ML20236W730
| ML20236W730 | |
| Person / Time | |
|---|---|
| Issue date: | 05/19/1998 |
| From: | Galante A NRC |
| 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 AF83-2-008, AF83-2-8, NUDOCS 9808060172 | |
| Download: ML20236W730 (26) | |
Text
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ptDECyg FF3 - X
$ UNITED STATES -
a B NUCLEAR REGULATORY COMMISSION
, f WASHINGTON, D.C. 2055H001
%,...../ May 19, 1998 MEMORANDUM TO: James Turdici, Director i Division of Accounting and Finance Office of the Chief Financial Officer r
FROM:
A. J. Galante (
Chief InformatiD .icer
SUBJECT:
FINAL NOTICE OF RULEMAKING - 10 CRF PARTS 170 AND 171 - 100 PERCENT FEE RECOVERY FOR FY 1998 I concur in the final notice of rulemaking for fee recovery. Editorial suggestions are attached, if you should have any questions, please contact Fran Goldberg on 415-7545 or FFG,
Attachment:
As stated i
l 9000060172 900728 l PDR PR !
2 63FR31840 PDR cf9 02OG>O I 7L. OA
In this final rule, FY 1998 annual fees have been adjusted downward by about 0.1 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, annusi fees would be stabilized by adjusting the prior year annual fees by the percent change (plus or minus) in the NRC budget authority taking into consideration the estimated collections from 10 CFR Part
- 170 fees and the number of licensees paying fees;
- 2. Revise the two professional hourly rates in $170.20 which are used to determine the 10 j CFR Part 170 fees assessed by the NRC. The rate for FY 1998 for the reactor program 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 is.p
't and licensees to reflect the changes in the revised hourly 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.
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j 5. Implement a procedural change to assess fees ender 19170.21 and 170.31 for 1e activities, such as application reviews and inspections, performed during compensated overtime. The compensated overtime hours will be billed at the normal hourly rate.
- 11. Responses to Comments The NRC received four comments on its proposed rule. Although the comment period ended 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.
I 1. Comment. Two commenters stated that the basis for the increase in the ~
o,inual fees was not explained in the proposed rule. These commenters indicate that NRC has i
' not followed the Congressional directive in the Conference Report on tho Omnibus Budget L
Reconciliation Act of 1990 (OBRA-90) that the annual charges, "to the maximum extent practical, reasonably reflects the cost of providing services to such licensees or classes of i
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licensees." One of these commenters, the Nuclear Energy Institute (NEI), indicated that the l general descriptions of the activities comprising the basis for the annual fee do not provide sufficient information for the public to meaningfutiy comment on this aspect of the proposed rule, and went on to argue that the NRC's obligation to examine its activities and their associated costs annually pursuant to OBRA-90 cannot be satisfied by merely adjusting the FY l 1995 baseline determinations. Both of these commenters indicated that the NRC should not I
! proceed with the rule as proposed and should provide a clear explanation of the relationship t
between services provided and the proposed annual fee. One commenter stated that the
[
l descrint% 3nd level of justification should be no less than that employed prior to 1995. NEl m
also stateo t, .4C id not provide any information to enable an evaluation of the basis for the y
. Judgement that neither f the two tests for reexamining the basis for the annual fees (e.g., a substantial change the NRC's ' budget or in the magnitude of a specific budget allocation to a O !
I O class of licensees) had been met. RC . ,.
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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 2G355.
Moreover, a detailed explanation of NRC's budget is set forth in NUREG-1100, Volume 13,
'v bt. get Estimates Fiscal Year 1998 published in February 1997. NRC staff during the comment M 8
riod also responded to telephonic requests for additional explanation of the proposed rule.
Contrary to commenters' inference, OBRA 90 does not require NRC to rebaselirse annual fees
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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."
'd The conference Report on the statute makes clear that ongress recognized that the allocation w >
b 9 of fees would diverge from the allocation of resources in the budget. The conferees further
" recognize [oj that there are expenses that cannot be attributed either to an individualiicensee or a class of licensees." ouse Conference Report 101-954, p. 962 /
In promulgating the FY 1995 fee rule, the NRC solicited comments on a proposs! 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 change in that total budget or in the magnituda of a specific budget allocation to a specific class
'V of licensees. The NRC indicated that the annual fees would also be adjusted to compensate 6
l.
for changes in Part 170 fee collections and he number of licensees paying annual fees. The -@~r 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 fluctuations in annual fees that had occurred in the past and to provide for greater predictability of fees. At that time, neither NEl nor any reactor licensee objected to the proposed method.
Based on the comments received supporting the methodology, the NRC adopted the change, and the revised method was used to determine the FY 1996 and FY 1997 annual fees. The revised method was not challenged by commenters when it produced a reduction of about 6 percent in FY 1996, and time NEl stated that it was " pleased that the annual fees a
4 for licensees are being lowered by slightly over 6%" The Commission reaffirmed the legality of l its approach in its denial of an NEl petition seeking reconsideration of the final fee rule for fiscal l
l year 1997. ,5 October 1,1997, letter from John C. Hoyle, Secretary of the Commission, to F A a h-Robert W. Bishop, Vice President and General Counsel, Nuclear Energy Ins'itute.
With regard to the question of whether the criteria established by NRC for rebaselining have
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been met, the NRC specifically stated in the proposed rule that there hashbd)n)a _
W change jrrthe NRC budget nor in the magnitude of a specific budget allocation to a class of g
! 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 clearly not a substantial change. Similarly, there have not been 1
. major changes in the allocation of budgeted resources to specific classes of licensees, and a l
comparison of the FY 1997 and FY 1998 budgets confirms this.
This final rule adopts the methodology to streamline and stabilize FY 1998 annual fees by
( adjusting these fees by the percentage change in NRC's total budget authority. The FY 1997 4
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fees have been used as base annual fees, and these feas have been adjusted for FY 1998 (mV) 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 Pait 170 fees. The proposed FY 1998 annual fees were developed using an estimated number of days for l
I 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 !
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power reactc4 paying annual fees in FY 1998 than in FY 1997, and the proposed FY 1998 {
l 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 develnped based on the Zion 1 and 2 I 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 t g
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.
- 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 questions why the reactor annual fee was not reduced in light of the premature shutdown of i four nuclear units in FY 1997. Another commenter states that, with the shift from operating 7, ,"
, g5 licensees to decommissioning activities, strong action to reduce overhead and central staff 66 appears appropriate. This commenter also states that the 10 percent fewer power licensees with much better average performance t;ian in the past should yield reductions in total NRC fees.
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\v) Besconse. Although the proposed reactor annual fee increased i l
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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,cfa roximate!y $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 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 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 tY 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 i
rounding) annual fees.
m B. Fees for Services that do not Benefit Licensees
- 1. Comment. Commenters continue to urge NRC to take action to eliminate fees for ser. ices that do not benefit the licensees paying the annual fees. Commenters conclude that recovering the costs of these activities from reactor licensees violates the provision of OBRA-90 that the charges shall have a reasonable relationship to the cost of providing regulatory services. One commenter arguss that assessing these non-reactor costs to reactor licensees exceeds the Congressional delegation of authority and is art >itrary and capricious, and therefore violates the Equal Protection requirements of the Due Process Clause l of the Fifth Amendment to the United States Constitution. One commenter suggests that the NRC could conclude that recovering 88 percent ofits 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 9
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resolve the issue, as it has committed to do in the past.
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! Response. As NRC has stated on many occasions, the agency shares commenters
' concems that licensees are paying for activities that do not directly benefit them. However, the NRC disagrees with commenters that recovering these costs from licensees violates statutory l
- . requirements. In fact, the Congressional guidelines provided in the Conference Report to the l
l 100 percent fee recovery legislation specifically provide for the assessment of fees to licensees I to recover agency costs that may not provide direct benefits to them.- The conferees recogr,1 zed that " Congress must indicate clearly its intentior to delegate to the Executive the discretionary authority to recover administrative costs not inuring directly to the benefit of
. regulated parties" and that Congress must provide guidelines for making these assessments.
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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 expenses 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 recovered from the licensee s as the Commission, in its discretion, determines can fairly, equitably, and practicably centribute to their payment. h36 Congec. Based at H12692,3 on these explicit guidelines, the NRC concludes that the assessment of fees to recover these costs from licensees is neither arbntary 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 Congress to address these concerns has not been enacted, the NRC has taken OerCCWed several steps to mitigateMnequities within the constraints of existing law. For example, the g--
L Commission successfully obtained ' appropriation legislation which removed from the fee base l 10 i
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certain costs incurred as a resuit 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 Federal agencies. The NRC has not submitted proposed legislation which would take out of the fee base the costs of services which do not provide direct benefits to licensees because the 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.
TI.. NRC disagrees that eliminating these costs from fee recovery, thereby recovering 88 percent of the budget, would meet the OBRA-90 mquirement 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 D
"approximately 100 percent" as meaning that the Commission should promulgats 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 Congre t/
nt that the Commission allocate 100 percent of this budget
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authority for fee assessment, an e term "approximately 100%" refers only to the inherent I
uncertainties in estimating and collecting the fees. Furthermore, in NRC's annual appropriations acts, the Congress presumes that the NRC fee collections will approximate 100 l
percent, not 88 percent, of its budget authority. e.g.yTitle IV of the Energy and Water -
I 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
to the surcharge costs to be assessed to reactor licensees in FY 1991, that the Commission i
has determined that operating power reactor licensees can more equitably and practicably pay 1 i
these costs than other NRC licensees, and since the overwhelming portion of the Commission's l
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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). )!
C. Part 170 Fees
- 1. Comment. Commenters indicate that NRC should increase the percentage of l l
costs recovered through Part 170 fees. One commenter claims that there is no exemption 1
authority from the provision that "any person who receives a service or thing of value from the 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
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from NRC licensees are for non-discrete services. This approach makes it too easy to shift i
personnel from providing discrete services to working on genetic issues, thereby increasing - ;
I l overhead costs as actual sen/ ices provided to individual licensees decline, rather than make the hard decisions of what activities are rea!!y necessary." Another commenter concludes that i NRC has not adequately allocated costs to the beneficiaries of the services. Commenters l i
support the reduced hourly rate and NRC's proposed full-cost provision for resident inspectors; howes r commenter indicated time for resident inspectors assigned to special inspections t-j j !
I l at ot plants should be charged to those specific inspections. One commenter supported the j l
NRC's proposed long-term policy to progress bill for all inspections. l l
I Response. The NRC previously responded to commenters' claim that there is no I v
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j The NRC is amending its licensing, inspection, and annual fees to recover approximately 100 percent of its FY 1998 budget authority, including the budget authority for its Office of the inspector General, less the appropriations received from the NWF and the General Fund. For FY 1998, the NRC's budget authority is $472.8 million, of which $15.0 million has been appropriated from the NWF. In addition, $3.0 million has been appropriated from the General Fund for activities related to commercial vitrification of waste stored at the Department of Energy Hanford, Washingt it and for the pilot program for the extemal regulation of the /
Department of Energy. The FY 1998 appropriation language states that the $3.0 million appropriated for regulatory reviews and other activities pertai..ing to waste stored at the Hanford, Washingte ite and activities associated with the pilot program for external regulation of the Department of Energy shall be excluded from license fee revenues notwithstanding 42 /
U.S.C. 2214. Therefore, NRC is required to collect approximately $454.8 million in FY 1998 I
k h-V through 10 CFR Part 170 licensing and inspection fees and 10 CFR Part 171 annual fees, The total amount to be recovered in fees for FY 1998 is $7.5 million less than the amount estimated for recovery for FY 1997. The NRC estimates that approximately $94.6 million will be recovered in FY 1998 from fees assessed under 10 CFR Part 170 and other receipts, compared to $95.2 million in FY 1997. The remaining $360.2 million will be recovered in FY 1998 through the 10 CFR Part 171 annual fees. The total amount to be recovered / 7
! through annual fees in FY 1998 is approximately $6.4 million less than in FY 1997. g (1' 5, '
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in addition to the decrease in the total amount to be recovered through annual fees and the slight reduction in the estimated amount to be recovered in 10 CFR Part 170 fees, the number of licensees paying annual fees in FY 1998 has decreased compared to FY 1997. For example, Commonwealth Edison notified the NRC that the Zion Station Units 1 and 2 ceased 15
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.
l As announced in the proposed rule, the NRC will no longer mail the final rule to all licensees. In addition to publication in the Federal Register, the final rule is available on the Internet at http://ruleforum.lin!. gov /.
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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 to continue to send the proposed rule to all licensees.
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The NRC also announced in the proposed rule that it plans to reexamine the current annual fee exemption policy for licensees in decommissioning or holding possessi ly K licenses and the annual fee policy for reactors' storage of spent fuel. Any changes to the current fee policies will be included in the FY 1999 fee rulemaking. One purpose of the study is to assure consistent fee treatment for both wet storage (i.e., spent fuel pool) and dry storage (i.e., independent spent fuel storage installations, or ISFSis) of spent fuel. The Commission has previously determined that both storage options are considered safe and acceptable forms of storage for spent fuel. Under current fee regulations, Part 50 licensees in decommissioning (L
who store spent fuel in)ht(spent fuel pool are not assessed an annual fee, but licensees who K-store spent fuelin 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 licensees in decommissioning.
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Part 170 fees will be assessed for activities that occur within approximately 30 days after the inspection report is issued, such as follow-up on the inspection findings. These a:tivities are identifiable services for specific licensees. This change will result in recovery through Part 170 fees of approximately 80 percent of the accumulated costs expended after the inspection report is s3nt, and will continue to provide applicants and licensees with a definitive point at which billing will cease.
Second, the N'RC is revising $170.12(h) to include credit cards as an additional method ,
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1 of pyment, and to provide additional information on electroi.ic payments. Credit card payments will be accept f ~_ -
mall dollar payments. Electronic payments may be made by
- N Fedwire (a funds transfer system operatiifb ederal Reserve System) or by Automated Clearing House (ACH). ACH is a nationwide processing and delivery facility that provides for y the distribution and settlement of electronic financial transactions. Electronic payment will not 7
only expedite the payment process, but will also save applicants and licensees considerable
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time and money over a paper-based payment system.
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Third, the two professional hourly rates established in FY 1997 in $170. are revised
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based on the FY 1998 budget. These rates arc Sased on the FY 1998 dir FTEs nd the FY 1998 budget excluding direct program support (contractual services costs) an he appropriation from the NWF or the General Fund. These rates are used to determine the Part 170 fees. The NRC has established a rate of $124 per hour ($219,901 per direct FTE) for the reactor program. This rate is applicable to all activities for which fees are based on full cost under $170.21 of the fee regulations. A second rate of $121 per hour ($214,185 per direct FTE) is established for the nuclear materials and nuclear waste program. This rate is
[ applicable to all materials activities for which fees are based on full cost under $170.31 of the, f,j 20 y' QUk r v rt . d&d.Qc d " ,J p
( TABLEI Calculation of the Percentaae Chance to the FY 1997 Annual Fees (Dollars in Millions)
FY 1997 FY 1998 Total Budget $476.8 $472.8 Less NWF -11.0 -15.0 Less General Fund (Hanford Tanks, Pilot for :JJ., _ 3.&
Regulation of DOE)
Total Fee Base $462.3 $454.8 Less Part 170 Fees ,95.2 -
94.6 M Less other receipts Part 171 Fee Collections Required $367.1 $360.2 l l
Part 171 Billina Adiustment' Small Entity Allowance 5.0 5.8 Unpaid current FY invoices 3.0 3.9 ,
i Payments from prior year invoices -24 -3.2 l
Subtotal 6.0 .. 6.5 Total Part 171 Billing $373.1 $366.7 25
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'These adjustments are necessary to e'
, that the
- billed" amount results in the required (v) collectio is. Positive amounts indicate amounts billed that will not be collected in FY 1998.
l 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 i approvals who either filed for termination of their licenses or approvals or filed for possession only/ storage licenses before October 1,1997, and permanently ceased licensed activities 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.
Other heensees have either called or written to the NRC since the FY 1997 final rule became
, (v p) effective requesting further clarification and information concerning the annual fees assessed.
The NRC is responding to these requests as quickly as possible. However, the NRC was unable to respond and take action on all requests before the end of the fiscal year on September 30,1997. Similar situations existed after the FY 1991-1996 rules were published, 1
l and in those cases, the NRC provided an exemption from the requirement that the annual fee is -
l waived only when a license is terminated before October 1 of each fiscal year.
Fourth,6171.19 is amended to update fiscal year references and to credit the partial 1
payments made by certain licensees in FY 1998 either toward their total annual fee to be i J
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 additionalinfonnation on electronic payments. Credit card payments will be accepted f$r small dollar payments.
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[Q Program Travel and Other Support Allocated Agency Management and Support $101.7 122&
Subtotal $260.9 $57.3 Less offsetting receipts -
Total Budget included in Hourly Rate $260.9 $57.
Program Direct FTEs 1,186.4 267.3 I Rate per Direct FTE $219,901 $214,185 p Professional Hourly Rate (Rate per direct $124 $121
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FTE divided by 1,776 hours0.00898 days <br />0.216 hours <br />0.00128 weeks <br />2.95268e-4 months <br />) @'
! Dividing the $260.9 million (rounded) budget for the reactor program by the reactor f
( program direct FTEs (1,186.4) results in a rate for the reactor program of $219,901 per FTE for FY 1998. Dividing the $57.3 million (rounded) budget for the nuclear materials and nuclear waste program by the program direct FTEs (267.3) results in a rate of $214,185 per FTE for FY 1998. The direct FTE hourly rate for the reactor program is $124 per hour (rounded to the nearest whole dollar). This rate is calculated by dividing the cost per direct FTE ($219,901) by the number of productive hours in one year (1,776 hours0.00898 days <br />0.216 hours <br />0.00128 weeks <br />2.95268e-4 months <br />) as indicated in the revised OMB I Circular A-76, Per,'ormance of Commercial Activities." The direct FTE hourly rate for the materials program is $121 per hour (rounded to the nearest whole dollar). This rate is f calculated by dividing the cost per direct FTE ($214,185) by the number of productive hours in i
one year (1,776 hours0.00898 days <br />0.216 hours <br />0.00128 weeks <br />2.95268e-4 months <br />).
l l The FY 1998 hourly rates are slightly lower than the FY 1997 rates. The decrease in the hourly rates is primarily due to a change in application of the types of costs included in the 31 )
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l O Section 171.19 Payment.
t Paragraph (a) is revised to provide additional methods of payment and to clarify that payments must be made in U.S. funds.
Paragraph (b) is revised to give credit for partial payments made by certain licensees in FY 1998 toward their FY 1998 annual fees. The NRC anticipates that the first, secongt, and third quarterly payments for FY .1998 will have been made by operating power reactor licensees j
and some large matsr;als licensees before the final rule becomes effective. Therefore, the NRC will credit payments received for those quarterly annual fee assessments toward the total annual fee to be assessed. The NRC will adjust the fourth quarterly invoice to recover the full l amount of the revised annual fee or to make refunds, as necessary. Payment of the annual fee is due on the date of the invoice and interest accrues from the invoice date. However, interest will be waived if payment is received within 30 days from the invoice date.
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l Paragraphs (c) and (d) are revised to delete specific fiscal year references.
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i ragraph (d) is revised to delete specific fiscal year references. v- _
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As in FY 1997, the NRC will continue to bill annual fees for most triaterials licenses on l the anniversary date of the license (licensees whose annual fees are $100,000 or more will l
continue to be assessed quarterly). The annual fee assessed will be the fee in effect on the license anniversary date. This rule applies to those materials licenses in the following fee categories: 1.C. and 1.D; 2.A. (2) through 2.C.; 3.A. through 3.P.; 4.A. through 9.D., and 10.B.
O V For annual fee purposes, the anniversary date of the materials license is considered to be the l 38 )
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Electronic Industries Association v. Federal Communications' Commission. 554 F.2d 1109 (D.C.
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Cir.1976) and Caoital Cities Communication. Inc. v. Federal Communications Commission. 554 F.2d 1135 (D.C. Cir.1976). These decisions of the Courts enabled the Commission to develop fee guidelines that are still used for cost recovery and fee development purposes.
The Commission's fee guidelines were upheld on August 24,1979, by the U.S. Court of Appeals for the Fifth Circuit in Mississicol Power and Licht Co. v. U S. Nuclear Reaulatorv ;
Commission,601 F.2d 223 (5th Cir.1979), cad. dened,444 U.S.1102 (1980). The Court held that-l (1) The NRC had the authority to recover the full cost of providing services to identifiable I beneficiaries; t
(2) The NRC could properly assess a fee for the costs of providing routine inspections necessary to ensure a licensee's compliance with the Atomic Energy Act and with applicable
, d regulations; 4 y p.s -
(3) The NRC could charge for costs incurred in conducting environmental reviews
, required by NEPA; l
(4) The NRC properly included the costs of uncontested hearings and of administrative and technical support services in the fee schedule; (5) The NRC could assess a fee for renewing a license to operate a low-level radioactive
( waste burial site; and 41
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(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 l l
Law 101-508, the Omnibus Budget Reconciliation Act of 1990 (OBRA-90) which required that l 1
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 percent fee recovery requirement for NRC through FY 1998. To accomplish this statutory !
requirement, the NRC, in accordance with 9171.13, is publishing the final amount of the FY 1998 annual fees for operating reactor licensees, fuel cycle licensees, materials licensees, and l
holders of Certificates of Compliance, registrations of sealed source and devices and QA !
program approvals, and Govemment agencies. OBRA-90 and the Conference Committee l Report specifically state that-
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- l (1) The annual fees be based on the Commission's FY 1998 budget of $472.8 million
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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, Washingt it ,and the pilot ;
l- program pertaining to extemal regulation of the Department of Energy-l 1
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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 I
(3) The annual fees be assessed to those licensees the Commission, in its discretion, j determines can fairly, equitably, and practicably contribute to tho payment.
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IX. Backfit Analysis The NRC has determined that the backfit rule,10 CFR 50.109, does not apply to this final rule and that a backfit analysis is not required for this final rule. The backfit analysis is not required because these final amendments do not require tne modification r additions t y -
systems, structures, components, or the design of a facility or the design approval or manufacturing license for a facility or the procedures or organization required to design, construct or operate a facility.
X. Small Business Regulatory Enforcement Fairness Act in accordance with the Small Business Regulatory Enforcement Fairness Act of 1996 the NRC has determined that this action is a major rule and has verifiexf this determination with the Office of Information and Regulatory Affairs of the Office of Management and Budget.
I List of Subjects f 10 CFR Part 2 - Administrative practice and procedure, Antitrust, Byproduct material, Classified information, Environmental protection, Nuclear materials, Nuclear power plants and res-tors, Penalties. Sex discrimination, Source material, Special nuclear material, Waste treatment and disposal.
10 CFR Part 140 - Criminal penalties, Extraordinary nuclear occurrence, insurance,
-Intergovernmental relations, Nuclear materials, Nuclear power plants and reactors, Reporting and record keeping requirements.
44 L- _-- --_ _ _.
i I
f3 LG APPENDIX A TO THIS FINAL RULE -
REGULATORY FLEXIBILITY ANALYSIS FOR THE i
AMENDMENTS TO 10 CFR PART 170 (LICENSE FEES) AND l 10 CFR PART 171 (ANNUAL FEES) i
- 1. Backaround.
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The Regulatory Flexibility Act of 1980, as amended, (5 U S.C. 601 et seq.) establishes as a principle of regulatory practice that agencies endeavor to fit Iegulatory and informational requirements, consistent with applicable statutes, to a scale comm ensurate with the t businesses, organizations, and government jurisdictions to which th ey apply. To achieve this principle, the Act requires that agencies consider the impact of their actions on small entities. If l
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(v ) i 3 agency cannot certify that a rule will not significantly impact a substantial number of small I entities, then a regulatory flexibility analysis is required to examine the impacts on small entities and the alternatives to minimize these impacts.
To assist in considering these impacts under the Regulatory Fle:cibility Act (RFA), first the NRC adopted size standards for determining which NRC licensees qualify as small entities (50 FR 50241; December 9,1985). These size standards were clarifiec grvt -
November 6,1991 (56 FR 56672). On April 7,1994 (59 FR 16513), the Small Business Administration (SBA) issued a final rule changing its size standards. The SBA adjusted its receipts-based size standards levels to mitigate the effects of inflation fror11984 to 1994. On November 30,1994 (59 FR 61293), the NRC published a proposed rule to amend its size standards. After evaluating the two comments received, a final rule that would revise the
/ \
\ / NRC's size standards as proposed was developed and approved by the SBA on March 24, 103 l
L_________. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ ___ __J
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() 1995. The NRC published the final rule revising its size standards on April 11,1995 (60 FR 18344). The revised standards became effective May 11,1995. The revised standards adjusted the NRC receipts-based size standards from $3.5 millien to $5 million to accommodate inflation and to conform to the SBA final rule. The NRC also eliminated the separate S1 million size standard for private practice physicians and applied a receipts-based size standard of $5 million to this class of licensees. This mirrored the revised SBA standard of $5 million for medical practitioners. The NRC also established a size standard of 500 or fewer employees for business concems that are manufacturirig entities. Thia standard is the most common!/ used SBA employee standard and is the standard applicable to the types of manufacturing industries that hold an NRC license.
The NRC used the revised standards in the final FY 1995, FY 19 nd FY 199I fee C
() rules and is continuing their use in this FY 1998 final rule. The small entity fee categories in 5171.16(c) of this final rule reflect the changes in the NRC's size standards adopted in FY 1995. A new maximum small entity fee for manufacturing industries with 35 to 500 employees was established at $1,800 and a lower-tier small entity fee of $400 was established for those manufacte: g industries with less than 35 employees. The lower-tier receipts-based threshold of $250,000 was raised to $350,000 to reflect approximately the same percentage adjustment as that made by the SBA when they adjusted the receipts-based standard from $3.5 mi!Iion to
$5 million. The NRC believes that continuing these actions for FY 1998 will reduce the impact l 1
of annual fees on small businesses. The NRC size standards are codified at 10 CFR 2.810.
Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990 (OBRA-90),
requires that the NRC recover approximately 100 percent of its budget authority, less )
Io! d appropriations from the Nuclear Waste Fund, for Fiscal Years (FY) 1991 through 1995 by 104 u-______________-__-_________ _ _ _ _ _ _ J
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[7590-01-P]
NUCLEAR REGUL'ATORY COMMISSION 10 CFR Pads 2,140,170 and 171 RIN:' 3150-AF 83 Revision of Fee Schedules,100% Fee Recovery, FY 1998 AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is amending the licensing, inspection, and annual fees charged to its applicants and licensees. The amendments are necessary to implement the Omnibus Budget Reconciliation Act of 1990 (OBRA-90), which mandates that the NRC recover approximately 100 percent of its budget authority in Fiscal Year (FY) 1998, less amounts appropriated from the Nuclear Waste Fund (NWF). The amount to be recovered for FY 1998 is approximately $454.8 million. The NRC is also providing additional payment methods for civil penalties and indemnity fees, as well as annual and licensing fees.
l EFFECTIVE DATE: (60 days after publication in the Federal Register.)
1 Copies of comments received and the agency workpapers that support these final changes to 10 CFR Parts 170 and 171 may be examined at the NRC Public Document Room,2120 L Street NW. (Lower Level), Washington, DC 20555-0001. Comments received may also be viewed and downloaded electronically via the interactive rulemaking website established by the
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DOCUMENT NAME: g:\ proposed.98 fee j 79 moeive o eepr of this document, indicate in the boa: "C" = Copy without ettschment/ enclosure "E" = Copy wnh attachment / enclosure *N* = No copy l '
OFFICE OCF0 OCF0:DAF l ADM l OGC l NMSS l NAME GJackson.DDandois JTurdici ELHalman TBRothschild CJPaperiello DATE / /98 / /98 / /98 / /98 / /98 0FFICE NRR l OIP [. / ( l OE l EDO l DCF0 l CFO NAME SCollins CRStoigr JLieberman JCallan PRabideau JLFunches DATE / /98 5//r/98 / /98 / /98 / /97 0FFICIAL RECORD COPY l C l
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[7590-01-P]
NUCLEAR REGULATORY COMMISSION 10 CFR Parts 2,140,170 and 171 RIN: 3150-AF 83 Revision of Fee Schedules; 100% Fee Recovery, FY 1998 AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
SUMMARY
- The Nuclear Regulatory Commission (NRC) is amending the licensing, i inspection, and annual fees charged to its applicants and licensees. The amendments are
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necessary to implement the Omnibus Budget Reconciliation Act of 1990 (OBRA-90), which mandates that the NRC recover approximately 100 percent of its budget authority in Fiscal Year (FY) 1998, less amounts appropriated from the Nuclear Waste Fund (NWF). The amount to be i
recovered for FY 1998 is approximately $454.8 million. The NRC is also providing additional payment methods for civil penalties and indemnity fees, as well as annual and licensing fees.
j EFFECTIVE DATE: (30 days after publication in the Federal Register.)
Copies of comments received and the agency workpapers that support these final changes to l I L
10 CFR Parts 170 and 171 may be examined at the NRC Public Document Room,2120 L l Street NW. (Lower Level), Washington, DC 20555-0001. Comments received may also be 1
viewed and' downloaded electronically via the interactive rulemaking website established by the
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DOCUMENT NAME: g:\ proposed.98 fee 6 h,. . ,, .e m. m m m sw. w c . cm = .n.cnm.m.ncio . r copy e en. chm.m.ncio.w. r - No copy 0FFICE OCFO OCF0:DAF l ADM l OGC l NMSS l NAME GJackson.DDandois JTurdici ELHalman TBRothschild CJPaperiello DATE / /98 / /98 / /98 / /98 / /98 nn#
OFFICE 'NRR OIP l Of/f"'[ EDO I DCFO/ \ CFO l NAME SCollins CRStoiber JLighdiiian JCallan PRa)(ideau JLFunches DATE / /98 / /98 f/i198 f / /98 / / /97 0FFICIAL RECORD COPY a
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