ML20236W721
| ML20236W721 | |
| Person / Time | |
|---|---|
| Issue date: | 05/18/1998 |
| From: | Halman E NRC OFFICE OF ADMINISTRATION (ADM) |
| To: | Turdici J NRC OFFICE OF THE CONTROLLER |
| Shared Package | |
| ML20236V991 | List:
|
| References | |
| FRN-63FR31840, RULE-PR-140, RULE-PR-170, RULE-PR-171, RULE-PR-2 AF83-2-006, AF83-2-6, NUDOCS 9808060169 | |
| Download: ML20236W721 (30) | |
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~t NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555 4 001
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n . . . . . ,& May 18, 1998 MEMORANDUM TO: James Turdici, Director Division of Accounting and Finance Office of the Chief Financial Officer
. FROM: Edwara L. Halman, Dir Office of Administration
SUBJECT:
FINAL NOTICE OF RULEMAKING - 10 CFR P ARTS 170 AND 171 - 100 PERCENT FEE RECOVERY FOR FY 1998 In response to your May 15,1998, memorandum on the above subject, the Office of Administration (ADM) has reviewed and concurs in the draft final rule that will amend Parts 2,
'140,170 and 171, to establish new fee schedules for FY 1998. Attached is a marked copy that contains our requested changes.
Questions or comments concerning this review may be directed to David L. Meyer, Chief, Rules and Directives Branch, Division of Administrative Services, ADMiat 415-7162 (e-mail: DLM1).
Attachment:
As stated l
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v 4 L l 980806',169 990728 PDR PP.
2 63FR31840 PDR l
9008o4e/67 pole j
NRC for this rulemaking.
FOR FURTHER'INFORMATION CONTACT: Glenda Jackson, Office of the Chief Financial l
- Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Telephone 301-415-6057.
SUPPLEMENTARY INFORMATION:
- l. Background.
II. Responses to Comments.
Ill. Final Action.
IV. Section-by-Section Analysis V. Environmentalimpact: Categorical Exclusion.
1 j
(% VI. Paperwork Reduction Act Statement.
Vll. Regulatory Analysis.
Vill. Regulatory Flexibility Analysis.
IX. Backfit Analysis.
X. Small Business Regulatory Enforcement Faimess Act i
f I. Background Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990 (OBRA-90),
enacted November 5,1990, requi hat the NRC recover approximately 100 percent of its [
budget authority, less the amount appropriated from the Department of Energy (DOE) administered NWF, for FYs 1991 through 1995 by assessing fees. OBRA-90 was amended in O 1993 to extend the NRC's 100 percent fee recovery requirement through FY 1998.
2
In this final rule, FY 1998 annual fees have been adjusted downward by about 0.1 a
percent. This change is consistent with the NRC's intention stated in the FY 1995 final rule. The NRC indicated that, beginning in FY 1996, annual fees would be stabilized by adjusting the prior year annual fees by the percent change (plus or minus) in the NRC l
budget authority taking into consideration the estimated collections from 10 CFR Part 170 fees and the number of licensees paying fees;
_Md
! 2. Revise the two professional hourly rates in 9170.20 Y' e used to determine the 10 l
CFR Part 170 fees assessed by the NRC. The rate for FY 1998 for the reactor program l
is $124 per hour and the rate for the materials program is $121 per hour,
- 3. Adjust the current licensing and inspection fees in $$ 170.21 and 170.31 for applicants i O
! and licensees to refisct the changes in the revised hocrly rates.
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- 4. Revise $170.12(q) to include full cost recovery for resident inspectors and to recover costs incurred up to approximately 30 days after issuance of the inspection report.
l 5. Implement a procedural change to assess fees render 99170.21 and 170.31 for activities, such as application reviews and inspections, performed during compensated overtime. The compensated overtime hours will be billed at the normal hourly rate.
II. Responses to Comments f
The NRC received four comments on its proposed rule. Although the comment period ended
/n k on May 1,1998, the NRC has reviewed and evaluated all comments received.
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For evaluation purposes, comments similar in nature have been grouped, as appropriate, and addressed as single issues in this final rule.
- The comments are as follows:
A. Relationship Between Costs and Annual Fees.
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.1. Comment. Two commenters stated ttiat the basis for the increase in the J /
annual fees was not explained in the proposed rule. These commenters indicate that NRC has /
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not followed the Congressional directive in the Conference Report on the Omnibus Budget Reconciliation Act of 1990 (OBRA-90) that the annual charges, 'to the maximum extent ;
I L . practical, reasonably reflects the cost of providing services to such licensees or classes of licensees." One of these commenters, the Nuclear Energy InstMute (NEl), indicated that the general descriptions of the activities comprising the basis for the annual fee do not provide to c.w64 i
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sufficient informatiogthe pub!ic to peaningfullyjcomment on this aspect of the proposed rule, and went on to argue that the NRC's obligation to examine its activities and their
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L associated costs annually pursuant to OBRA-90 cannot be satisfied by merely adjusting the FY 7, f ;, m 1995 baseline determinations. Both of these commenters indicated that the NRC should not # '
cmmaa ?
proceed with the rule as proposed and should provide a clear explanation of the relationship
.g between services provided and the proposed annual fee. One commenter stated that the
}' 9 description and level of justification should be no less than that employed prior to 1995. NEl ** "M (3.m (#
also stated that NRC did not provide any information to enable an evaluation of the basis for the M3 judgement that neither of the two tests for reexamining the basis for the annual fees (e.g., a substantial change in the NRC's budget or in the magnitude of a specific budget allocation to a
\ class of licensees) had been met.
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s Response. The NRC believes that it has provided sufficient information to allow public evaluation and comment on the proposed fees. The proposed fee rule contained specific explanations for the changes to the annual fees, including tables showing the calculation of the percentage change to the annual fees. In addition, as stated in the proposed rule, the workpapers supporting the proposed fee rule changes are available for public examination in
. the NRC Public Document Room at 2120 L Street, NW (Lower Level), Washington, DC 20555.
Moreover, a detailed explanation of NRC's budget is set forth in NUREG-1100, Volume 13, budget Estimates Fiscal Year 1998 published in February 1997. NRC staff during the comment 0
period also responded to telephon equests for additional explanation of the proposed rule. /X Contrary to commenters' inference, OBRA-90 does not require NRC to rebaseline annual fees every year. The statute states that "[t]o the maximum extent practicable, the charges shall have a reasonable relationship to the cost of providing regulatory services and may be based on the allocation of the Commission's resources among licensees or classes of licensees."
The conference Report on the statute makes clear that Congress recognized that the allocation of fees would diverge from the allocation of resources in the budget. The conferees further
" recognize [d] that there are expenses that cannot be attributed either to an individual licensee or a class of licensees." House Conference Report 101-954, p. 962.
In promulgating the FY 1995 fee rule, the NRC solicited comments on a proposal to establish the annual fees for FY 1996 through FY 1998, and FY 1999 if OBRA-90 is extended, based on the percentage decrease or increase in the NRC's total budget, unless there was a substantial I change in that total budget or in the magnitude of a specific budget allocation to a specific class f
( of licensees. The NRC indicated that the annual fees would also be adjusted to compensate 6
for changes in Part 170 fee collections and the number of licensees paying annual fees. The j
NRC concluded that this approach is " practicable" and fully consistent with its statutory mandate. Most commenters in FY 1995 agreed that this method represented a simplification and streamlining of the fee-setting procedures and was necessary to eliminate the large ,
1 fluctuations in annual fees that had occurred in the past and to provide for greater predictability h
E of fees. At that time, neither NEl nor any reactor licensee objected to the proposed method.
p Based on the comments received supporting the methodology, the NRC adopted the change, I' and the revised method was used to determine the FY 1996 and FY 1997 annual fees. The l
revised method was not challenged by commenters when it produced a reduction of about 6 5 K
percent in FY 1996, and in fact at the time NEl stated that it was " pleased that the annual fees - j 1 for licensees are being lowered by slightly over 6%. The Commission reaffirmed the legality of Qg its approach in its denial of an NEl petition seeking reconsideration of the final fee rule for fiscal I year 1997. Sag, October 1,1997, letter 1 rom John C. Hoyle, Secretary of the Commission, to -
i; Robert W. Bishop, Vice President and General Counsel, Nuclear Energy Institute.
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With regard to the question of whether the criteria established by NRC for rebaselining have j been met, the NRC specifically stated in the proposed rule that there has not been a substantial y change in the NRC budget nor in the magnitude of a specific budget allocation to a class of licensees. The FY 1998 budgeted amount to be recovered through NRC's fees is $7.5 million I less than in FY 1997. This is ciearly not a substantial change. Similarly, there have not been -
d major changes in the allocation of budgeted resources to specific classes of licensees, and a ?,
b comparison of the FY 1997 and FY 1998 budgets confirms this.
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This final rule adopts the methodology to streamline and stabilize FY 1998 annual fees by Q Q
adjusting these fees by the percentage change in NRC's total budget authority. The FY 1997 7
l
C fees have been used as base annual fees, and these fees have been adjusted for FY 1998 based on the percentage change in NRC's budget authority, taking into consideration the total number of licensees paying fees and estimated collections from 10 CFR Part 170 fees. The proposed FY 1998 annual fees were developed using an estimated number of days for .
proration of the FY 1998 annual fees for Zion Stations Units 1 and 2. As a result of this -
estimation, the FY 1998 proposed annual fees were based on the equivalent of 2.5 fewer power reactors paying annual fees in FY 1998 than in FY 1997, and the proposed FY 1998 annual fees increased by 0.1 percent compared to the actual (prior to rounding) FY 1997 annual fees. The final FY 1998 annual fees have been developed based on the Zion 1 and 2 certification dates for permanent cessation of operations and permanent removal of fuel from the reactor vessel, which occurred later in the fiscal year than anticipated when the proposed rule was developed, resulting in the equivalent of 2.3 fewer power reactors paying annual fees in FY 1998 than in FY 1997. The result is that the final FY 1998 annual fees decreased by about 0.1 percent compared to the FY 1997 actual (prior to rounding) annual fees.
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- 2. Comment. One commenter stated that the proposed rule does not reflect any Commission consideration of the specific services driving the cost increase. This commenter l el "'
( question (why the reactor annual fee was not reduced in light of the premature shutdown of ed-l four nuclear units in FY 1997. Another commenter state)$ that, with the shift from operating -
l b licensees to decommissioning activities, strong action to reduce overhead and central staff eA appears appropriate. This commenter also state at the 10 percent fewer power licensees ",
with much better average performance than in the past should yield reductions in total NRC fees.
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j Resoonse. Although the proposed reactor annual fee increased 8
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slightly, by 0.1 percent, from FY 1997, the total budget to be recovered through fees decreased by $7.5 million from FY 1997. In fact, the proposed rule reflected a decrease in the total amount to be recovered through annual fees of approximately $6.4 million compared to FY 1997, and the total proposed annual fees for the reactor class of licensees decreased by $7.4 million. The slight increase in the proposed annual fee to be assessed to each reactor licensee i
was not the result of increased costs or a lack of consideration of the specific services. Rather, the proposed change was primarily the result of the equivalent of 2.5 fewer reactors paying the l
annual fee compared to FY 1997. As explained in response to the above comment, this final rule reflects the equivalent of 2.3 fewer reactors paying the FY 1998 fees, and as a result the final FY 1998 annual fees decreased by 0.1 percent compared to the FY 1997 exact (prior to l rounding) annual fees.
I O B. Fees for Services that do not Benefit Licensees l
1 0
- 1. Comment. Commenters continue to urge NRC to take action to eliminate d b
l fees for services that do not benefit the licensees paying the annual fees. Commenters conclud that recovering the costs of these activities from reactor licensees violates the g-4 provision of OBRA-90 that the charges shall have a reasonable relationship to the cost of d
j providing regulatory services. One commenter argue) that assessing these non-reactor costs FF to reactor licensees exceeds the Congressional delegation of authority and is arbitrary and capricious, and therefore violates the Equal Protection requirements of the Due Process Clause c4 /l of the Fifth Amendment to the United States Constitution. One commenter suggesgthat the l NRC could conclude that recovering 88 percent of its budget authority by eliminating these !
costs from fee recovery is consistent with the requirement of OBRA-90 to recover "approximately" 100 percent of its budget authority from fees, or NRC could seek legislation to l
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q resolve the issue, as it has committed to de in the past, Response.
iL v As NRC has stated on many occasions, theqshares commenters )(
concems that licensees are paying for activities that do not directly benefit them. However, the m esweh NRC disagrees with commentegthat recovering these costs from licensees violates statutory "4 requirements. In fact, the Congressional guidelines provided in the Conference Report to the 100 percent fee recovery legislation specifically provide for the assessment of fees to licensees 1
to recover agency costs that may not provide direct benefits to them. The conferees recognized that " Congress must indicate clearly its intention to delegate to the Executive the discretionary authority to recover administrative costs not inuring directly to the benefit of regulated pariies" and that Congress must provide guidelines for making these assessments.
The conferees recognized that certain expenses cannot be attributed either to an individual or to classes of NRC licensees. The conferees intend that the NRC fairly and equitably recover these openses from its licensees through the annual charge even though these expenses cannot be attributed to individual licensees or classes of licensees. These expenses may be recosered from the licensees as the Commission, in its discretion, determines can fairiy, equitably, and practicably contribute to their payment. 136 Cong Rec. at H1269 Based X on these explicit guidelines, the NRC ccncludes that the assessment of fees to recover these costs from licensees is neither arbritary nor capricious, and does not violate any statute.
Nevertheless, the NRC continues to take action to minimize the impacts of recovering the costs of these activities from licensees. Although legislation recommended in NRC's February 23, 1994, Report to Cor,gress to address these concems has not been enacted, the NRC has taken several steps to mitigate the inequities within the constraints of existing law. For example, the f Lw t Commission successfully obtained appropriation legislation which emoved from the fee base <e 10
certain costs incurred as a result of regulatory reviews and other assistance provided to the Department of Energy and other Federal agencies. In addition, when authorized by law, the NRC has made a concerted effort to obtain reimbursements for services provided to other W '
Federal agencies. The NRC has not submitted proposed legislation would take out of the mt fee base the costs of services do not provide direct benefits to licensees because the V K
Office of Management and Budget has advised that such legislation would be inconsistent with the President's budget. The Commission is currently considering ways to address this issue.
The NRC disagrees that eliminating these costs from fee recovery, thereby recovering 88 percent of the budget, would meet the OBRA-90 requirement that NRC recover approximately 100 percent of its budget authority through fees. As the NRC stated in the statement of !
considerations accompanying the FY 1991 final rule (56 FR 31474), it interprets the words "approximately 100 percent" as meaning that the Commission should promulgate a rule that identifies and allocates as close to 100 percent of its budget authority to the various classes of licensees as is practical. The Commission concluded that, based on the Conference Report guidelines, it was Congress' intent that the Commission allocate 100 percent of this budget authority for fee assessment, and the term "approximately 100%" refers only to the inherent uncertainties in estimating and collecting the fees. Furthermore, in NRC's annual appropriations acts, the Congress presumes that tho NRC fee collections will approximate 100 l
percent, not 88 percent, of its budget authority. See e.g. Title IV of the Energy and Water Development Appropriations Act,1998, P.L.105-62.
The Conference Report guidance also provides that the costs be ' recovered from such licensees as the Commission in its discretion determines can fairly, equitably and practicably contribute to their payment.' in promulgating the FY 1991 final rule, the NRC stated in regard 11 1
q l
1 to the surcharge costs to be assessed to reactor heensees in FY 1991, thtt the Commission I
has determined that operating power reactor licensees can more equitably and practicably pay )
these costs than other NRC licensees, and since the overwhelming portion of the Commission's budget is devoted to the regulation of power reactors, it is just that they pay for all but a small portion of the Commission's budget (56 FR 31476).
l C. Part 170 Fees l 1. Comment Commenters indicate that NRC should increase the percentage of vX
' ^ ed costs recovered through Part 170 fees. One commenter claimgthat there is no exemption
' pc l authority from the provision that "any person who receives a service or thing of value from the l
Commission shall pay fees to cover the Commission's costs in providing any such service or thing of value." One commenter stated that ".... 79 percent of the fees proposed to be collected
- l. from NRC licensees are for non-discrete services. This approach makes it too easy to shift
!- personnel from providing discrete services to working on generic issues, thereby increasing -
overhead costs as actual services provided to individual licensees decline, rather than make the
! cl hard decisions of what activities are really necessary." Another commenter concludej that 0 A NRC has not adequately allocated costs to the beneficiaries of the services. Commenters
' . d support the reduced hourly rate and NRC's proposed full-cost provision for resident inspectors; "b
A however,one commenter indicated time for resident inspectors assigned to special inspections - X l
at other plants should be charged to those specific inspections. One commenter supported the NRC's proposed long-term policy to progress bill for all inspections.
)
Response. The NRC previously responded to commenters' claim that there is no l 12 j
The NRC has already taken steps to evaluate other areas for potential cost recovery under Part 170, with the intention of including the recommer ded activities in the FY 1999 proposed fee rule for public :omment.
D. Annual Fees for Certifiemtas of Comoliance issued to the United States Enrichment Corporation.
I
- 1. Comment. The United States Enrichment Corporation (USEC) requested that -
a single annual fee be assessed for the two Gaseous Diffusion Plants (GP perated by vx USEC and the fee should be reduced to a value commensurate with the proposed fee for the i
low-enriched uranium fuel fabrication faci:ities. USEC submitted detailed information to support its request. USEC stated that its comments not only address its belief that the proposed rule is j not fair and equitable, but also serve as a request for reconsideration of the NRC's March 23, l
1 l 1998, denial of USEC's request for an exemption from the annual fees.
l Response. NRC rejected similar arguments from USEC in the FY 1997 final rule (62 l {
! FR 29197), and in its March 23,1998, denial of USEC's annual fee exemption reouest. The NRC continues to believe for the reasons stated in these documents that the USEC must pay a full annual fee for each of its enrichment facilities and that its facilities have been placed in the l WJLC'! a-% ed d'4E's
/N appropriate fee category. Insofar as its' letter requestga reconsideration of March 23,1998, denial of USEC's annual fee exemption request, the NRC will reepond to that request separately.
Ill. Final Action v
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1998. Those materials licensees whose license anniversary date falls on or after the effective date of the FY 1998 final rule will be billed at the FY 1998 revised rates during the anniversary month of the license and payment will be due on the date of the invoice.
i As announced in the proposed rule, the NRC will no longer mail the final rule to all licenseos. In addition to publication in the Federal Register, the final rule is available on the internet at http://ruleforum.llni. gov /.
Copies of the final rule will be mailed upon request. To obtain a copy of the final rule, contact the License Fee and Accounts Receivable Branch, Division of Accounting and Finance, Office of the Chief Financial Officer, at 301-415-7554. As a matter of courtesy, the NRC plans y_as.s ywry 2 to continue'to send the proposed rule to all licensees.
(9CiiGlajohor!LahGu2~.! hQ The NRC also announ in the proposed rule that it plans to reexam tdurrent phq 4 h ylme Caett.hh kn beuy . who hue u* " t * $ -
annualfed =m;S-r FR,, fgiIp' enseesydecommission or possession only I " '"
s (% pnpaad we shM/): n,c ,
+
licenses,ansMbeFannual fee p5Ficy for reactors' storage of spent fuel. Any changes to the "l current fee policiheill be included in the FY 1999 fee rulemaking. One purpose of the study is
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c to assure consistent fee treatment for both wet storage (i.e., spent fuel pool) and dry storage
- 2 i j (i.e., independent spent fuel storage installations, or ISFSis) of spent fuel. The Commission I U
L has previously determined that both storage options are considered safe and acceptable fomis 4m %;Id;<< ora sr. u of storage for spent fuel. Under current fee regulations, Part 50 licensees 4rrhecommissioninged ana v who store spent fuel in the spent fuel pool are not assessed an annual fee, but licensees who store spent fuel in an ISFSI under Part 72 are assessed an annual fee. The NRC will review .
this policy as part of the overall study of the issues related to annual fees for licensee i decommission 18
.. I
1 B. Amendments to 10 CFR Part 171: Annual Fees for Reactor Ooeratina Licenses. and Fuel Cvele Licenses and Materials Licenses. Includina Holders of Certificates of Comoliance.
Registrations. and Quality Assurance Proaram Anorovals and Govemment Aaencies Licensed byNRC.
Four amendments have been made to 10 CFR Part 171.
l First, the NRC is amending $171.13 to delete specific fiscal year references.
Second, ths NRC is amending 55171.15 and 171.16 to revise the annual fees for FY 1998 to recover approximately 100 percent of the FY 1998 budget authority, less fees collected under 10 CFR Part 170 and funds appropriated from the NWF and the General Fund. In the FY s
1995 final rule, the NRC stated that it would stabilize annual fees as follows. Beginning in FY 1996, the NRC would adjust the annual fees only by the percentage change (plus or minus) in NRC s total budget authority unless there was a substantial change in the total NRC budget authority or the magnitude of the budget allocated to a specific class of licensees. If either case r '/
(d4 _dL5cv_5 sed bs fu FT ICf 6 fu'A f ul9 # E occurred, the annual fee base would be recalculated)60 FR 32225; June 20,1995). NRC N _YI also indicated that the percentage chenge would be adjusted based on changes in 10 CFR Part l
170 fees and other adjustments as well as on the number of licensees paying the fees.
In the FY 1996 final rule, the NRC stabilized the annual faes by establishing the annual fees for all licensees at a level of 6.5 percent below the FY 1995 annual fees. For FY 1997, the NRC followed the same method as used in FY 1996. Because the amount to be recovered through fees for FY 1997 was identical to the amount to be recovered in FY 1996, establishing new baseline fees was not warranted for FY 1997. Based on a change in the distribution 23
/
'These adjustments are necessary to ensure that the " billed" amount results in the required collections. Positive amounts indicate amounts billed that will not be collected in FY 1998.
Third, Footnote 1 of 10 CFR 171.16(d)is amended to provide for a waiver of annual fees for FY 1998 for those materials licensees, and holders of certificates, registrations, and approvalsj who either filed for termination of their licenses or approvals or filed for possession V7 only/ storage licenses before October 1,1997, and permanently ceased licensed activities i
entirely by September 30,1997. All other licensees and approval holders who held a license or approval on October 1,1997, are subject to FY 1998 annual fees. This change is being made in recognition of the fact that since the final FY 1997 rule was published in May 1997, some licensees have filed requests for termination of their licenses or certificates with the NRC.
w erAsn,J Other licensees have either or written to the NRC since the FY 1997 final rule became /X effective requesting further clarification and information concerning the annual fees assessed.
The NRC is responding to these repssts as quickly as possible. However, the NRC was unable to respond and take action on all requests before the end of Y scalfea y September 30,1997. Similar situations existed after the FY 1991-1996 rules were published, and in those cases, the NRC provided an exemption from the requirement that the annual fee is waived only when a license is terminated before October 1 of each fiscal year.
Fourth, $171.19 is amended to update fiscal year references and to credit the partial i
payments made by certain licensees in FY 1998 either toward their total annual fee to be assessed or to make refunds, if necessary. Section 171.19(a) is also amended to provide credit cards as an additional method of payment, and to provide additional information on electronic payments. Credit card payments will be accepted for small dollar payments.
x Electronic payments may be made by Fedwire (a funds transfer system operated by the 26
The language in this section is revised to d3lete specific fiscal year references.
Section 171.15 Annual Fee: Reactor Operating Licenses.
The annual fees in this section are revised as described below.
Paragraphs (b), (c) (1), (c)(2), (e) and (f) are revised to comply with the requirement of OBRA-90 that the NRC recover approximately 100 percent of its budget for FY 1998.
Paragraph (b) is revised in its entirety to establish the FY 1998 annual fee for operating power reactors and to change fiscal year references from FY 1997 to FY 1998. The fees are established by decreasing the FY 1997 annual fees (prior to rounding) by 0.1 percent. In the FY 1995 final rule, the NRC stated it would stabilize annual fees by adjusting the annual fees i'
only by the percentage change (plus or minus) in NRC's total budget authority and adjustments based on changes in 10 CFR Part 170 fees as well as in the number of licensees paying the fees. The activities comprising the base FY 1995 annual fee and the FY 1995 additional charge l (surcharge) are listed in paragraphs (b) and (c) for convenience purposes.
. f.-
glitenses -9 an > ,
Each' operating power reactor will pay an annual fee of $2,976,000 in FY 1998.
l l
l
! Paragraph (e) is revised to show the amount of the FY 1998 annual fee for nonpower (test and research) reactors. The 1998 annual fee of $57,300 is the same as the FY 1997 annual fee. The NRC will continue to grant exemptions from the annual fee to Federally-owned and State-owned research and test reactors that meet the exemption criteria specifed in
$171.11(a)(2).
34
)
Paragraph (f) is revised to delete specific fiscal year dato references.
Section 171.16 Annual fees: Materials Licensees, Holders of Certificates of Compliance, Holders of Sealed Source and Device Registrations, Ho!ders of Quality Assurance Program Approvals, and Govemment agencies licensed by the NRC.
Section 171.16(c) covers the fees asessed for those licensees that can qualify as small entities under NRC size standards. A materials iicensee may pay a reduced annual fee if the licensee qualifies as a small entity under the NRC's size standards and certif3that it is a small j y, ty.pleNg uci een~9 entity, C Form 52 NRC will continue to assess two fees for licensees that qualify as small entities under the NRC's size standards. In general, licensees with gross annual receipts of $350,000 to $5 million pay a maximum annual fee of $1,800. A second or lower-tier small entity fee of $400 is in place for small entities with gross annual receipts of less than
$350,000 and small govemmental jurisdictions with a population of less than 20,000. No change in the amount of the small entity fees is being made because the small entity fees are
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not based on budgeted costs but are established at a level to reduce the impact of fees on smalf entities. The small entity fees are shown in the final rule for convenience.
}
l Section 171.16(d) is revised to establish the FY 1998 annual fees for materials l licensees, including Govemment agencies, licensed by the NRC. The annual fees were determined by decreasing the FY 1997 annual fees (prior to rounding) by 0.1 percent. After rounding, many of the FY 1998 annual fees for materials licensees are the same as the FY 1997 annual fees.
The amount or range of the FY 1998 annual fees for materials licenses is summarized 35
(6) The NRC's fees were not arbitrary or capricious.
With respect to 10 CFR Part 171, on November 5,1990, the Congress passed Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990 (OBRA-90) equired thetL for FYs 1991 through 1995, approximately 100 percent of the NRC budget authority be recovered through the assessment of fees. OBRA-90 was amended in 1993 to extend the 100 l percent fee recovery requirement for NRC through FY 1998. To accomplish this statutory requirement, the NRC, in accordance with $171.13, is publishing the final amount of the FY 1999 annual fees for operating reactor licensees, fuel cycle licensees, materials licensees, and holders of Certificates of Compliance, registrations of sealed source and devices and QA 4
program approvals, and Govemment agencies. OBRA-90 and the Conference Committee Report specifically state that-b lV (1) The annual fees be based on the Commission's FY 1998 budget of $472.8 million i
less the amounts collected from Part 170 fees and the funds directly appropriated from the NWF to cover the NRC's high level waste program and the general fund related to commercial
, vitrification of waste at the Department of Energy Hanford, Washington site, and the pilct program pertaining to external regulation of the Department of Energy; l
l l (2) The annual fees shall, to the maximum extent practicable, have a reasonable relationship to the cost of regulatory services provided by the Commission; and (3) The annual fees be assessed to those licensees the Commission, in its discretion, determines can fairly, equitably, and practicably contribute to their payment.
42 l
183,189,68 Stat. 936,937,938,954,955, as amended (42 U.S.C. 2132,2133,2134,2135, 2233,2239). Section 2.105 also issued under Pub. L.97-415,96 Stat. 2073 (42 U.S.C. 2239).
t Sections 2.200-2.206 also issued under secs. 161 b, i, o,182,186, 234, 68 Stat. 948-951, 955, 83, Stat. 444, as amended (42 U.S.C. 2201 (b), (i), (o),2236,2282); sec. 206, 88 Stat.1246 (42 U.S.C. 5846). Section 2.205(j) also issued under Pub. L. 101-410,104 Stat. 890, as amended by section 31001(s), Pub. L.104-134,110 Stat.1321-373 (28 U.S.C. 2461 note).
Sections 2.600-2.606 also issued under sec.102, Pub. L.91-190, 83 Stat. 853, as amended I
(42 U.S.C. 4332). Sections 2.700s,2.719 also issued under 5 U.S.C. 554. Sections 2.754, l 2.760,2.770,2.780 also issued under 5 U.S.C. 557. Section 2.764 also issued under secs. 135,141, Pub. L.97-425,96 Stat. 2232,2241 (42 U.S.C.'10155,10161). Section 2.790 also f issued under sec.103,68 Stat. 936, as amended (42 U.S.C. 2133) and 5 U.S.C. 552. Sections
. 2.800 and 2.808 also issued under 5 U.S.C. 553. Section 2.809 also issued under 5 U.S.C.
l 553 and sec. 29, Pub. L.85-256,71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also issued under sec.189,68 Stat. 955 (42 U.S.C. 2239); sec.134, Pub. L.97-425,96 Stat.
2230 (42 U.S.C.10154). Subpart L also issued under see.189,68 Stat. 955 (42 U.S.C. 2239).
,. Appendix A also issued under sec. 6, Pub. L.91-560, 84 Stat.1473 (42 U.S.C. 2135).
! ,- . . _--- - ~ . . -
f [ Appendix B also issued under sec. 10, Pub. L.99-240, 99 Stat.1842 (42 U.S.C. 2021b et-
}'
\
(. - ~ ~ ~ '
~#
! 2. In 92.205, paragraph (i) is revised to read as follows:
$2.205 Civil penalties 46 c ___- - -_
O schedule:
U (i) For indemnification from $500 million to $400 million inclusive, a fee of $30 per year per thousand kilowatts of thermal capacity authorized in the license; (ii) For indemnification from $399 million to $300 million inclusive, a fee of $24 per year
/
per thousand kilowatts of thermal capacity authorized in the license)*
/
l (iii) For indemnification from $299 million to $200 million inclusive, a fee of $18 per year per thousand kilowatts of thermal capacity authorized in the license; (iv) For indemnification from $199 million to $100 million inclusive, a fee of $12 per year per thousand kilowatts of thermal capacity authorized in the license; on h k -
l (v) For indemnification from $99 million to $1 million inclusive, a fee of $6 per year per thousand kilowatts of thermal capacity authorized in the license.
- ,k.
, (2) No fee will be less than $100 per annum for any nuclear reactor. This fee is@for - -
the period beginning with the date on which the applicable indemnity agreement is effective.
The various levels of indemnity fees are set forth in the schedule in this paragraph. The
, amount of indemnification for determining indemnity fees will be computed by subtracting from the statutory limit of liability the amount of financial protection required of the licensee. In the case of licensees subject to the provision of $140.11(a)(4), this total amount will be the amount, as determined by the Commission, of the financial protection available to licensees at the close of the calendar year preceding the one in which the fee becomes due. For those instances in 48
m which a certified financial statement is provided as a guarantee of payment of deferred premiums in accordance with $140.21(e), a fee of $1,000 or the indemnity fee, whichever is greater, is required.
l 1
(c) Each person licensed to possess and use plutonium in a plutonium processing and feel fabrication plant shall pay to the Commission a fee of $5,000 per year for indemnification.
/
This fee is hfor the period beginning with the date on which the applicable indemnity
? agreement is effective.
l l (d) Indemnity fee payments, made payable to the U.S. Nuclear Regulatory Commission, are to be made in U.S. funds by check, draft, money order, credit card, or I
electronic funds transfer such as ACH (Automated Clearing House) using EDI (Electronic Data Interchange). Federal agencies may also make payments by the On-Line Payment and i Collections System (OPAC's). Where specific payment instructions are provided on the l invoices, payment should be made accordingly, e.g. invoices of $5,000 or more should be paid via ACH through NRC's Lockbox Bank at the address indicated on the invoice. Credit card i
payments should be made up to the limit established by the credit card bank, in accordance with specific instructions provided with the invoices, to the Lockbox Bank designated for credit card payments.
PART 170 - FEES FOR FACILITIES, MATERIALS, IMPORT AND EXPORT LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT OF 1954, AS AMENDED i
- 5. The authority citation for Part 170 continues to read as follows:
l 49 l
i I
~P N x Authority 31 U.S.C. 9701,kStat._105_1 sec. 301, Pub. L.92-314,86 Stat. 222 (42
~ . _ _
U.S.C. 2201w); sec. 201,'Eub..L. 93-43kB8 Stat.1242, as amended (42 U.S.C. 5841); sec. 205, Pub. L.101-576,104 Stat. 2842, (31 U.S.C. 901).
- 6. In Section 170.12, paragraphs (g) and (h) are revised to read as follows:
6170.12 Pavment of fees.
l (g) Jnsoerfinn fee _s. (1) Inspection fees will t 4 assessed to recover full cost for each resident inspector assigned to a specifc plant or facility. The fees will be assessed for all of the
( resident inspector's time, excluding leave, except that time spent by the resident inspector in support of activities at another site will not be billed to the site to which the resident inspector is assigned. The hours will be billed at the appropriate hourly rate established in 10 CFR 170.20. J (2) Fees for all inspections subject to full cost recovery will be assessed on a per inspection basis for costs incurred up to approximately 30 days after issuance of the inspection report. Inspection costs include preparation time, time on site, documentation time, and follow-up activities and any associated contractual service costs, but exclude the time involved in the l
l processing and issuance of a notice of violation or civil penalty. l s (3) Fees for resident inspectors' time and for specific inspections subject to full cost recovery will be billed on a quarterly basis and are payable upon notification by the 50 J l
Commission.
/
(h)_Mathnel of navment. Alllicense fee payments, made payable to the U.S. Nuclear Regulatory Commission, are to be made in U.S. funds by check, draft, money order, credit ca 1, or electronic funds transfer such as ACH (Automated Clearing House) using EDI
- (Electronic Data Interchange). Payment of invoices of $5,000 or more should be paid via ACH t
through NRC's Lockbox Bank at the address indicated on the invoice. Credit card payments should be made up to the limit established by the credit card bank at the address indicated en the invoice. Applicants and licensees should contact the License Fee and Accounts Receivable Branch at 301-415-7554 to obtain specific written instructions for making electronic payments and credit card paymento.
l .....
- 7. Section 170.20 is revised to read as follows:
6170 20 Averaae cost oer professional staff-hour.
Fees for permits, licenses, amendments, renewals, special projects, Part 55 I requalification and replacement examinations and tests, other required reviews, approvals, and
(
inspections under $$170.21 and 170.31 that are based upon the full costs for the review or inspection will be calculated using the following applicable professional staff-hour rates:
Reactor Program $124 per hour
($170.21 Activities) 51 L
fT Nuclear Materials and 5121 per hour !
Nuclear Waste Program
($170.31 Activities)
I
- 8. In $170.21, the introductory text, Category K, and footnotes 1 and 2 to the table are
{
i revised to read as follows: l i
l 6170.21 Schedule of fees for oroduction and utilization facilities. review of standard referenced desian aoorovals. soecial orojects. inspections and imoort and exoort licenses.
4 Applicants for construction permits, manufacturing licenses, operating licenses, import n
and export licenses, approvals of facility standard reference designs, requalification and replacement examinations for reactor operators, and special projects and holders of construction permits, licenses, and other approvals shall pay fees for the following categories of services.
SCHEDULE OF FACILITY FEES l
(See footnotes at end of table)
Facility Categories and Type of Fees Fees { ,
y l h i
i K. Import and export licenses:
Lj 52
_~
(b) in response to an NRC. request (at the Associate Office Director d
level or above) to resolve an identified safety, safeguards, or environmental l issue, or to assist NRC in developing a rule, regulatory guide, policy statement, generic letter, or bulletin; or (c) As a means of exchanging information between industry organizations and the NRC for the purpose of supporting generic regulatory improvements or efforts.
PART 171 - ANNUAL FEES FOR REACTOR OPERATING LICENSES AND FUEL CYCLE LICENSES AND MATERIALS LICENSES, INCLUDING HOLDERS OF CERTIFICATES OF COMPLIANCE, REGISTRATIONS, ANO QUALITY ASSURANCE PROGRAM APPROVALS AND GOVERNMENT AGENCIES LICENSED BY, RC. V '
- 10. The authority citation for Part 171 continues to read as follows:
Authority: Sec. 7601, Pub. L.99-272,100 Stat.146, as amended by sec. 5601, Pub. L.100-203,101 Stat.1330, as amended by[ec. 3201, Pub. L.101- /
239,103 Stat. 2106 as amended by sec. 6101, Pub. L.101-508,104 Stat.1388, (42 U.S.C. 2213); sec. 301, Pub. L.92-314, 86 Stat. 222 (42 U.S.C. 2201(w));
sec. 201,88 Stat.1242, as amended (42 U.S.C. 5841); sec. 2903, Pub. L.102-486,106 Stat. 3125, (42 U.S.C. 2214 note).
O v 11. Section 171.13 is revised to read as follows:
79 L________--__---_----__------.-___-----------------------. - _ . - - - - - - - - - - - - - - - _ - - - - - - - - - - - - - - - - - - - - - - - - - - -
n 6171.13 Notice.
The annual fees applicable to an operating reactor and to a materials licensee, including a Govemment agency licensed by the NRC, subject to this part and calculated in accordance with 99171.15 and 171.16, will be published as a notice in the F DERAL R GISTER as soon as is practicable but no later v' / ;
than the third quarter of the fiscal year. The annual fees will become due and payable to the NRC in accordance with $171.19 except as provided in $171.17.
Quarterly payments of the annual fees of $100,000 or more will continue during the fiscal year and be based on the applicable annual fees as shown in $$171.15 l and 171.16 of the regulations until a notice conceming the revised amount of the h fees for the fiscal year is published by the NRC. If the NRC is unable to publish a final fee rule that becomes effective during the current fiscal year, then fees i f
would be assessed based on the rates in effect for the previous fiscal year. l l
- 12. In $171.15, paragraphs (b), (c) introductory text, (c)(1), (c)(2), (e),
and (f) are revised to read as follows:
i l
6171.15 Annual Fees: Reactor coeratina licenses.
l .....
(b) The FY 1998 annual fee for each operating power reactor which must be collected by September 30,1998, is $2,976,000. This fee has been determined by adjusting the FY 1997 annual fee, (prior to rounding) downward j 80
i
)
I l
!L171.16 Annual Fees: Matelialp Licensees. Holders of Certificates of A
Comoliance. Holders of Sealed Source and Device Registrations. Holders of i l
Quality Assurance Proaram Anorovals and Government Aaencies Licensed by the NRC (c) A licensee who is required to pay an annual fee under this section may qualify as a small entity. If a licensee qualifies as a small entity snd provides the Commission with the proper certification, the licensee may pay reduced annual fees for FY 1998 as follows:
A Small Businesses Not Enaagad Maximum AnnustEna in Manufacturing and Small Per Licensed Cateaorv Not-For-Profit Organizations (Gross Annual Receiots)
$350,000 to S5 million . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1.800
- Less than $350,000 ................................................. $400 Manufacturing entities that '
have an averaae of 500 gmolovees or less 35 to S00 employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,800 I Less than 35 employees . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $400 f Small Govemmental Jurisdictions l (including oubliciv sunoorted educationalinstitutions) l (Pooulation) 20,000 to 50,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $1,800 i
Less than 20,000 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $400
' i 83
registration, or approval of a QA program will be sent a bill for the full amount of the annual fee U on the anniversary date of the license. Payment is due on the invoice date and interest accrues from the date of the invoice. However, interest will be waived if payment is received within 30 days from the invoice date.
(c) Annual fees in the amount of $100,000 or more and described in the Federal Register notice pursuant to $171.13 must be paid in quarterly installments of 25 percent as i
billed by the NRC. The quarters begin on October 1, January 1, April 1, and July 1 of each
)
fiscal year.
1 (d) Annualfees ofless than $100,000 must be paid as billed by the NRC. As established in FY 1996, materials license annual fees that are less than $100,000 are billed on the anniversary date of the license. The materials licensees that are billed on the anniversary date of the license are those covered by fee categories 1.C. and 1.D.; 2.A.(2) through 2.C.; 3.A. q through 3.P.; 4.B. through 9.D.; and 10.B. For annual fee purposes, the anniversary date of the license is considered to be the first day of the month in which the original license was issued by the NRC. Beginning June 11,1996, the effective date of the FY 1996 final rule, licensees that are billed on the license anniversary date will be assessed the annual .'Je in effect on the
- anniversary date of the license. Materials licenses subject to the annual fee that are terminated I during the fiscal year but prior to the anniversary month of the license will be billed upon l termination for the fee in effect at the time of the billing. New materials licenses subject to the I
annual fee will be billed in the month the license is issued or in the next available monthly billing for the fee in effect on the anniversary date of the license. Thereafter, annual fees for new
! licenses will be assessed in the anniversary month of the license. q I
l h Dated at Rockville, Maryland, this day of .1998. /
For the Nuclear Regulatory Commission.
Jesse L. Funches, Chief Financial Officer.
O 102
entity fee and the payment copy of the invoice, should be mailed to the U.S. Nuclear Regulatory Commission, License Fee and Accounts Receivable Branch, to the address indicated on the invoice for such payments.
1 NRC Definition of Small Entity The NRC, in consultation with the Small Business Administration, has defined a small entity for purposes of compliance with its regulations. The definition is codified in NRC's A
l regulations at 10 CFR 2.810. Under the NRC regulation, a small entity is:
Jg A
l 1. Small business - a for-profit concem that provides a service or a concem not engaged in manufacturing with average gross receipts of $5 million or less over its last 3 completed fiscal years;
- 2. Manufacturing industry - a manufacturing concern with an average number of 500 or fewer employees based upon employment during each i pay period for the preceding 12 calendar months;
- 3. Small organization - a not-for-profit organization which is independently owned and operated and has annual gross receipts of $5 million or less; l
- 4. Small govemmental jurisdiction - a govemment of a city, county, town, township, village, school district or special district with a population of less than 50,000; O
3
the first six months of the fiscal year and licensees who file for termination or for a
( possession only license and permanently cease licensed activities during the first six
! months of the fiscal year pay only 50 percent of the annual fee for that year. Such an invoice states the " Amount Billed Represents 50% Proration." This means the amount due from a small enti'.y is not the prorated amount shown on the invoice but rather one-half of the maximum annual fee shown on NRC Form 526 for the size standard under i
which the licensee qualifies, resulting in a fee of either $900 or $200 for each fee l category billed instead of the full small entity annual fee of $1,800 or $400.
l
- 4. A new small entity form (NRC Form 526) is required to be filed with the NRC each fia' il year in order to qualify for reduced fees for that fiscal year. Because a licensee's " size,"
or the size standards, may change from year to year, the invoice reflects the full fee and a new Form must be completed and retumed for the fee to be reduced to the small l
entity fee. LICENSEES WILL NOT BE ISSUED A NEW INVOICE FOR THE REDUCED i
AMOUNT. The completed NRC Form 526, the payment of the appropriate small entity
- fee, and the " Payment Copy " of the invoice should be mailed to the U. S. Nuclear Regulatory Commission, License Fee and Accounts Receivable Branch at the address indicated the invoice br ed, pe,a,ent..*
- 5. Questions regarding fee invoices may be posed orally or in writing. Please call the license fee staff at 301-415-7554 or write to the U.S. Nuclear Regulatory Commission, Washington, DC 20555, Attention
- Office of the Chief Financial Officer, l 6. False certification of small entity status could result in civil sanctions being imposed by the NRC pursuant to the Program Fraud Civil Remedies Act,31 U.S.C. 3801 at. ARE.
8 L___ ___________ .