ML20236Y373

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Informs That OGC Has No Objection to Final Rule as Drafted
ML20236Y373
Person / Time
Issue date: 05/20/1998
From: Rothschild T
NRC
To: Gerard Jackson
NRC
Shared Package
ML20236V991 List:
References
FRN-63FR31840, RULE-PR-140, RULE-PR-170, RULE-PR-171, RULE-PR-2 AF83-2-010, AF83-2-10, NUDOCS 9808120154
Download: ML20236Y373 (1)
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Text

/}PF3 t M f0R hlY From: Top Roth5;ndd To: TWD2.TWP9iGCJ)

Date: 5 20 9810 03am

Subject:

Fee Rule Concurrence -Reply I have the OGC comments. What do you want me to do with them.

OGC has no legal objection to the final rule as drafted.

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NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 206E0001 e M ay 15,1998 MEMORANDUM TO: L. Joseph Callan Executive Director for Operations 6b c4  %

Carlton R. Stoiber, Director hj Office of intemational Programs J. Lieberman, Director A f Office of Enforcement Edward L. Halman, Director

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Office of Administration Trip B. Rothschild, Deputy Assistant General Counsel /Le islative Counsel FROM: James Turdici, Dir -

Division of Accounting n inance Office of the Chief Fin Officer

SUBJECT:

FINAL NOTICE OF RULEMAKING - 10 CFR PARTS 170 AND 171 - 100 PERCENT FEE RECOVERY FOR FY 1998 Attached for your concurrence is a final rule for the FY 1998 fees to be assessed to recover 100 percent of the NRC budget authori;y. Conforming revisions to 10 CFR Parts 2 and 140 are included to provide additional payment methods for civil penalties and indemnity fees.

The comment period for the proposed rule ended May 1,1998. In order to meet the schedule for the final rule to become effective to ensure 100 percent fee recovery for FY 1998, it must be forwarded to the Commission by May 26,1998. Therefore, we unfortunately must again ask for a quick tum-around on the fee rule. In order to expedite this action, we are providing each addressee a separate concurrence copy. Please provide your concurrence as quickly as possible, but no later th if you have any questions, please contact Glenda Jackson on 301-415-6057. Thank you for your assistance in this matter.

Attachment:

As stated cc: T. Barchi, OlG ,

C. Paperiello, NMSS l S. Collins, NRR A. Galante, CIO 1 H. Bell, OlG '

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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, 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.

EFFECTIVE DATE: (60 days after publication in the Federal Register.)

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 a

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' f Aon-NRC for this rulemaking. -9ocA *

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FOR FURTHER INFORMATION CONTACT: Glenda Jackson, Office of the Chief Financial  ;

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Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, Telephone 301- ,

l 415-6057.

I SUPPLEMENTARY INFORMATION: I>

l. Background.

j ll. Responses to Comments.

l l

lli. Final Action.

l I IV. Section-by-Section Analysis

. V. EnvironmentalImpact: Categorical Exclusion.

VI. Paperwork Reduction Act Statement.

Vll. Regulatory Analysis.

Vill. Regulatory Flexibility Analysis.

1 IX. Backfit Analysis.

X. Small Business Regulatory Enforcement Fairness Act i

1. Background i i

Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990 (OBRA-90),

I enacted November 5,1990, requires that the NRC recover approximately 100 percent of its i

budget authority, less the amount appropriated frompe Department of Energy (DOE) ww a -- -

administered NWF for FYs 1991 through 1995 by assessing fees. OBRA-90 was amended in 1993 to extend the NRC's 100 percent fee recovery requirement through FY 1998.

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l The NRC assesses two types of fees to recover its budget authority. First, license and inspection fees, established at 10 CFR Part 170 under the authority of the Independent Offices Appropriation Act (IOAA),31 U.S.C. 9701, recover the NRC's ccsts of providing individually i

identifiable services to specific applicants and licensees. Examples of the services provided by I

! the NRC for which these fees are assessed are the review of applications for the issuance of

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new licenses, approvals or renewals, and amendments to licenses or approvals. Second, f

annual fees, established in 10 CFR Part 171 under the authority of OBRA-90, recover generic I

and other regulatory costs not recovered through 10 CFR Part 170 fees. 1 On April 12,1996 (61 FR 6203), the NRC ished its final rule establishing the licensing, inspection, and annual fees e sary for the NRC to recover approximately 100 percent of its budget authority for 19 , ess the appropriation received from the Nuclear '

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Waste Fund. Several chan to the fees as sed for FY 1996 were adopted by the NRC.

! These changes were hi ighted in the final rule (6 FR 16203; April 12,1996) and bear on the approach for esta hing annual fees set forth in this p posed rule. ,

i j On April 1,1998, the NRC published a proposed rule to establish the licensing, inspection, and annual fees necessary for the NRC to recover approximately 100 percent of the

' budget authority for FY 1998, less the appropriation received from the Nuclear Waste Fund and the General Fund, and to provide additional payment methods for civil penalties and indemnity fees. These changes were highlighted in the proposed rule (63 FR 16046; April 1,1998) and have been adopted in this final rule for FY 1998. The major changes are summarized as follows:

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1. Adjust all 10 CFR 171 annual fees by the percent change in the NRC budget authority p M
  1. T PyFrn MAL - 3 E _ - - _ - - - - _ - - _ _ _ - - - - - - - - - _ - - - - - 3

I in this final rule, FY 1998 cr.nual 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, 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; AH

2. '.

Reviseghh two professional hourly rates in 9170.20 which are used to determine the 10 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 /

\ h. l l and licensees to reflect the changes in the revised hourly rates.

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4. Revise 9170.12(q) to include full cost recovery for resident inspectors and to recover 0~ ,

costs incurred up to approximately 30 *Np after issuance of the inspection report. -

5. Implement a procedural change to assess fee der $f170.21 and 170.31 for v 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 The NRC received four comments on its proposed rule. Alth~";h the n.m.me.4 p.-::d =d:d V A,

. an my 1 1^^?, th; NRO h&& .......d &nd overusivu sii wiinirwirte row...d.

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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.

1. Comment. Two commenters stated that the basis for the increase in the annual fees was not explained in the proposed rule. These commenters indicate that NRC has rect followed the Congressional directive in the Conference Report on the Omnibus Budget F

j g Reconciliation Act of 1990 (OBRA-90) that the annual charges, "to the maximum extent pu/Mk

' , N practieel, reasonably reflects the cost of providing services to such licensees or classes of licensees." One of these commenters, the Nuclear Energy Institute (NEI), indicated that the general descriptions of the activities wmprising the basis for the annual fee do not provide sufficient information for the publ;c to meaningfully comment on this aspect of the proposed rule, and went on to argue that the NRC's obligation to examine its activities and their '

Mated costs annually pursuant to OBRA-90 cannot be satisfied by merely adjusting t '

1995 baseline determinations. - Both of these commenters indicated that the NRC should not proceed with the rule as proposed and should provide a clear explanation of the relationship between services provided and the proposed annual fee. One commenter stated that the description and level of Justification should be no less than that employed prior to 1995. NEl also stated that NRC did not provide any information to enable an evaluation of the basis for the jud ent that neither of the two tests for reexamining the basis for the annual fees (e.g., a A substantial change in the NRC's budget or in the magnitude of a specific budget allocation to a class of licensas) had been met.

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l Response. The NRC believes that it has provided sufficient information to allow I

public evalu-"7n and comment on the proposed fees. The proposed fee rule contained specific explantwuns for the changes to the annual fees, including tables showing the calculation of the percentage change to the annual fees. In addition, as statgn the proposed rule, the workpapers supporting the proposed fee rule changes aps%vailable for public examination in #'

the NRC Public Document Room at 2120 L Street, NW (Lower Level), Washington, DC 20555.

i Moreover, a detailed explanation of NRC's budget is set forth in R ogm , Aj budget Estimates Fiscal Year 1998 published in February 19973 NRC staff during the comment period agp responded to telephonic requests for additional explanation of the proposed rule. /

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 c! asses of licensees."

The bnference 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 1 1-954, Y '

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Gw y S in promulgating the FY 1995 fee rule, the NRC solicited comments on a propowal 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 magnitude of a specific budget allocation to a specific class of licensees. The NRC indicated that the annual fees would also be adjusted to compensate 6

7 for changes in Part 170 fee collections and the number of licensees paying annual fees. The 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 ni 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 in fact at the time NEl stated that it was " pleased that the annual fees for licensees are being lowered by slightly over 6%" The Commission reaffirmed the legality of its approach in its denial of an NEl petition seeking reconsideration of the final fee rule for fiscal year 1997. San, October 1,1997, letter from John C. Hoyle, Secretary of the Commission, to Rooert W. Bishop, Vice President and General Counsel, Nuclear Energy Institute.

With regard to the question of whether the criteria established by NRC for rebaselining have been met, the NRC specifically stated in the proposed rule that there has not been a substantial 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 (av reJAD ,..

less than in FY 1997. This is clear'/ nt* a substantial change. Similarly,Vthere have not been n wtG r,,s.J [-

major changes in the allocation of b.!%ed resources to specific classes of licensees, end e p

camparison of_thefYi1Hr8FdWT990 buseo cc35rma this.

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l 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 7

i resolve the issue, as it has committed to do in the past.

Resoonse. As NRC has stated on many occasions, the agency shares commenters) concerns that licensees are paying fnr activities that do not directly benefit them. However, the NRC disagrees with commenters that recovering these costs from licensees violates statutory l l

requirements. In fact, the Congressional guidelines provided in the Conference Report ic the 100 percent fee recovery legislation specifically provide for the assessment of fees to licensees 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 parties" 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 hat the NRC fairly and equitably recover these expenses from its licensees through the annual charge even though these expenses cannot be attributed to individuallicensees or classes of licensees. These expenses may be recovered from the licensees as the Commission, in its discretion, determines can fairly, equitably, and practicably contribute to their payment. 136 Cong Rec. at H12692,3. Based on these explicit guidelines, the NRC concludes that the assessment of fees to recover these v'

costs from licensees is neither ar ry nor capricious, and does not violate any statute.

Nevertheless, the NRC continues to take action to minimize the impacts of recovering the costs l of these activities from licensees. Although legislation recommended in NRC's February 23, 1

1994, Report to Congress 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 Commission successfully obtained appropriation legislation which removed from the fee base 10

i certain costs incurred as a result of regulatory reviews and other assistance provided to the l

Department of Energy and other Federal agencies. In addition, when authorized by law, the j 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 l

1 Office of Management and Budget has advised that such legislation would be inconsistent with

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l the President's budget. The Commission is currently considering ways to address this issue. l The NRC disagrees that ei 'nating these costs from fee recovery, thereby recovering 88 percent of the budget, would meet the OBRA 90 requirement that NRC recover approximately )

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100 percent of its budget authority through fees. As the NRC ctated 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 i appropriations acts, the Congress presumes that the NRC fee collections will approximate 100 percent, not 88 percent, of its budget authority. Sef, egTitle IV of the Energy and Water - Vl 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." ingomulgatmg4hepY-199tfmakuk, the NRC-statedinTegard-

& tf ff Sc{ wh A r'sksl>LJ 4; /;who + wa k m p' i 11 L

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to the surchar costs to be assess to reactor licen s in FY 1991, tha the Commissio has determin d that operating pow reactor licens can gequitabl and practicably pay o

Y. h+Qinese costs 11an other NRC licenstoverwhelming es, G=w=porti t of the Commisi, ion's budget is d oted to the regulatior of power react a .:. ,-

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1. Comment. Commenters indicate that NRC should increase the percentage of Le 4

costs recovered through Part 170 fees. One commenter claims that there is no exemption  %.,q l 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 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 generic issues, thereby increasing -

overhead costs as actual services provided to individual licensees decline, rather than make the hard decisions of what activities are really necessary." Another commenter concludes that NRC has not adequately allocated costs to the beneficiaries of the services. Commenters support the reduced hourly rate and NRC's proposed full-cost provision for resident inspectors; i

l however one commenter indicated time for resident inspectors assigned to special inspections 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 12 a

The NRC has already taken steps to evaluate other areas for potential cost recovery under Part 170, with the intention of including the recommended activities in the FY 1999 proposed fee rule for public comment.

D. Annual Fees for Certificates of Comoliance lasued to the United States Enrichment CornoieGon.

1. Comment. The United States Enrichment Corporation (USEC) requested that a single annual fee be assessed for the two Gaseous Diffusion Plants (GPD's) operated by USEC and the fee should be reduced to a value commensurate with the proposed fee for the low-enriched uranium fuel fabrication facilities. USEC submitted detailed information to support its request. USEC stated that its comments not only address its belief that the proposed rule is not fair and equitable, but also serve as a request for reconsideration of the NRC's March 23, 1998, denial of USEC's request for an exemption from the annual fees.

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p kU Response, NRC rejected similar arguments from USEC in the FY 1997 final rule 62 f FR f 29197), and in its' March 23,1998, denial of USEC's annual fee exemption request. 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 usSC 'I appropriate fee category, insofar as iltletter requests a reconsideration of the March 23,1998, /'

. 4 5; denial oHASEebt annual fee exemption request, the NRC will respond to that request /

l. separately.

l 111. Final Action 14

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i The NRC is amanding 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, Washington site, and for the pilot program for the extemal regulation of the

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Department of Energy. The FY 1998 appropriation language states that the $3.0 million appropriated for regulatory reviews and other activities pertaining to waste stored at the Hanford, Washin tortsatsand activities-associated-with th= piint pr ram for extemal regulation '

f' of the Department of Energy shall be excluded from license fee revenues notwithstanding 42 L U.S.C. 2214. Therefore, NRC is required to collect approximately $454.8 million in FY 1998 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 through annual fees in FY 1998 is approximately $6.4 million less than in FY 1997.

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 notifieg! the NRC that the Zion Station Units 1 and 2 ceased 15

- _ - _ - _ _ _ _ _ - -- __- _ _ ___- _ - _ _ - - a

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operations on February 13,1998. On March 11,1998, the NRC docketed Commonwealth Edison's certification that all fuel has been removed from the Zion Station Units 1 and 2 reactor l vessels. In addition, both the Haddam Neck Plant and the Maine Yankee Plant ceased operations during FY 1997 and therefore are not subject to the FY 1998 annual fees. This is 1

equivalent to a reduction of 2.3 power reactors subject to the FY 1998 annual fees compared to l

FY 1997. The Big Rock Point Plant, a small, older reactor historically granted a partial _

!] l exemption from the annual fee, also ceased operations in FY 1997 and is no longer subject to annual 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 Station 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 )

certifications of permanent cessation of operations and permanent removal of fuel from the reactor vessels, which were filed 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. As a result, 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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Because this is a slight decrease, after rounding the final FY 1998 annual fees for many fee ,

. c Nestegories are the same as the final (rounded) FY 1997 annual fees. The change to the annual Sy m

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fees is described in more detail in Section B. The following examples illustrate the changes in -

annual fees:

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1 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.

As announced in the proposed rule, the NRC will no longer mail the final rule to all

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.\r' licensees. In addition to publication in the Federal Register, the final rule is available on the ,G Intemet at http://ruleforum.llnl. 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 Bran , 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 alllicensees.

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 possession only licenses and the annual fee policy for reactors' storage of spent fuel. Any changes to the 7 V

current fee policies will be included in the FY 1 ,9 f e paking. One purpose of the study is fy rs g -

to assure consistent fee treatment for bot et torage (i.e., spent fuel pool) and dry storage h9 )

0'%l (i.e., independent spent fuel storage installations, or ISFSis) of spent fuel. The Commission

\g 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 who store spent fuel in the spent fuel pool are not assessed an annual fee, but licensees who 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 ir, decommissioning.

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The NRC is amending 10 CFR Parts 170 and 171 as discussed in Sections A. and B.

below:

A. Amendments to 10 CFR Part 170: Fees for Facilities. Materials. Imoort and Exoort Licenses. and Other Reaulatorv Services.

Four amendments have been made to 10 CFR Part 170. These amendments do not change the underlying basis for the regulation - that fees be assessed to applicants, persons, and licensees for specific identifiable services rendered. The amendments also comply with the guidance in the Conference Committee Report on OBRA-90 that fees assessed under the Independent Offices Appropriation Act (IOAA) recover the full cost to the NRC of identifiable regulatory services that each applicant or licensee receives.

First, the NRC is amending 9170.12(g) to include the following for cost recovery:

(1) Full-cost recovery for resident inspectors.

Because the assignment of a resident inspector to a site is an identifiable service to a specific licensee, the NRC w e specific licensee for all of the resident inspectors' time, excluding leave, unM'"O, _x:that time spent by a resident inspector in -

support of activities at another siteyill nct L bmv nu =ir ic -*!chnt is l aeli@ Met This change is applicable to all classes of licensees having resident I

inspectors.

(2) Costs expended within approximately 30 days after the issuance of an inspection report.

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fee regulations. In the FY 1997 final fee rule, these rates were $131 and $125, respectively.

The decrease in the hourly rates is primarily due to a change in application of the types of costs included in the hourly rates. Previously, the hourly rates were determined based on the premise that surcharge costs should be shared by those paying Part 170 fees for services as well as those paying Part 171 annual fees. The revised hourly rates have been determined based on the principle that the surcharge costs are more appropriately included only in the Part 171 annual fee.

In addition, Section Chiefs are included as overhead in the calculation of the FY 1998 hourly rates, and any specific Section Chief effort expended for reviews and inspections will not be billed to the applicant or licensee. Previously, the Section Chiefs' tirne for specific licensing and inspection activities were directly billed under Part 170 to the applicant or licensee. This change is consistent with the current budget structure which includes Section Chiefs as overhead.

Fourth, the NRC has adjusted the current Part 170 licensing fees in 99170.21 and 170.31 to reflect the revised hourly rates.

In summary, the NRC as revise art 170 to:

(1) Assess Part 170 f a o recover costs for all of the resident inspectors' time, excluding leave, and cos incurr within approximately 30 days after issuance of an inspection report, (2) Offer ditional payment meth for 10 CFR Part 170 fees.

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(3) Revise the two 10 R Part 170 h urifra$es.

(4) Revise the lice ' g (apph tion and amendment) fees assessed under 10 CFR Part 170 to r et the revised hou rates.

in addition, although not a specific change to Part 170, the NRC will assess Part 170 fees for compensated overtime hours expended for activities covered by Part 170, such as reviews of applications, inspections, Part 55 exams, and special projects. The compensated overtime hours will be billed at the normal hourly rate.

In addition, the NRC will aisc bill for accumulated inspection costs prior to issuance of the inspection report under certain ein umstances. NRC plans to progress bill for inspections in selected cases where it is determined that such billing would be in the best interest of the agency and the licensee, if it is determined that the accumulated cests warrant an exception to the billing method currently provided in 10 CFR 170.12(g), NRC will coordinate with the licensee to establish a mutually agreeable billing schedule and will issue an invoice for inspection costs that have accumulated.

The NRC is developing a system that will accommodate routine billing for accumulated -

inspection costs at a specified interval. Once that system is available, the NRC intends to progress bill for all inspections. The staff sought early comment on the long-term policy in this FY 1998 proposed rule, and received one comment supporting the change. The necessary revision to 10 CFR 170 will be made in future rulemaking when the system is available to accomplish this.

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The following analysis of thosa sections that will be amended by this final rule provides additional explanatory information. All references are to Title 10, Chapter I, U.S. Code of Federal Regulations.

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Part 2 Section 2.205 Civil Penalties Paragraph 2.205(l)is amended to provide additional methods of payment, such as Automated Clearing House and credit cards, and to clarify that payments are to be made in U.S. funds to the U.S. Nuclear Regulatory Commission, t

Part 140 Section 140.7 Fees Paragraphs (a)(5) and (c) are amended to delete references to payment instructions. A new paragraph (d) is added to provide payment instructions, including clarification that payments are to be made in U.S. funds to the U.S. Nuclear Regulatory Commission and to provide additional methods of payments, such as Automated Clearing House and credit cards.

i 1-Part 170 Section 170.12 Payment of Fees 28

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I Authority: 31 U.S.C. 9701, 96 Stat.1051; sec. 301, Pub. L.92-314, 86 Stat. 222 (42 I U.S.C. 2201w); sec. 201, Pub. L. 93-4381,88 Stat.1242, as amended (42 U.S.C. 5841); sec. 205, Pub. L.101-576,104 Stat. 2842, (31 U.S.C. 901).

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6. In Section 170.12, paragraphs (g) and (h) are revised to read as follows:

6170.12 Payment of fees, i

l (g) Inspection fees. (1) Inspection fees will be assessed to recover full cost for each resident inspector assigned to a specific pia or facility. The fees will be assessed for all of the resident inspector's time, excluding leave, exeep;;;,et time spent by the resident inspector in y

support of activities at anothermsiter e h t!"-d ic 05 :5 : wh;ch the red-int MWr!s The hours wi billed at the appropriate hourly rate.establishedJn 10CFR-47040 W, g) - jfk W W Y # y G

( 6 % W '$ #~

yo (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 l

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 processing and issuance of a notice of violation or civil penalty.

(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 j 50

_ _ _ - . - _ - _ _ - - - - - - - - - - - - - - ------d

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[7590-01-P]

l

\

I NUCLEAR REGULATORY COMMISSION l 30 CFR Parts 2,140,170 and 171 i RIN: 3150-AF 83 Revision of Fee Schedules; 100% Fee Recovery, FY 1998 .

AGENCY: Nuclear Regulatory Commission.

l l

ACTlON: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending the licensing, l inspection, and annual fees charged to its applicants and licensees. The amendments are I

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 l 1 I (FY) 1998, less amounts appropriated from the Nuclear Waste Fund (NWF). The amount to be l

l' 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. I l

EFFECTIVE DATE: (60 days after publication in the Federal Register.) )

J 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 i i

I i

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_ Distribution:

OC R/F OC S/F EDO R/F MLesar, ADM OCFO/DAF SF (LF-1.13)

DOCUMENT NAME: g:\ proposed.98 fee n e = w .e ** 4 m. m. m m. w.: c . cooy . coo, .e,.en..ni,.neio.o,. e . co,y .,in .,,.cnm.ni,.ncio.o,. n . u co,y 0FFICE OCF0 l OCF0:DAF l ADM l OGC l NMSS l l

NAME GJackson.DDandois JTurdici ELHalman TBRothschild CJPaperiello l

DATE / /98 / /98 / /98 / /98 / /98 0FFICE NRR l OIP l OE l EDQ1 DCF0 CFO l l l NAME SCollins CRStoiber JLieberman JCaIN5 PRabideau JLFunches I DATE / /98 / /98 / /98 540/98 / /97  !

0FFICIAL RECORD COPY b)

V 10

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