ML20207G821

Recommends Commission Approval of Notice of Encl Interim Rulemaking for Collection of Required Fees Mandated by Congress

ML20207G821
Person / Time
Issue date:	08/02/1988
From:	Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO)
To:
References
FRN-53FR24077, TASK-RIA, TASK-SE AC95-2-10, AC95-2-11, AC95-2-12, SECY-88-225, NUDOCS 8808240250
Download: ML20207G821 (13)

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RULEMAKING ISSUE August 2, 1988 (Affirmation) secy-sa-22s For: The Comissioners Frem: Victor Stello, Jr.

Executive Director for Operations subject: INTERIM RULE FOR COLLECTION OF REQUIRED FEES MANDATED BY CONGRESS (PUBLIC LAW 100-203)

Purpose:

To obtain Comission approval of a notice of interim rulemaking relating to annual fees.

Cateuory: This paper covers a fee collection and budget inatter requiring the immediate attention of the Comission.

Issue: Timely collection of fees to satisfy the legislation approved by Congress for NRC to collect not less than 45 percent of its budget for FY 1988.

Background:

On June 16, 1988, the Connission approved publication r f a proposed rule which would revise the license /unnual 3 fee rules under 10 CFR Parts 170 and 171 (see SECY J 88-149). These proposed revisions (53 FR 24077 June 27, 1988) would implenent the Comission's policy on fees for standardization designs, increase the hcurly rate used in calculating fees, lift certain fee ceilings, ensure that those licensees who require the greatest level of services pay the greatest fees and raise fees so that fee collections wot.ld approxinate, but be not less than 45 percent of NRC's budget in fisc41 years 1988 and 1989.

The proposed rule provided for coments on a secono option. Under this second option, the NRC would not make changes to 10 CFR Parts 170 and 171 other than to increase the percentage specified in 10 CFR Part 171 from 33 percent to not less than 45 percent so that wheri fees collected under 10 CFR Part 171 are added to those collected under 10 CFR Part 170 they would approximate, but be not less than 45 per. cent of the NRC's budget..

The proposed rulemaking allowed a 30-day public coment period which closed July 27, 1980.

Contact:

Lee Hiller, ARM /FMC /

492-7351 g{

8800240250 000802 PDR SECY PNV BS-225

l Discussion: The governing statute requires that the NRC collect 45 percent of its budget in fees for FY 1988. To ensure 4 that the statutory mandate for collections in FY 1988 is met, invoices to reactor licensees need to be issued by August 15' 1988. Because the comment period for the proposed rulemaking did not expire until July 27, there is insufficient *.ime to properly consider all comments on the proposed rule and promulgate an effective final rule in time for invoices to be issueo by August 15. ,

Therefore,'because of the time constraints and the need

, for complying with the statutory mandate, the staff thinks that the second option presented in the June 27 notice of proposed rulemaking (i.e., changing the percentage specified in 10 CFR Part 171 frora 33 percent to not less than 45 percent) should be published as an interim rule. This interim rule would allow NRC to meet the statutory requirement for FY 1988 while later giving due consideration to all aspects of a final rule. In late August, the staff intends to recomend to the Conmission that the fee schedule for FY 1989 be based on the principles contained in the proposed rule l (Option 1).

Some comenters have indicated that the 45 percent  !

amount represents a ceiling and that refunds should be i made if that amount is exceeded. We disagree. The best reading of tne statute is that Congress intended collections to be not less than 45 percent of the PPC

, budget whicli would relieve the NRC of the administrative burden and loss of revenue to the U.S. Treasury by r making refunds. Some comenters were opposed to the

adoption ot Option 2 while others favored adoption. In view of the fact that the nuclear power industry opposed it, we propose not to adopt Option 2 for the long term.

However, as we have indicated, the time constroints

, necessary to fully consider all coments, publish a s final rule to be effective 30 days after publication, and send out additional 10 CFR Part 1711rvoices so that collections will be received prior to the end of the fiscal year, require the NRC to adopt Option 2 in the interim.

All licensees were advised in their April and July quarterly invoices under 10 CFR Part 171 that, based on

the new law, there would be an additional sum to be invoiced ir late FY 19P8 A copy of the interim rule is attached as on enclostre. This interim rule is to be '

effective 30 days after publication in the Federal Registel to meet the statutory fee collectiois j 1

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l requirement for FY 1988. Invoices would be issued to l licensees approximately August 15, 1988, after publication of the interim rule, with payment due imediately. In accordance witn current regulaticns, if the invoices are paid within 30 days from issuance, '

interest is waived for that period.  !

l Under the interim rule, the NRC would estimate the. fees '

to be collected by September 30, 1988, under i 10 CFR Parts 170 ud 171. These amounts would be.

subtracted from the $177 million required to. meet the (not less than).45 percent budget amount for FY 1988.  ;

The remaining sum would be divided by the 106 operating power reactors paying full annual fees, includinu a like percentage increase in the annual fees for the plants granted partial exemptions for FY 1983. Plants granted full exemptions are not affected. The amount for each reactor paying the full annual fee is expected to be '

< approximately $350,000 l i

Coordination: The Office of the General Counsel h .s reviewed the l interim rulemaking and has no legal objection. i Recomendation: That the Comission approve the enclosed interim rulemaking for inmediate publication in the '

Federal Register to be effective 30 days after

. publication.

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1 V ctor S lo r.

xecutive Director i for Operattuns

Enclosure:

Interim Rule on Revision of F<.e Schedule In order to publish th'.s rule in the Federal Register by 8/15/88, Commissioners' conmen'.s should be provided directly to SECY ASAP.

Affirmation will be scheduled as soon as cossible.

DISTRIBUTION:  !

i Commissioners .

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GPA j REGIONS I EDO l

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[7590-01).

NUCLEAR REGULATORY COMMISSICH t

i 10 CFR PART 171 Revision of Fee Schedule AGENCY: Nuclear Regulatory Commission y ACTION: Interim Rule.

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SUMMARY

The NRC is amending its regulations, on an interim basis, to rcvise the annual charges for licensed power reactors for Fiscal Year 1988 (FY88).

! The interim rule raises the ceiling on collection of annual fees to an amount  !

2 that will approximate, but not be less than 45 percent of the Commission's budget. The increase of 12 percent will be apportioned among the licensed power reactors in the same manner as under the current fee Sr.iedule .

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) regulations. This action is 6 2cessary to provide for the timely collection of fees as required by recently enacted legislation.

EFFECTIVE DATE: This rule is effective 30 days after publication, i

l FOR FURTHER INFORMATICN CONTACT: Lee Hiller, Assistant Controller, U.S. ]

Nuclear Regulatory Consission, llashington, DC 20555, telephone (301) 492-7351.

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SUPPLEMENTARY INFORMATION:

On June 27, 1988, the NRC published in the Federal Register (53 FR 24077) a proposed rule that would amend its regulations in 10 CFR Parts 170 ar.d 171 by changing the hourly rate under Part 170; removing ceilings on certain ,

collections under Part 170; charging for each routine and nonroutine inspection; raising the annual fee under Part 171 when necessary, based on the ,

principle that those licensees requiring the greatest expenditure of resources j should pay the greatest fee; including collections from the Department of ,

Energy Nuclear Waste Fund in agency collections; removing the application fee  ;

3 and deferring recovery of costs for standardized reactor designs; and removing j amendamnt application fees for reactors and reactor-related (topical) reports. l The bulk of these proposals are intended to help the NRC meet its statutorily I mandated requirement to recover not less than 45 percent of its budget for each l

of fiscal years 1988 and 1989 through fees and other collections authorized by i law. The increase in collections from 33 percent of the NRC's budget to not

! less than 45 percent is mandated by section 5601 of the Omnibus Budget Reconciliation Act of 1987 (OBRA - Pub. L. 100 203).

I j In its Federal Register notice on proposed amendments to 10 CFR Parts 170 and 171, the Cennission requested comments on a second option fer racovery of j not less then 45 percent of its bucget. Under that option, the Commission l i I would not amend 10 CFR Parts 170 and 171 other than to raise the annual fee I

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! ",nder 10 CFR Part 171 so that when added to fees collected under 10 CFR 1 Part 170, the Comission would collect not less than'45 percent of its budget ,

in FYLa. -

Several coments were received which addressed the option. They were 1

divided about equally between those in favor and those opposed. Generally the power reactor comunity was opposed to the second option on the grvund that it ,

increased the annu61 fee for power reactors without any commensurate sharing of f i

l the mancated increase in collections to 45 percent by other licensees and applicants. On the other hand, materials licensees favored the second option 1

for tne reason that it did not increase their burden. Two pcwer reactor l

3 licensees favored the second option, one of them as an interim neasure. The j bulk of the power reactor comunity, in opposing the second option, appeared to i be viewing it as a long term option and not as a stopgap measure to meet the  !

innediate statutory directive for collections for fiscal year 1988 In view of a the balance of the coments, the Comission will rot pursua the second option i

for fiscal year 1989 and beyond, but will proceed with amendments to both 10 CFR Farts 170 and 171. The coments do not, however, present a persuasive

! argument for not pioceeding with the second option for fiscal year 1988 collection's.

i Cenrenters also addressed the issue of refunds for overpaynent of annual '

fees under 10 CFR Part 171. The only corr.ments received were f rom the power reactor comunity and ar6 based upon reading the language in Section 5601 of

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OBRA as imposing a 45 percent ceiling on the collections in a fiscal year. In the view of the Commission, reading the 45 percent as a ceiling is contrary to the plain language and clear meaning of the statute wl'f:h requires that, "in no event shall such percentage be less than a total of 45 percent of such costs in each such - sr." Although the statute presents some problems of interpretath .iis is not one of them. The 45 percent is clearly a floor, not a ceilino. Accordingly, the provision for refunds is removed in this interim rule. It is the intentian of the Commission, however, that collections of fees for fiscal year 1988 should exceed 45 percent by only a trivial amount, if at all.

The NRC is under statutory mandate, which it cannot ignore, to collect approximately, but not less than 45 percent of its budget for FY88. Given the-time necessary to review all comments, to publish a final rule, and to send out additional invoices so that collections will be received prior to the end or 1

the fiscal year, the Conr.ission is publishing the second option as an interim l rule applicable to FYE3, effective 30 days af ter-publication. Because the Conmission has received ano considered public ccaments on the two aspects of 10 CFR Part 171 being changed by this inte-im final rule, there is no need to request further public comment. Accordingly, the rule is being published as a final ruie without a separate and independent comment period, i

The adjusted invoices based on this interim rule will be sent to licensees en approximately Ar. gust 15, 1988, after the rule is published in the Federal Register. These invoices will be due and payable upon issuance. In accordance with current regulations, interest on the invoices will be waived if the invoices are paid within 30 days of their issuance. Licensees were notified 1

with their April and July quarterly invoices under 10 CFR Part 171 that there wculd be an additional invoice, based on the new statute, in FY88. l l

It is expected that a final rule based on the propcsed revision of 10 CFR Parts 170 and 171 will be published to be effective for FY89.- Adoption of the second option for FY88 requires that 6171.15 be amended to reflect collections of not 'tess than 45 percent instead of the current 33 percent ceiling on total fee collections. This interim rule will be superseded by the final rule resulting from the proposed revision of 10 CFR Parts 170 and 171 published in the Federal Register on June 27, 1988, when it is finally published. That rule will apply to fees for FY89.

Based on current estimated collections under 10 CFR Dart 170 of

$41.3 million and anticipated total collections under 10 CFR Part 171 of

$99.5 million, the Conm1ssion must collect an additional $36.2 million in order to reach the collections cbjective of not less than 45 percent of its FY88 budget. Accordingly, the FY88 annual fee adjustment is $350,000 for each licenseo power reactor. The annual fees for those plents previous.y granted a

partial exemption for FY88 pursuant to $171.11 will be increased in a like manner using the percentage rate used for the exemptions. Those plants totally exempted from the annual fee for FY88 are unaffected by this amendment.

The NRC's reading of the 45 percent legislative statute (Section 5601 of the Omnibus Budget Reconciliation Act of 1987 - Public Law 100-203) is that 45 percent does not represent a ceiling. Congress intended collections to be not less than 45 percent of the NRC's budgets for FY88 and FY89. .Therefore, actual collections will approximate but be at least 45 percent of the Commission's budget. On this basis, the current refund provision of .

10 CFR 171.21 is no longer necessary and is being removed.

Environmental Impact: Categorical Exclusion 1

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The NRC has determined that this interim rule is the type of action 4 l

described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an l environmental impact statement nor an environmental assessment has been prepared for this final rule.

Paperwork Reduction Act Statement This interim rule contains no information collection requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et seq.),

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Regulatory Analysis Section 7601 of the Consolidated Omnibus Budget Reconciliation Act (COBRA) requirec the NRC, by rule, t) establish an annual charge for regulatory l services provided to its appiicants and licensees, that when added to other amounts collected, equaled up to 33 percent of Commission costs in providing  :

those services. Section 5601 of the Omnibus Budget Reconciliation A 2 of 1987 l i

requires that the NRC, for the fiscal years 1988 and 1989, increase the moneys collected pursuant to section 7601 and other authority to not less than 45 l

percent of the Commission's costs. In order to secomplish this. statutory 1 l

requirement, the NRC, as an interim neasure, is amending 10 CFR 171.15(c) and i 1

(d) by revising the figure 33 percent to a target of 45 percent. l I

'l This interim rule will not have significant impacts on state and local l i

governments and geographical regions; on health, safety, and the environment; j or, create substantial costs to licensees, the NRC, or other Federal agencies. l The foregoing discussion constitutes the regulatory analysis for this interim j i

rule.

Regulato,y Flexibility Certification As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 650(b),

the Commission certifies that this . ale does not have a significant economic l

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impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants. The companies that own dese j i

plants do not fall within the scope of the definition of "small entities" set  ;

I forth in the Reculatory Flexibility Act or the Small Business Size Standards j set out in regulations issued by the Small Business Administration 6t 13 CFR 121.

l Backfit Analysis l

l The NRC has determined that the backfit rule,10 CFR 50.109, does not l apply to this interim rule and, therefore, that a backfit analysis is not ree ved for this interim rule, because this amendment is mandated by 31 U.S.C. 9701 and section 7601, Consolidated Omnibus Budget Reconciliation Act '

of 1985 (Pub. L.99-272, 100 Stat. 146), as amended by section 5601, Omnibus Budget Reconciliation Act of 1987 (Pub. L. 100-203, 101 Stat. 1330). J l

I list of Subjects in 10 CFR Part 171 Annual charges, Nuclear power plants and reactors, Penalty.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR 171, i

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-PART 171 - ANNUAL FEE FOR POWER REACTOR OPERATING LICENSES

1. Tne authority citation for Part 171 is revised to read as follows:

Authority: Sec. 76')1, Pub. L.99-272, 1n0 Stat. 146, as amended by sec. 5601, Pub. L. 100-203, 101 Stat. 1330, sec. 301, Pub. L.92-314, 86 Stat. 222 (42 U.S.C. 2201(w)); sec. 201, 88 Stat.1242, as amended (42 U.S.C. 5841).

$171.15[ Amended]

2. In 5171.15', paragraph (e) is removed and paragraphs (c) and (d) are amended by revising the percentages specified as "33" and ".33," respectively, to read "45" and ".45."

$171.21[ Removed]

3. Section 171.21 is removed.

Dated at Rockville, Maryland this day of August 1988.

For the Nuclear Regulatory Commission.

Samuel J. Chilk, Secretary of the Commission.

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