ML20207B479
| ML20207B479 | |
| Person / Time | |
|---|---|
| Issue date: | 08/22/1986 |
| From: | Solander L Office of Nuclear Reactor Regulation |
| To: | Fonner R NRC |
| Shared Package | |
| ML19303E617 | List: |
| References | |
| FRN-51FR24078, RULE-PR-171 AC30-2-18, NUDOCS 8612010168 | |
| Download: ML20207B479 (9) | |
Text
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NUCLEAR REGULATORY COMMISSION b
- j WASHINGTON, D. C. 20555 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The rule should exclude those plants that are not operating as a result of being decommissioned (permanently withdrawn authority to operate), having the operating license revoked by HRC, or being ordered to shut down permanently by NRC.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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NNQ 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 Operating Licenses and Conforming the regulatory sersice provided by the services that NRC provides its licensees.
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.
l authority shall be reasonably related to the 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 IE Consolidated Omnibus Dudget Independent Offices Appropriation Act of The Commission has placed in its Reconciliation Act of 1985.
1952 in order to permit the Commission to 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.
Counsel. U.S. N,uclear Regulatory March 6,1986);132 Cong. Rec. S2725 and a separate document that 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 SUPPLEMENT ARY INFORM ATION:
to permit it to charge licensees not only States, and materials licensees.
for special benefits provided to
!!. Summary of Comments Contents individual licensees, as that term has been used in construing the IOAA, but Only three commenters supported the I
k d
A.Au o ity for the Rate also to recover the cost of any proposed rule the majority of the sixty.
D. Revisions and Effect on Existir.g Fee Commission activity reasonably related one comments discussed eleven Schedule
- 11. Summary of Comments to regulating power reactors licensed to common concerns:
!!!. Resolution of Comments operate.
- 1. Constitutionality of the Annual Fee
- 2. Exclusion of Some Licenses from Fees IV. Section-by-Section Revision 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
- 4. Inclusion of Research Costs in Fee The Consolidated Omnibus Dudget 24078) provided that applicants for Reconciliation Act (CODRA) of 1985 power reactor operating hcenses or Base 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
- 8. Exemption Provision pursuant to the Atomic Energy Act of 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 regulatory services to power reactors Twelve commenters thought the 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 charges assessed pursuant to this paragraph activities for power reactors (other than opposition to the proposed rule, in any fiscal year may not exceed an amount those activities directly associated with requested that small materials licenses that, when added to other amounts collected plant-specific licensing and be subject to fees charged by the NRC
.-:.~.-
OP Federal Register / Vol. 51. No.181 / Thursday. September 18, 1980 / Rules and Regulations 33225 r
g Two commenters stated that relief fees established by the Supreme Court administrative agencies. A reading of should be given from the proposed fees in Nationa/ Cable Television v. United those cases indicates that Congress may for uranium mills licenses. One States. 415 U.S. 336 (1974) and Federol c
commenter thought that suspended Power Commission v. New Eng/ond delegate its authority to administrative j
license applications, with minimal Power. 415 U.S. 345 (1974) and further agencies provided that it sets forth activity, should not be subject to the developed in subsequent decisions by intelligible standards for the agency to f
proposed annual fee because the fee courts of appeals. In NationalCch/e and follow in carrying out the Congressionally prescibed policy. -
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would be disproportionately large in New Eng/andPower, the Supreme Court Hampton.fr. Er Co. v. UnitedStates. 270 relation to the profit realind in that examined agency authority to assess 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 considered the issue of whether a fee commenter opposed this suggestion).
Imposing an unconstitutional tax.
One commenter thought that the The Commission finds these legal can be charged for a service provided by the Government that benefits not only Department of Energy high. level waste arguments to be unpersuasive.The the licensee, but also the general public.
program fund should be subject to fees.
commenters' arguments are based on The Courts have held that the mutual One commenter said that an exemption the faulty premise that the only legally, benefit of a Government service to the provision was needed for small and acceptable standard for assessing fees is espensive.to operate reactors because that contamed in the IOAA. In Section recipient and to the public is not a legal 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 be collected on a quarterly or a monthly pr vided by the Commission and shall Regulatory Commission. 601 F.2d 223 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 developed a scheduie which ensures thereto, does not require preparation of 8",
- [r Re 'RC Fe$s.
that fees assessed are reasonably 9
g an environmentalimpact statement or auessment.
132 Cong. Rec.11. 879 (Daily Ed. Afarch nlated to the NRC costs of providing 111. Resolution of Comments 6.1986): 132 Cong. Rec. S. 2725 (Daily regdatory services.
Ed. March 14,1986). Congress
- 1. Constitutionality of the Annuc! Fee undeniably has the authority to provide
- 2. Esclusion ofSome Licenses from reeg 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.
some other commenters asserted that imposing an unconstitutional tas in numerous cases the Supreme Court the proposed rule, in eliminating fees for Response:The thrust of commenters' has addressed the issue of whether small materials licensees, would have a arguments was that the Commission's Congress has unconstitutionally severe adverse effect on State fee proposal violated constraints on user 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 IOAA, as well as CORBA. Specifically, '
ne conferees agreed to require the NRC to has been revised as follows:
,+
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
Response:The Commission believes it c 11ecti n iadditi nal fees n an amount up eroram.
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voi iory achIsc]! eaj.
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did not misread the Congressional 3
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).
Anar i's ano evamahon as operanonne data _ _
e 7.72o r
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 I
170. If an OL applicant receives its OL fees. a figure adopted by the Ifouse of reimbursements should be included in license during the year,it will pay only a Representatives, but reduced in the cost basis as collections under other prorated annual fee for that year, Conference Committee.
laws.
1 because, under the final rule, Part 170 Re8Ponse: The commenters argued t nc usm.n ofResearch Costs in Fee that COBRA provides that the maximum will remain in effect, and fees will be 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 projection the annual fee would be was to generate additional Federal NRC to collect fees from the DOE.
revenue as compensation for services raised or reduced, as appropriate, and 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 a license for a small reactor, requested be made, as appropriate.
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 that the Commission should have base.
Response: While the Commission is 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 Comment:The annual fee should be promulgate a fee schedule that would Response The Commission was under 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.
a level that the owners of the handful of fee regulations 45 legi2lative days after Response: The Commission has 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 and other factors mto consideration in Under the circumstances, the comment
~ -, ~
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 COBRA. however, requires that the fees April when COBRA was enacted that be reasonably related to the agency s
- 9. Quorterly Assessments the NRC would be proposing costs of providing services to the Comment: Several commenters were substantially higher fees. Aforeover.
't licensee. As discussed in the proposed concerned with the size of the annual based on the thoroughness of the k+'
rule (51 FR 24078. 24082-3,'. the 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 theY ave been h
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 IV. Section-by-Section Revision Licensing and Part 55 Fees Assessed for 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-License Fee hianagement Staff. Office of
- 10. Adjustments The purpose section is revised to state that Part 171 sets out the fee to be Administration). Accordingly. the.
Comment: Provision should be made Commission has determined that fees f r refunds if the total of fees collected
~ harged persons licensed to operate a c
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.
. Response The Commission agrees gcc,m.n 171.3 Scope.
the problem that some licensees of 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 Commission has provided for fee final rules, that the aggregate of 171 applies only to persons licensed to 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-
- 7. ///sh-Level ll'aste Fund percent of the NRC budget in a given in the final rule, the definitions for 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 been deleted because licenses for these from the high-level waste fund, for NRC 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 Part 170. The definition for " Nuclear Response The Commission has no take into account any power reactors power reactor" has been modified to legal authority to charge the DOE fees that were given an operating license conform with the definition for " Power for NRC staff work associated with during the course of the fiscal year and reactor"in 10 CFR Part 170.
high-level waste.The IOAA and the 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 Finally,if a final appropriation for the fee schedule on certain licensees. Based s: rect. Nw washington. Dc.
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 Pad assoc ated with making a refund from 170 durmg a fiscal year but prior t the U.S. Treasury, any overpayment of '
Materials Licenses, has been deleted.
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
" " ", " "d,*, p,,i fee by 3 an then the annual fee for the following year.
j 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
$ 171.23 in the proposed rule, is modified 170.The fees under Part 170 are 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 4 CFR Part 102 that, in addition to million. It is estimated that be $950.000 divided by 365, which is interest and penalties, admimstrative approximately $30 million of this S2,003, and then multiplied by 258 (the c sts of collection also are recoverable amount will come from power reactor' number of days remaining in FY), which by the NRC. The section is also modified with operating licenses. The annual fee 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, Communications, and renumbered under this part for that power reactor.
single lump sum as proposed.
Such reactors no longer benefit from the 171.23. Enforcement, are in this final rule Section 171.21 Refunds.
as they were in the proposed rule.
regulatory services that are the basis for 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.
Title V of the Independen't Offices follow:
should our licensees then be required to pay Appropriation Act of1952 (IOAA)(31 While this final rule is a distinct pfwe an ac f t f r exa pie a so for improvement over the Commission's earlier 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 from fundamental infirmities which I noted in standards were found to be inadequate)?
materials licenses. It was revised and i
my presious views on this subject-In passing the 1954 Atomic Energy Act.
updated in 1978 and 1984.
Whether or not the user fee idea is Congress found that; conceptually sound, one cannot justify the 1Rlegulation by the United States of the The license fees were designed to a:sessment of one class oflicensee to pay for production and utilization of atomic rec ver a part of the costs of services
" services" which benefit another. The user energy and of the facilities used in attributable to identifiable recipients, 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) and related to a specific identifiable The final rule advanced by the Commission In the Energy Reorganization Act of 1974.
is so burdened to the extent that it (11 singles Congress declared that the promotional and beneficiary were used in the cost base 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 in 10 CFR Part 170 (49 FR 21293) despite the fact that good performers will be assure public health and safety."
continued to be excluded from fees.
subsidizing poor performers on whose behalf These Congressional findings and the NRC must frequently put forth statements of purpose strongly suggest that Some of the costs that were excluded the responsibilities of this agency are to be from the fee base were those associated extraordinary efforts.
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 development. (4) contested hearings. (5) fund or other appropriate machanism. for NRC services related to the Nuclear Waste any direct benefits to be conferred upon the Office ofInternational and State those whom we regulate. it seems clear that 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 Section 7001 of the Consolidated defense high level waste. lf the user fee representatives. has thus charged the NRC Omnibus Budget Reconciliation Act of
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concept is to be applied at all. it ought to be with regulating the nuclear industry to applied in a manner such that. insofar as promote safety and security. Yet the 1985 requires the NRC to establish by possible, all entitles which derive a " benefit" Commission is now required to implement rule an annual charge for its licensees 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.
percent of the estimated costs incurred however, there are elemental reasons for 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 authorizes NRC to expand it's fee base to have an undeniable philosophical and implementing regulations in fulfdtment of its 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 activities. This final rule reflects N,RC's fee principle must proceed from a single Exclusion -
,mterpretation of the intent of $cction premine: namely, that such fees be required The action required under this final
,ch are subi y rule is administrative and would not e
sw
,e yi 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 on other utilities which are the categorical exclusion 10 CFR 51.22(c)(1).
Regulatory Flexibility Act of 1980. 5 Therefore, neither an environmental U.S.C. 005(b). and NRC Size Standards
' beneficiaries" of similar Federal regulatory 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 Paperwork Reduction Act Statement services than do the coal-burning utihties ride affects only nuclear power plants upon whom the epa conferred the " benefit-This final rule contains no information licensed to operate. The companies that of requirements for scrt.bber installation to 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 the scope of the definition of"small than do the pharmaceutical houses regulated Paperwork Reduction Act of1930(41 entities" set forth in the Regulatory by the FDA. or than du a host of other U.S.C. 3501 et seq.).
Flesibility Act.
industries now subject to the regulatory 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 eh anes o "
license fee schedule in the fall of 1968.
Administrative practice and t e pr b
ic s provided by this agency: the prime as codified ir.10 CFR Part 170. The beneficiary is the pubhc at large whom we authority to collect fees was based on procedure. Environmental impact 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 an,ual fee assessed under this part:
and recordkeeping requirements.
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.
licensee believes justifies the Annual charges. Power plants and
" Operating license" means having a reactors. Penalty.
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 The first installment of the annual fee Atomic Energy Act of 1954, as amended, 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 fee, applicable to a power reactor with a ro: tow 3:
Commission has permanently revoked license to operate and calculated in
- 1. A new P.irl 171 is added to read as such authority.
I0lI"W8
.. Person" means:(1) Any individual.
accordance with { 171.15 of this part.
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 agency other than the Commission: any part, except as provided in i 171.17 of
- sec, 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 political subdivision of any such Congress. during the fiscal year, enacts 1] $eyP e 8
g vernment or Lation: or other entity!
an appropriation different from that 3
9nt 171.11 Esemption.
und (2) any legal cuccessor.
used in setting the fee, the annual fee 171.13. Notice.
representative, agent, or agency of the will be revised to reflect the actual 171.15 Annual Feci Power reactor operat' ng foregoing.
i licenses.
" Power reactor" means a nuclear amount appropriated by Congress for the fiscal year. Notice of this revision 171.17 Proration.
reactor designed to produce electrical or will be published in the Federal 171.19 Payment.
heat energy and licensed by the Register.
171 21 Refunds.
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 Except as specifically authorized by any time during the Federal Fiscal Year f 171.1 Purpose.
the Commission in writing. no (FY) in which the fee is due.
The regulations in this part set out the interpretation of the regulations in this (b) The basis for the annual fee shall annual fee charged to persons licensed part by an officer or employee of the be the sum of NRC costs budgeted for by the United States Nuclear Regulatory Commission, other than a written each FY for:(1) Research activities Commission to operate a power reactor interpretation by the General Counsel, as defined in this part, will be recognized as binding on the directly related to the regulation of Commission.
power reactors. (2) power reactor g 171.3 Scope, 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, addressed to the Executive Director of activities for power reactors (other than
{ 171.5 Definitions.
Operations. U.S. Nuclear Regulatory those activities directly associated with Commission. Washington, D.C., 20555.
plant-specific licensing and
" Budget" means the funds Communications may be delivered in amendments).
appropriated by Congress for the NRC for each fiscal year, and if that person to the Commission's offices at (c)If the basis for the annual fee is 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 170 dwided by No. of Operating Licenses that begins on October 1 of each 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 (c) Number of customers in rate base:
less than the total NRC budgeted costs which they end (e.g., fiscal year 1987 (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 amended (42 U.S.C. 2201): secs. 201. 202. as Ibsis for Annual Fee disided by No. of i 171.17 of this part. Any overpayment amended. 83 Stat.1242. as amended. 1244 (42 Operating Licenses for Power Reactors of $10.000 or less (per license) will be
. U.S.C. 5841. 5842).
equals Fee per License 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 02.1ot 105. 83 Stat. 853-854 as an:emled (42 I
n r en October 1,1986, is 0950m Therea fler.
US 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 due, the Commission may refuse to amended by 92 Stat. 3o36-3038 (42 U.S.C.
I 171.17 Proration.
process any application submitted by or 202 4 The annual fee for a power reactor on behalf of the person with respect to granted its license to opera te af ter 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.
1 51.22 Criterion for and identitication of s aspended, or for which the licensee has The annual fee will be collected requested amendment to permanently pursuant to the procedures of 10 CFR hcensing and regulatory actions eligible for categorical exclusion.
withdraw operating authority during the 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.
will be assessed in accordance with 10 (c) The following categories of actions 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 manner allowed under U.S. Department the United States Government, as 9,10.11.14.19,21,25,55.75.95.110.140 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.
^
517119. the full fee becomes due and annual fee shall be paid in quarterly payable, with interest, penalties and installments of 25 percent. A quarterly administrative costs of collection Dated at Washington. DC this 16th day of installment is due on October 1. january calculated from the date that quarterly September 1986.
- 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.
budget, the overpayment will be FIEGULATORY FUNCTIONS
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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!
.