (42 U.S.C. 2011 et seq-) in an licenses. The annual fee under to CFR amount to approximate 33 percent of the Part 171 will be based on NRC budgeted 10. Adjustments Commission's estimated budget.

c sts for providing the following Section 7601 of the Budget Twelve commenters thought the regulatory services to power reactors Reconciliation Act states that the with opera ting licenses: (1) Research proposed fees to be unconstitutional, charges assessed shall be established by activities directly elated to the and four commenters said no annual rule and, specificallu, in paragraph (b)[I) regulation of pow r reactors on a

- fees should be assessed to recover NRC that.' generic basis. (2) power reactor plant costs for providing regulatory services,

• *

• the Nuclear Regulatory Commission regulation (except licensing and but, rather that the public, as the real shall assess and collect annual charges from inspection activities. and Part 55 beneficiary of NRC regulatory services, ts I censees on a fiscal year basis, except operator hcensing and instructor should support the regulatory corts of certification), and (3) safeguards the NRC. Thirty-four commenters, in (Al the masimum amount of the aggregate opposition to the proposed rule, charges assessed pursuant to this paragraph activities for power reactors (other than those activities directly associated with requested that small materials licenses in any fiscal year may not exceed an amount that, when added to other amounts collected plant-specific licensing and be subject to fees charged by the NRC

' .-:.~.- - - - -- .

r Federal Register / Vol. 51. No.181 / Thursday. September 18, 1980 / Rules and Regulations 33225 OP g

Two commenters stated that relief fees established by the Supreme Court

should be given from the proposed fees administrative agencies. A reading of c

for uranium mills licenses. One in Nationa/ Cable Television v. United those cases indicates that Congress may commenter thought that suspended States. 415 U.S. 336 (1974) and Federol delegate its authority to administrative j license applications, with minimal Power Commission v. New Eng/ond Power. 415 U.S. 345 (1974) and further agencies provided that it sets forth activity, should not be subject to the intelligible standards for the agency to developed in subsequent decisions by f; proposed annual fee because the fee courts of appeals. In NationalCch/e and follow in carrying out the would be disproportionately large in New Eng/andPower, the Supreme Court Congressionally prescibed policy. - ^

relation to the profit realind in that examined agency authority to assess Hampton.fr. Er Co. v. UnitedStates. 270 circumstance. One commenter also fees pursuant to a particular statute. the U.S. 394 (1948). A delegation is not thought that operating license (01.) Independent Officers Appropriation Act unconstitutional simply because the applicants would not be receiving a of 1952. The Court there adopted a determination of facts and the

' benefit from the activities upon shich limiting construction of the IOAA to inferences to be drawn from them in the proposed fee was based and w ould, avoid a Constitutional question of light of the statutory standards and in effect, have a double fee burden whether certain language of the IOAA declaration of policy call for the l

because they would pay the nnnual fee amounted to a delegation to assess exercise of judgment and for the in addition to fees previously paid under " taxes" rather then " fees." The Court formulation of subsidiary administrative Part 170. One commenter asserted that indicated that the legislative history of policy w thin the prescribed statutory

!l " Architect Engineers, vendors. test the IOAA did not reveal an intention on framework. Yakus v. UnitedStates. 3:1

!i reactors, waste repositories and others the part of Congress to delegate its U.S. 414, 425 (1944).

. . ." should pay annual fees, taxing authority to Federal agencies. In In COBRA, Congress has laid down Several commenters expressed the short. the Court,s analysis was largely an intelligible standard for the view that the NRC was not required to limited to the IOAA itself. The iss. o a p y and h collect a full 33 percent of its budget. commenters. however, appear to read Eleven commenters held tha view that these cases as establishing general Put, the NRC is to recover agency research costs should not be Constitutionallimitations on an approximately 33 percent ofits budget included in the cost lasis for agency's power to assess fees. from user fees (see Statement of determining the annual fee. Two Accordingly, many of the commenters hianagers Re NRC Fees) and is to assess commenters asserted that fines. interest, argued that because the NRC was not fees based on the standard articulated and penalties should be included in the only charging for "special benefits" above. We believe this delegation of cost basis for the proposed fees. Ten provided to identifiable recipients of authority to the NRC satisfies all I commenters thought the annual fee NRC services, but also recovering the Constitutional requirements.

should be assessed on the basis of costs ofits generic rulemaking and The courts have previously power rating in thermal megawatts (one research activities, the NRC was commenter opposed this suggestion). Imposing an unconstitutional tax. considered the issue of whether a fee One commenter thought that the can be charged for a service provided by The Commission finds these legal Department of Energy high. level waste arguments to be unpersuasive.The the Government that benefits not only program fund should be subject to fees. commenters' arguments are based on the licensee, but also the general public.

One commenter said that an exemption The Courts have held that the mutual the faulty premise that the only legally, provision was needed for small and acceptable standard for assessing fees is benefit of a Government service to the espensive.to operate reactors because recipient and to the public is not a legal that contamed in the IOAA. In Section of the disproportionate burden that the 7601(b)lD) of COBRA, Congress bar to the imposition of fees. Prorating proposed rule would impose on the provided that annual charges assessed of costs on the basis of benefit to the resources generated from these reactors. by the NRC ". . . shall be reasonably public 4 not required. Mississippi-Six commenters thought that fees should related to the regulatory service Power P Lisht Co. v. U.S. Nucleor pr vided by the Commission and shall Regulatory Commission. 601 F.2d 223 be collected on a quarterly or a monthly basis. Commenters urged that, should fairly reflect the cost to the Commission (1979), cert. denied 444 U.S.1102 (1980).

excess fee's be co!!ected a provision for f pr viding such service. The Thus the only question that remains is refunds be included in the rule. Finally, underlying legislative history makes whether the fe'e schedule promulgated several commenters thought that the clear that this provision is intended by by the NRC falls within the parameters comment period for the proposed rule the conferees to establish a standard authorized by Congress. We believe that was too short. separaje and distinct from the t clearly does. Following the No comments were receised regardin,, Commission s existing authority undef Congressional mandate we are the Proposed amendment to 10 CFR Part AA in rder to permit the Commission attempting to collect a third of our St. which provides that promu!gation of I m re fuh m m c sts budget in fees and, as explained Part 171, and future amendments ass ciated with regulating various elsewhere in this notice, have carefully thereto, does not require preparation of 8",

" ' developed a scheduie which ensures an environmentalimpact statement or 9 **[r g Re 'RC Fe$s. that fees assessed are reasonably auessment. 132 Cong. Rec.11. 879 (Daily Ed. Afarch nlated to the NRC costs of providing 6.1986): 132 Cong. Rec. S. 2725 (Daily regdatory services.

111. Resolution of Comments Ed. March 14,1986). Congress

1. Constitutionality of the Annuc! Fee undeniably has the authority to provide 2.

reeg Esclusion ofSome Licenses from Comment: Many of the commer;ters a fee standard distinct from the IOAA.

prosided that the standard satisfies Comment: Agreement States and argued that the Commission was Constitutional requirements.

imposing an unconstitutional tas some other commenters asserted that in numerous cases the Supreme Court the proposed rule, in eliminating fees for Response:The thrust of commenters' arguments was that the Commission's has addressed the issue of whether small materials licensees, would have a proposal violated constraints on user Congress has unconstitutionally severe adverse effect on State fee delegated legislative power to programs and that to CFR Part 170

J. -

33226 Federal Regi ter / Vol. 51, No.181 / Thursday, September 18, 1980 / Rules and Regulations should be retained in order to maintain that Congress expected the NRC to regardless of type, were included in the reasonable fees for materials licensees. charge the full amount authorized by the cost basis. Costs for research Afany commenters asserted that the statute.The Statement of Afanagers, ru!cmaking and other activities not Commission had misconstrued which was drafted to reflect the views relevant to all reactors will not be Congressionalintent by proposing the of the Conference Committee that recovered through fees. A detailed suspension of collections under the considered the legislation and was breakdown of costs to be recovered is

!OAA-the authority for the current Part inserted into the Congrrssiona/ Record available in the NRC Public Document 170. Commenters argued that the as part of the floor debate on the Room in Washington, D.C. Based on this Congress contempla:ed that the NRC measure, states:

review the cost basis for the annual fee would continue to collect fees under the

,+ ne conferees agreed to require the NRC to has been revised as follows:

IOAA, as well as CORBA. Specifically, ' assess and collect annual charges from its many commenters vigorously argued hcensees in an amount that, when added to FISCAL YEAR 1987 PROJECTIONS OF NRC that Congress contemplated that all other amounts collected by the Commission COSTS FoR NUCLEAR POWER REACTOR licensees should pay fees and that the shall not exceed 33 percent of the REGULATORv GENERIC PROGRAMS NRC lacked authority to exempt all Commission's budget for each fiscal year.

small materials licenses from payment Assuming the current lesc! of NRC IU ""'" "*"d'I of fees, espenditas, this is expected to result in the c

.o,,,,,

Response:The Commission believes it c 11ecti n iadditi nal fees n an amount up eroram. voi iory

• ' '# * " P*

did not misread the Congressional P achIsc]! 3eaj. "

intent, and that it has the authority R.=.-ca sioss under COBRA to suspend collections 132 Cong. Rec. II. 879 (Daily Ed. hfarch sai.vo-o. n2s u:ider Part 170 and not charge fees to a 1986); 132 Cong. Rec. S. 2725 (Daily O%", o,c.,,,,,,, -

Z small materials licensees. The Ed. hfarch 14,1980). Anarr i's ano evamahon as operanonne data _ _ e 7.72o Commission, nonetheless, has decided We read this limited legislative T.,_ nm to retain Part 170 as a means of more history as indicating that Congress cquitably distributing the agency costs expected this legislation to result in ~

imot g those receiving services, approximately $80 mnlion in collections . Because the costs listed above apply The final rule will'not affect materials each year above that already collected t all power reactorscthe costs have licensees; they will continue to pay only by the NRC under Part 170. To meet this been dis,ided equally for purposes of fees chargeable under part 170. hfajor target, collecting a full third of the NRC calculating the annual fee. This materials licensees will not be subject to budget is required.. approach is consistent with the c n annual fee, as previously proposed. Such an interpretation is also Congressional directive that all fees be OL applicants similarly will remain consistent with the President's request reasonably related to the cost of subject only to fees under Part 170. With to Congress that the NRC recover a far providing services.

the issuance of an operating license, a greater amount ofits budget from user S. Fines, Penalties, Intenast, and former OL applicant will be subject to fees. The President in his proposed Reimbursements the annual fee required under this final budget to Congress for fiscal year 1987 .

rule in addition to the other fees had suggested that 50 percent of the Comment: Commenters said that collected for services covered by Part NRC budget be recovered through user fines, interest, penalties, and 170. If an OL applicant receives its OL fees. a figure adopted by the Ifouse of reimbursements should be included in I license during the year,it will pay only a Representatives, but reduced in the cost basis as collections under other 1

prorated annual fee for that year, Conference Committee. laws.

because, under the final rule, Part 170 . Re8Ponse: The commenters argued will remain in effect, and fees will be t nc usm.n ofResearch Costs in Fee that COBRA provides that the maximum Base collected under Part 170 up to the time total of fees to be collected by the NRC ofissuance of the OL The applicants for Comment: Commenters argued that may not exceed, when added to other licenses and holders of these licenses the NRC research costs should not be amounts collected by the Commission, for test and research reactors and waste recovered through fees. 33 percent of the Commission's budget.

, repositories will also continue to pay Response: Commenters argued for Accordingly, they believe the 33 percent fees under that part. Vendors will also instance that a boiling water reactor totalis to be derived by adding fees continue to pay fees under Part 170. (BWR) licensee under the proposed rule collected to fines, interest. penalties, would be paying for research on a and reimbursements collected. The J. Collection of One-Third of the NRC pressurized water reator (pWR) and Commission rejects this argument. Fines Budget vice versa. This could result in one and penalties are charged because of Comment:The Commission is not group of licensees subsidizing another. It the failure of a licensee to adhere to required by Section 7601 of the COBRA was also argued that other research prescribed standards or requirements.

to collect the full 33 percent ofits costs may be relevant only to future No public policy would be served by budget. generations of reactors, but of no benefit reducing a power reactor's annual fee Response:The Budget Reconciliation to the current reactors.The Commission because a utility violated NRC's Act provides that the " maximum amount has reviewed again the research portion requirements. We are unwilling to cf the aggregate charges assessed may (as well as the Nuclear Materials Safety attribute such an intent to Congress. Nor not exceed an arnount that . . . is and Safeguards, Nuc! car Reactor do we believe Congress contemplated estimated to be equal to 33 percent of Regulation, inspection and Enforcement, reducing fees to account for interest the costs incurred by the Commission and Analysis and Evaluation of paid to the NRC. Interest is assessed with respect to such fiscal year. . . ." On Operational Data portions) of the cost only for late payment of monies due the its face, this is a ceiling,i.e.,it would basis for the annual fee. The purpose of United States. Accordingly, interest is permit the Commission to charge user this review was to ensure that only not included in the cost base.

fees of less than 33 percent. llowever, generic costs associated with all pcwer Finally, the NRC receives the legislative history clearly indicates reactors, with operating licenses, reimbursements from other Federal

? - l i

Fed;r:l Regi:t:r / Vol. 51. No.181 / Thursday. September 1tl.1986 / Rules and Regulations 33227 arncies of approximately S50.000 per DOE fees.The Commission does not annual fee is set and if the final

. sear. We have not included this sum in construe COBRA as augmenting NRC appropriation is greater or less than the the fee base. The purpose of COBRA authority in such a way as to permit the was to generate additional Federal projection the annual fee would be NRC to collect fees from the DOE. raised or reduced, as appropriate, and revenue as compensation for services rendered by the NRC. The transfer of B. Eremption Prorision an adjustment to the remaining funds from one Federal agency to Comment: One commenter, a holder of quarterly installments or a refund would unother does not result in increased be made, as appropriate.

a license for a small reactor, requested Federal revenue. Accordingly. Congress that provision for exemptions from the 11. Comment Perm. d did not contemplate that full annual fee be included in the final reimbursements would be in the fee rule. Comment: Some commenters argued base. Response: While the Commission is that the Commission should have 6 Bosm.g the Fee on Size ofReactor concerned with recovering its costs it is provided for more than a 15-day comment period on the proposed rule.

not the intent of the Commission to Response The Commission was under Comment:The annual fee should be promulgate a fee schedule that would based upon the power rating in thermal have the effect of imposing fees at such a statutory mandate to promulgate final megawatts for each reactor. fee regulations 45 legi2lative days after Response: The Commission has a level that the owners of the handful of small, older reactors would find it in submission ofits July 7.1986, report to considered calculating the annual fee on their best economic interest to shut their Congress on user fees. A longer power reactors with operating licenses reactors down. Therefore, the comment period would have prevented on the thermal megawatt ratings of Commission has included an exemption the Commission from meeting the those reactors. An argument can be provision that takes reactor size and age Congressionally mandated deadline.

made that the larger the reactor, the Under the circumstances, the comment and other factors mto consideration in ~-,~

greater the licensee's ability to generate determining whether a license should be period was reasonable, particularly income to pay the annual fee. 'Ihe exempted from the full annual fee. because licensees were on notice in I COBRA. however, requires that the fees April when COBRA was enacted that -

9. Quorterly Assessments be reasonably related to the agency s costs of providing services to the the NRC would be proposing substantially higher fees. Aforeover.

Comment: Several commenters were 't licensee. As discussed in the proposed concerned with the size of the annual based on the thoroughness of the rule (51 FR 24078. 24082-3,'. the k+'

fee and its effect on their cash flow. The comments received and the numerous Commission has examined the commenters also suggested that the issues raised in them. the Commission is -

relationship between megawatt ra ting NRC not require payment of fees in a conv.nced that all relevant issues of i and the costs of NRC regulation.The single lump sum. importance to this rulemaking have been

~

l NRC finds no necessary relationship or Re8Ponse:In recognition of these identified and that the commenters have predictive trend between the thermal concerns. the Commission will collect not demonstrated that theYhave been megawatt rating of a reactor and NRC the annual fee under Part 171 fr. equal prejudiced by the 15-day comment regulatory costs (see Alemorandum to quarterly installments. Fees collected penod.

Files.' entitled " Reactor Inspection, under Part 170 will continue to be Licensing and Part 55 Fees Assessed for IV. Section-by-Section Revision collected under the payment schedule One Year Period." dated July 7.1986, set forth under that part. 8####" III I N P##^

from James llolloway. Acting Director- The purpose section is revised to state License Fee hianagement Staff. Office of 10. Adjustments .

Administration). Accordingly. the .

that Part 171 sets out the fee to be Comment: Provision should be made ~charged persons licensed to operate a Commission has determined that fees f r refunds if the total of fees collected power reactor as defined in the new should not be based on the size of the exceds 33 percent of the NRC budget part.

reactor. Nevertheless, in recognition of enacted by Congress.

the problem that some licensees of . Response The Commission agrees gcc,m.n 171.3 Scope.

smaller reactors may have in paying with commenters that the possibility The scope is revised to state that Part substantially increased fees, the exists, under both the proposed and 171 applies only to persons licensed to Commission has provided for fee final rules, that the aggregate of operate a power reactor.

exemptions. This issue is discussed in c llections under Parts 170 and 171 item 8. Exemption Provision. c uld exceed the statutory limit of 33 Section 171.5 Definitions-percent of the NRC budget in a given in the final rule, the definitions for

7. ///sh-Level ll'aste Fund fiscal year. Therefore, a section has "hfa terials license," " Source ma terial "

Comment:The Department of Energy been added to the final rule which and "Special nuclear material" have (DOE) should be assessed fees, payable requires that any such overpayment be from the high-level waste fund, for NRC been deleted because licenses for these returned on a prorata basis to those who materials will remain subject to the services provided toward high-level pay fees under Part 171. Provision is appropriate fee schedules under 10 CFR waste management. also made for adjusting the refund to Response The Commission has no take into account any power reactors Part 170. The definition for " Nuclear legal authority to charge the DOE fees power reactor" has been modified to that were given an operating license for NRC staff work associated with during the course of the fiscal year and conform with the definition for " Power high-level waste.The IOAA and the reactor"in 10 CFR Part 170.

thus did not pay the full fee. lf the Atomic Energy Act of1954, as amended, prorata share of the overpayment is .

Section 171.11 Exemption.

do not authorize the NRC to charge the $t0.000 or less, it will be credited As stated in the proposed rule (51 FR against the annual fee for the following 24078,24082), the Congress urged the

. non or %, m,mo,,,a,, ,, ,y,,,,,g,i, ,,, fiscal year.

Commission to consider the impact ofits rmew at thk NRC Public Document Room.1717 ll s: rect. Nw washington. Dc.

Finally,if a final appropriation for the fee schedule on certain licensees. Based NRC has not been passed at the time the on comments received, the Commission

[*

33228 Fedirrl Register / Vol. 51. No.181 / Thursday September 18, 1986 / Rules and Regulations has determined that it is appropriate to The annual fee is calculated as the statutory limit on collections of 33 take a similar approach in setting the fee follows: percent of the NRC budget. For example, schedule for power reactors with $105 million (NRC FY 87 several plants could be licensed to operating licenses. Accordingly, the budget)x.33 = S133 million (rounded operate during the fiscal year and added Exemption section provides that down to the nearest milhon) thereby pay a prorata share of the the holder of a license to operate a St33 million minus $37 million (est. fees annual fee, or the number of power reactor who believes that the Part 170. FY 87)= $96 million amendments. inspections, or other annual fee is unfair or overly $90 milhon divided by 101 licensed activities subject to fees under Part 170 burJensome may apply to the . reactors = S950 thousand per license could be greater than estimated at the Commission for partial relief from the [ rounded down to the nearest beginning of the fiscal year.

annual fee. The Commission may grant thousand)- The purpose of the annual fee such relief, if it is persuaded by the pursuant to Part 171 is to collect that Section 171.17 Proration.

licensee that factors such as age and portion of costs to the agency of size of the plant and size and impact on Section 171.17 in the proposed rule providing regulatory services to power its customer rate base substantially addressed the annual fee and its reactors, but with a ceiling on those reduce the NRC's regulatory costs for calculation for major materials licenses. collections equal to the difference that plant and the benefits bestowed on As they will not be subject to fees under between collections under Part 170 and that licensee below that of the other this part, that section is deleted and a 33 percent of the NRC budget.

power reactors. Nevertheless, the new I 171.17 is added to the final rule Accordingly, any collection of fees a2ency's intent is to grant exemptions for the purpose of addressing the issue exceeding this ceiling will be refunded sparingly, of prorating fees for power reactors that under this part. Refunds will be adjusted

. are licensed to operate after the to allow for the fact that some licenses Section 171.13 Notice- beginning of a fiscal year. No such may only have been subject to a portion "I his section, which was i 171.11 in provision was necessary in the proposed of the annual fee because the license to the proposed rule,is revised to reflect rule. As revised, applications for operate was issued during the fiscal that only power reactors licensed to. pet ting licenses under review will still year. Ilowever. it is anticipated that operate are covered by the final rule. . be subject to fees chargeable under Part - .overpayments will arise unde ~r this 170. It would not be fair to holders of provision rarely,if at all. and will Section 171.fo, Annua / fee! Power new operating licenses to charge them probably not exceed $10.000 per license.

reactor operating licenses. the full annual fee m addition to fees Because of the administrative costs The proposed i 171.15, Annual Fee: Wch mW W accrud un&r 170 durmg a fiscal year but prior t Pad assoc ated with making a refund from Materials Licenses, has been deleted. the U.S. Treasury, any overpayment of '

issuance of an operating license.The $10.000 or less will be credited against This renumbered section on computing be the annual fee is revised to reflect that "j " " , " "d ,*, p ,,i fee by 3 an then the annual fee for the following year.

only power reactors will be subj,ect t multiplying the quotient by the number Section 171.25 Collection. intemst, the annual fee under Part 171. The of days remaining in the fiscal year after penalties, and administmtive costs.

formula was also revised to deduct the the operating license issuance date. For Th.is renumbered section, which was estimated fees to be collected under Part example,if an operating license were 170.The fees under Part 170 are $ 171.23 in the proposed rule, is modified issued on january 15 of fiscal year 1987,. slightly to reflect the requirement under estimated for fiscal year 1987 to be $37 the annual fee for that fiscal year would million. It is estimated that 4 CFR Part 102 that, in addition to be $950.000 divided by 365, which is approximately $30 million of this interest and penalties, admimstrative ,

S2,003, and then multiplied by 258 (the amount will come from power reactor' c sts of collection also are recoverable number of days remaining in FY), which with operating licenses. The annual fee by the NRC. The section is also modified is $671.57 8.

will be charged to every power reactor in recognition of the authority given unit licensed to operate as of October 1. Section 171.19 Payment. under i 171.19 to pay the annual fee in 1986 (assumed to be 101 reactorsj. and, This section, which was i 171.17 in quarterly installments. If the quarterly on a prorata basis, to any power reactor the proposed rule, is revised in the final installment is not paid on time in licensed to operate during the fiscal rule to allow the NRC to prescribe only accordance with the schedule provide _d year. If a power reactor licensee has those collection mechanisms that are in i 171.19, then the full annual fee only the authority to possess nuclear acceptable to the U.S. Treasury becomes immediately due and payable.

material and the Commission has Depr.rtment. At this time, such Interest, penalties (if applicable), and received a request from the licensee to mechanisms include checks, drafts, administrative costs of collecting the fee amend its license to permanently money orders, or the Electronic Funds will be calculated from the date that the withdraw its authority to operate the Transfer System. This section also has late quarterly installment was due.

reactor, or the Commission has been revised in the final rule to provide UnchangedSections.

permanent!y revoked such authority, the for payment in quarterly installments of licensee is not subject to the annual fee the Part 171 fee rather than payment in a Sections 171.7, Interpretations,171.9, under this part for that power reactor. Communications, and renumbered single lump sum as proposed.

Such reactors no longer benefit from the 171.23. Enforcement, are in this final rule regulatory services that are the basis for Section 171.21 Refunds. as they were in the proposed rule.

the annual fee. Plants within this latter Section 171.21, in the proposed rule 10 CFR 51.22 Categoricalexclusion.

category, such as Dresden 1. Ilumboldt was Enforcement and as renumbered Bay, Peach Bottom 1, and Indian Point 1 i 171.23 in the final rule.This new The amendment to 10 CFR Part 51 to

'will not be charged fees under this part i 171.21 is added to address the include Part 171 as a categorical (though they remain subject to any contingency that by the end of a given exclusion is unchanged.

applicable fees pursuant to Part 170 of fiscal year, the aggregate of collections Commissioner Thomas M. Roberts this chapter), under Parts 170 and 171 might exceed abstained. The separate views of A

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Federzl Register / Vol. 51. No.181 / Thursday. Septernber 18, 1986 / Rules and Regtilations 33229 Commissioner Frederick M. Dernthal are mandated to protect. But if that is so.

follow: Title V of the Independen't Offices should our licensees then be required to pay Appropriation Act of1952 (IOAA)(31 While this final rule is a distinct pfwe

• improvement over the Commission's earlier an ac f t f r exa pie a so for proposed rule, it still suffers from several the costs of a belated agency decisinn to power reactors, test and research technical defiriencies, and more importantly, require the backht (because earher regalatory reactors, fuel reprocessmg plants, and i

from fundamental infirmities which I noted in standards were found to be inadequate)? materials licenses. It was revised and my presious views on this subject- In passing the 1954 Atomic Energy Act. updated in 1978 and 1984.

Congress found that; Whether or not the user fee idea is The license fees were designed to conceptually sound, one cannot justify the 1Rlegulation by the United States of the production and utilization of atomic rec ver a part of the costs of services a:sessment of one class oflicensee to pay for energy and of the facilities used in attributable to identifiable recipients,

" services" which benefit another. The user fee concept should be permitted to sink or connection therewith is necessary. .to Only those costs that were associated swim in court on its own ments, unburdened protect the heo/th andsofety of the with the review of a license application by questions of equity in imp!cmentatien- public. [ emphasis added)

In the Energy Reorganization Act of 1974.

and related to a specific identifiable The final rule advanced by the Commission beneficiary were used in the cost base Congress declared that the promotional and is so burdened to the extent that it (11 singles out one class oflicensee for payment of the regulatory functions of the Atomic Energy for the establishment of the fee

" extra fee"over and above the part 170 fee Commission should be separated, because it schedule. Certa.m costs under the schedule, and (2) charges the same " extra" was "in the public interest", that the purpose Commission's 1984 revised fee schedule fee to all holders of operating licenses, of the Act was,among other things "to assure public health and safety." in 10 CFR Part 170 (49 FR 21293) despite the fact that good performers will be continued to be excluded from fees.

These Congressional findings and subsidizing poor performers on whose behalf Some of the costs that were excluded statements of purpose strongly suggest that the NRC must frequently put forth extraordinary efforts. the responsibilities of this agency are to be from the fee base were those associated Further, this final rule does not assess the carried out for the benefit of the general with: (1) Research. (2) generic licensing Department of Energy, via the nuclear waste public, and not for the benefit of any single activities. (3) standards and code enterprise, public or private. lf there were fund or other appropriate machanism. for development. (4) contested hearings. (5) any direct benefits to be conferred upon NRC services related to the Nuclear Waste those whom we regulate. it seems clear that the Office ofInternational and State policy Act. Absent extraordinary accounting those vanished (and appropriately sol when programs. (6) the Office of Inspector and pricaution by Congress in its annual the AEC was split and its promotional Auditor. (7) the Office of Congressional appropriations, the rule would thus andirectly responsibilities assigned to agencies other Affairs and (8) the Office of Public require utilities to subsidize the regulatory than the NRC. Affairs.

costs attendant to the geologic disposal of The American public, through its elected ~'

, defense high level waste. lf the user fee representatives. has thus charged the NRC Section 7001 of the Consolidated concept is to be applied at all. it ought to be Omnibus Budget Reconciliation Act of applied in a manner such that. insofar as with regulating the nuclear industry to promote safety and security. Yet the 1985 requires the NRC to establish by possible, all entitles which derive a " benefit" rule an annual charge for its licensees Commission is now required to implement from NRC services share equally the costs of legislation, the premise of which appears to that, when added to other amounts providing that benefit. . .

be contrary to the stated purposes of this collected,is estimated to be equal to 33 Technical deficiencies of this rule aside, agency's enabling legislation.

however, there are elemental reasons for percent of the estimated costs incurred i therefore approve this findl rule only to by the Commission. This section concern with all rules such as this. User fees permit the Commission to promulgate have an undeniable philosophical and implementing regulations in fulfdtment of its authorizes NRC to expand it's fee base to popular appeal-after all. who can be against Congressional mandate, recover costs previously excluded lsuch thi benefactors of federal regulatory services as research and generic licensing paying the cost of such services? But the user avironmental Impact: Cate2orical fee principle must proceed from a single Exclusion - activities. This final rule reflects N,RC's mterpretation of the intent of $cction premine: namely, that such fees be required

• e sw The action required under this final

,ch are,esubi yi y rule is administrative and would not n short. t'.at Regulatory Flexibility Certification impact the environment. The e play g I no vel. Nurlear Commission has determined pursuant to This rule is not a major rule for the utilities are now to be singled out for 10 CFR 51.22(a) that this final rule would Purpose of Executive Order 12291 of peyment of a user fee tax. while Congress be the type of action that is described in February 17,1981. As required by the has not seen fit to levy corresponding charges categorical exclusion 10 CFR 51.22(c)(1). Regulatory Flexibility Act of 1980. 5 on other utilities which are the Therefore, neither an environmental

' beneficiaries" of similar Federal regulatory U.S.C. 005(b). and NRC Size Standards activity. I make no judgment on the merits of impact statement nor an environmental (50 FR 50241. December 20,1985). the the many and diverse regulatory activities of assessment has been prepared for this Commission hereby certifies that this the Federal Government. But i fed to see how Proposed rule- final rule does not have a significant our hcensees bencht more from regulatory services than do the coal-burning utihties Paperwork Reduction Act Statement upon whom the epa conferred the " benefit- ride affects only nuclear power plants of requirements for scrt.bber installation to This final rule contains no information licensed to operate. The companies that collection requirements and, therefore, own these companies do not fall within reduce stack emissions. or for anat matter. is not subject to the requirements of the than do the pharmaceutical houses regulated the scope of the definition of"small by the FDA. or than du a host of other Paperwork Reduction Act of1930(41 U.S.C. 3501 et seq.). entities" set forth in the Regulatory industries now subject to the regulatory Flesibility Act.

requirements of the government. Regulatory Analys,s i Indeed. I question the theory und the L st of Subjects Congress should be concerned,lest the The NRC's predecessor, the Atomic

""" " Energy Commission, adopted its first t e pr b eh anes o " ic s license fee schedule in the fall of 1968. Administrative practice and provided by this agency: the prime as codified ir.10 CFR Part 170. The beneficiary is the pubhc at large whom we procedure. Environmental impact authority to collect fees was based on statement. Nuclear ma terials. Nuclear

33230 Fed;r21 R; gist r / Vol. 51, No.181 / Thursday. September 18, 1980 / Rules and Regulations power plants and reactors. Reporting " Nuclear reactor" means an and recordkeeping requirements. an,ual fee assessed under this part:

apparatus, other than an atomic and M CFR Port 171 weap n. used to sustain fission in a self- (c) Any other relevant matter which ac supporting cham reaction.

Annual charges. Power plants and licensee believes justifies the reactors. Penalty. " Operating license" means having a license issued parsuant to i 50.57 of this reduction of the annual fee.

For the reasons set out in the chapter. It does not include licenses that f 171.13 Notice.

preamble, and under the authority of the only authorize possession of special Atomic Energy Act of 1954, as amended, The first installment of the annual fee nuclear material after the Commission for fiscal year 1987 will become due and the Energy Reorganization Act of 1974, has received a request from the licensee payable 30 days after the effective date as amended, and 5 U.S.C. 553. the NRC to amend its licensee to permanently of this final rule.Thereafter, the annual is amending 10 CFR Chapter I as withdraw its authority to operate or the ro: tow 3:

fee, applicable to a power reactor with a Commission has permanently revoked license to operate and calculated in such authority.

1. A new P.irl 171 is added to read as accordance with { 171.15 of this part.

I0lI"W8 .. Person" means:(1) Any individual.

will be published in the Federal Register corporation. partnership firm.

on or before September 1 each year. Tlw PART 171-ANNUAL FEE FOR POWER ass dadon, trust, estate, public or fee will become due and payable to the REACTOR OPERATING LICENSES pnva te institution, gr oup. Government NRC m accordance with i 171.19 of this sec, agency other than the Commission: any part, except as provided in i 171.17 of state or any political subdivision of. or this part. If the annual fee is based on 171.1 Purrow.

171a Scope. .

any political entity within, a state: any the amount appropriated by the 171.5 Defmitions. foreign Government or nation or any Congress for the prior fiscal year and 8 political subdivision of any such 1] $eyP e 3 9nt g vernment or Lation: or other entity!

Congress. during the fiscal year, enacts an appropriation different from that 171.11 Esemption. und (2) any legal cuccessor.

171.13. Notice.

used in setting the fee, the annual fee representative, agent, or agency of the 171.15 Annual Feci Power reactor operat' ing foregoing. will be revised to reflect the actual licenses. amount appropriated by Congress for

" Power reactor" means a nuclear the fiscal year. Notice of this revision 171.17 Proration.

171.19 Payment. reactor designed to produce electrical or will be published in the Federal 171 21 Refunds. heat energy and licensed by the Register.

171.23 Enforcement. Commission under the authority of 171 25 Collection, interest, penalties, and section 103 or subsection Imb of the f 171.15 Annual Fee: Power reactor Atomic Energy Act of 1954. as amended, oPwaung Hcenses.

Auth i : .

1 P b. L 99-272.100 and pursuant to the provisions of (a) Each person licensed to operate a Stat.146; sec. 301. Pub. L 92-314. 86 Stat. 222. I 50.21(b) or i 50.22 of this chapter. Power reactor shall pay an annual fee (42 U.S C 2201!w]); sec. 201,82 Stat.1242, as for each power reactor unit for which 171.7 Interpretations.

amended (42 U.S C 58411 the person holds an operating license at f 171.1 Purpose. Except as specifically authorized by any time during the Federal Fiscal Year the Commission in writing. no The regulations in this part set out the interpretation of the regulations in this (FY) in which the fee is due.

annual fee charged to persons licensed part by an officer or employee of the (b) The basis for the annual fee shall by the United States Nuclear Regulatory Commission, other than a written be the sum of NRC costs budgeted for Commission to operate a power reactor interpretation by the General Counsel, each FY for:(1) Research activities as defined in this part, directly related to the regulation of will be recognized as binding on the power reactors. (2) power reactor g 171.3 Scope, Commission.

regulation (except licensing and The regulations in this part apply to f 71.9 communications. inspection activities, and Part 55 any person holding an operating license All communications regarding the operator licensing and instructor for a power reactor as defined in this regulations in this part should be certification), and (3) safeguards Part, activities for power reactors (other than addressed to the Executive Director of Operations. U.S. Nuclear Regulatory those activities directly associated with

{ 171.5 Definitions.

Commission. Washington, D.C., 20555. plant-specific licensing and

" Budget" means the funds amendments).

Communications may be delivered in appropriated by Congress for the NRC ,

(c)If the basis for the annual fee is for each fiscal year, and if that person to the Commission's offices at 171711 Street NW., Washington, DC. greater than 33 percent of the NRC appropriahon is not passed on or before budget less the total estimated fees September 1 for that fiscal year, the 171 11 Exemption- chargeable under Part 170 of this funds most recently appropriated by The Commission may, upon chapter, then the maximum annual fee Congress for the most recent fiscal year. application. grant an exemption, in part. 7 g g

" Commission" means the United from the annual fee required pursuant to licensed to operate shall be calculated States Nuclear Regulatory Commission this part. An exemption under this as follows:

or its duly authorized representatives. prmision may be granted by the (NHC FY Dudget x.331 minus Est. Fees Part

" Federal fiscal year" means a year Commission taking into consideration that begins on October 1 of each 170 dwided by No. of Operating Licenses the following factors: for Paer Readors equals Fee per calendar year and ends on September 30 (a) Age of the reactor: """

of the following calendar year. Federal (b) Size of the reactor: (d)If the basis for the annual fee is fiscal years are identified by the year in which they end (e.g., fiscal year 1987 (c) Number of customers in rate base: less than the total NRC budgeted costs (d) Net increase in KWh cost for each times 33 percent minus the estimated begins in 1986 and ends in 1987). customer directly related to the fees payable under Part 170, then the

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T L, Federal Register / Vol. 51. No.181/ Thursday. Septernber 18, 1986 / Rules and Regulations 33231 ann'ual fee shall be calculated as follows: but with an appropriate adjustment for Authority: Sec.161. 68 Stat. 948. as any reduced payments pursuant to Ibsis for Annual Fee disided by No. of amended (42 U.S.C. 2201): secs. 201. 202. as i 171.17 of this part. Any overpayment Operating Licenses for Power Reactors of $10.000 or less (per license) will be amended. 83 Stat.1242. as amended. 1244 (42 equals Fee per License . U.S.C. 5841. 5842).

credited against the annual fee for the Subpart A also issued under National (e) The annual lee for each power following FY. Envircnmental Protection Act of1969. secs, reactor licensed to operate as of October 1,1986, is 0950m Therea fler. I n r en US 02.1ot 105. 83 Stat. 853-854 as an:emled (42 6332. 4334. 4335); and Pub. L 9w604.

annual fees will be assessed in if any person required to pay the Title 11. 92 Stat. 3033-am1. Secnon 51.22 also accordance with i 17t.13' annual fee fails to pay when the fee is issued under sec. 274. 73 Stat. sa8. as I 171.17 Proration. due, the Commission may refuse to amended by 92 Stat. 3o36-3038 (42 U.S.C.

process any application submitted by or 202 4 The annual fee for a power reactor granted its license to opera te af ter on behalf of the person with respect to any license issued to the person and 3. In i 51.22. the introductory text of October 1 of a FY shall be prorated on may suspend or revoke any licenses paragraph (c)is republished and a the basis of the number of days held by the person. reference to Part 171 is added to remaining in that FL Thereafter, the full paragraph (c)(1), which is revised to fee would be due and payable each i 171.25 Collection, interest, penalties' read as follows:

st.bsequent FY. Licenses revoked. and administrative costs.

s aspended, or for which the licensee has 1 51.22 Criterion for and identitication of The annual fee will be collected requested amendment to permanently pursuant to the procedures of 10 CFR hcensing and regulatory actions eligible for withdraw operating authority during the categorical exclusion.

Part 15. Interest, penalties, and . .

FY will not result in any refund of the administrative costs for late payments annual fee or any portion thereof. ,

(c) The following categories of actions will be assessed in accordance with 10 9 171.19 Payment. CFR Part 15 of this chapter. 4 CFR Part are categorical exclusions:

Fee payments may be made in any 102, and other relevant regulations of (1) Amendments to Parts 0.1,2. 4. 7. 8 the United States Government, as 9,10.11.14.19,21,25,55.75.95.110.140 manner allowed under U.S. Department of Treasury regulations and described in appropriate. In the event a quarterly 150.170. or 171 of this chapter, and the Federal Register notice published installment is not made by the actions on petitions for rulemaking pursuant to 1171.13 of this part. The appropriate due date specified in relating to these amendments. ^

annual fee shall be paid in quarterly 517119. the full fee becomes due and * * * *

• payable, with interest, penalties and installments of 25 percent. A quarterly Dated at Washington. DC this 16th day of administrative costs of collection September 1986.

installment is due on October 1. january calculated from the date that quarterly

1. April 1. and July 1 of each year.

installment was due. For the Nuclear Regulatory Commission.

I 171.21 Refunds. Samuel J. Chilk.

If at the end of an FY. the aggregrate PART 51-ENVIRONMENTAL Secretary of the Commission.

of collections under 10 CFR Part 170 and PROTECTION REGULATIONS FOR lFR Doc. BG-213o? Fded 9-17-06,8Mam) this part exceeds 33 percent of the NRC DOMESTIC LICENSING AND RELATED ewso coos nso.ei.u .

FIEGULATORY FUNCTIONS

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budget, the overpayment will be refunded on a prorata basis to those 2. The authority citation for Part 51 licensees who have fees under this part.: continues to read as follows!

.