ML20351A447

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Proposed Revisions to 10 CFR Parts 15, 170 and 171 on License, Inspection, Special Project and Annual Fees for Fiscal Year 2021
ML20351A447
Person / Time
Issue date: 02/22/2021
From: Jason Shay
NRC/OCFO/DB
To:
smh
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Download: ML20351A447 (9)
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February 22, 2021

  • *
  • IMPORTANT NOTICE * *
  • Please read this notice carefully. It may substantially impact the fees you are assessed by the NRC. Please submit any comments on the proposed fee rule changes within the 30-day comment period.

TO: ALL 12 CFR PARTS 9, 30, 40, 50, 52, 61, 70, 71, 72, 73, 76 AND 110 LICENSEES, APPLICANTS, REACTOR VENDORS, AND OWNERS GROUPS

SUBJECT:

PROPOSED REVISIONS TO 10 CFR PARTS 15, 170, AND 171 ON LICENSE, INSPECTION, SPECIAL PROJECT AND ANNUAL FEES FOR FISCAL YEAR 2021 The U.S. Nuclear Regulatory Commission (NRC) published a Notice of Proposed Rulemaking in the Federal Register for public comment on February 22, 2021, (86 FR 10459). The instructions for accessing the notice on the Internet are provided at the end of this notice.

The notice proposes revisions to the fee requirements of Title 10 of the Code of Federal Regulations (10 CFR) Part 15, Debt Collection Procedures, Part 170, Fees for Facilities, Materials, Import and Export Licenses, and Other Regulatory Services Under the Atomic Energy Act of 1954, as Amended and 10 CFR Part 171, Annual Fees for Reactor Licenses and Fuel Cycle Licenses and Materials Licenses, Including Holders of Certificates of Compliance, Registrations, and Quality Assurance Program Approvals and Government Agencies Licensed by the NRC. These proposed amendments are necessary to implement Public Law 115-439, the Nuclear Energy Innovation and Modernization Act (NEIMA) (42 U.S.C 2215). The NEIMA fee-related changes, effective October 1, 2020, include (1) repealing the prior fee-recovery framework and replacing it with a revised framework and (2) requirements to improve the invoice accuracy for service fees.

Effective October 1, 2020, NEIMA repealed Section 6101 of the Omnibus Budget Reconciliation Act of 1990, as amended (OBRA-90) (42 U.S.C. 2214) and put in place a revised fee-recovery framework for FY 2021 and subsequent fiscal years, requiring the NRC to recover, to the maximum extent practicable, approximately 100 percent of its total budget authority for the fiscal year, less the budget authority for excluded activities. For FYs 2005 through 2020, OBRA-90 required the NRC to recover approximately 90 percent of its budget authority for the fiscal year, less amounts for the activities excluded from fee recovery under OBRA-90 or other legislation, through fees. The 10 percent of the remaining budget authority not recovered through fees was historically referred to as fee-relief activities. In this proposed rule, the NRC would establish a revised fee-recovery framework, which would eliminate the 10 percent limit on fee-relief activities. Accordingly, the NRC would no longer provide a fee-relief credit (when the amount budgeted for fee-relief activities is less than the 10 percent threshold, which would have decreased annual fees for licensees) or assess a fee-relief surcharge (when the amount budgeted for fee-relief activities is greater than the 10 percent threshold, which would have increased annual fees for licensees) as part of the calculation of annual fees for each licensee fee class.

Under NEIMA, the NRC must recover, to the maximum extent practicable, approximately 100 percent of its annual budget, less the budget authority for excluded activities. Under Section 102(b)(1)(B) of NEIMA, excluded activities include any fee-relief activity as identified by the Commission, generic homeland security activities, waste incidental to reprocessing activities, Nuclear Waste Fund activities, advanced reactor regulatory infrastructure activities, Inspector General services for the Defense Nuclear Facilities Safety Board, research and development at universities in areas relevant to the NRCs mission, and a nuclear science and engineering grant program. In FY 2021, the fee-relief activities identified by the Commission are consistent with prior final fee rules and include Agreement State oversight, regulatory support to Agreement States, medical isotope production infrastructure, fee exemptions for non-profit educational institutions, costs not recovered from small entities under 10 CFR 171.16(c),

generic decommissioning/reclamation activities, the NRCs uranium recovery program and unregistered general licenses, potential U.S. Department of Defense Program Memorandum of Understanding activities (Military Radium-226), and non-military radium sites. In addition, for FY 2021, the Commission identified international activities, not including the resources for import and export licensing, as fee-relief activities to be excluded from the fee-recovery requirement.

The FY 2021 proposed fee rule based on the Consolidated Appropriations Act, 2021 (the enacted budget). The proposed fee rule reflects a total budget authority in the amount of

$844.4 million, a decrease of $11.2 million from FY 2020. As explained previously, certain portions of the NRCs total budget authority for the fiscal year are excluded from NEIMAs fee-recovery requirement under Section 102(b)(1)(B) of NEIMA. Based on the FY 2021 enacted budget, these exclusions total $123.0 million, consisting of $91.2 million for fee-relief activities;

$17.7 million for advanced reactor regulatory infrastructure activities; $11.7 million for generic homeland security activities; $1.2 million for waste incidental to reprocessing activities; and

$1.2 million for Inspector General services for the Defense Nuclear Facilities Safety Board.

After accounting for the exclusions from the fee-recovery requirement and net billing adjustments (i.e., for FY 2021 invoices that the NRC estimates will not be paid during the fiscal year, less payments received in FY 2021 for prior year invoices and current year collections made for the termination of one operating power reactor), the NRC must recover approximately

$708.8 million in fees in FY 2021. Of this amount, the NRC estimates that $185.9 million will be recovered through 10 CFR Part 170 service fees and approximately $522.9 million will be recovered through 10 CFR Part 171 annual fees.

In FY 2021, the explanatory statement associated with the Consolidated Appropriations Act, 2021, also includes direction for the NRC to use $35.0 million in prior-year unobligated carryover funds, including $16.0 million to fund the Integrated University Program. The NRC does not assess fees in the current fiscal year for any carryover funds because, consistent with the requirements of NEIMA, fees are calculated based on the budget authority enacted for the current fiscal year and fees would already have been assessed in the fiscal year in which the carryover funds were appropriated.

Listed below are the proposed policy changes and administrative changes to 10 CFR Parts 15, 170, and 171 that are included in the FY 2021 proposed fee rule.

FY 2021Policy Changes The NRC is proposing two policy changes:

1. Process for Disputing Errors in Invoices for Service Fees Section 102(d)(3) of NEIMA requires the NRC to modify regulations to ensure fair and appropriate processes to provide licensees and applicants an opportunity to efficiently dispute or otherwise seek review and correction of errors in invoices for service fees. The NRC is proposing requirements for a standard method for licensees and applicants to efficiently dispute or seek review and correction of errors in invoices. The proposed process is illustrated in the process map, NRC Form 529, Processing Dispute of Fees-For-Service Charges (ADAMS Accession No. ML20311A159). This proposed process follows the established method for licensees and applicants to submit requests for the review of fees assessed under 10 CFR Part 170 (ADAMS Accession No. ML20104C055). The NRC Form 529 will be available in the agencys electronic billing (eBilling) system, on the agencys public site, and can be found under ADAMS Accession No. ML20339A673. Standard use of an NRC form and amendments to the current regulations in 10 CFR 15.31 will increase efficiency by providing the licensees and applicants with clear guidelines and expectations for submitting a fee dispute. It will also eliminate ambiguity regarding the appropriate information needed for the NRC to consider and make a determination on a fee dispute.

In response to NEIMAs requirement that the NRC modify its regulations to provide licensees and applicants an opportunity to efficiently dispute or otherwise seek review and correction of errors in service fee invoices. The NRC proposes to revise its regulations in 10 CFR Part 15.

Specifically, the NRC is proposing revisions to 10 CFR 15.31, Disputed debts, with conforming amendments in 10 CFR 15.37, Interest, penalties, and administrative costs, 10 CFR 15.53, Reasons for suspending collection action, and changing 10 CFR 170.51, Right to review and appeal of prescribed fees, to Right to dispute assessed fees. The NRC also proposes to add a new regulation, 10 CFR 171.26, Right to dispute assessed fees, to 10 CFR Part 171. These proposed changes outline the interactions between the submitter and the NRC. The proposed process will enhance understanding of the dispute process by setting out the process for submitting a fee dispute, the stages of the decisionmaking process while the dispute is under review, and the manner by which the NRC will notify a debtor after it makes a final determination on a dispute. Additionally, the proposed revisions provide consistent terminology to differentiate fee disputes under 10 CFR Part 15 from fee exemptions under 10 CFR Parts 170 and 171.

2. Assessment of annual fees for future 10 CFR Part 50 non-power production or utilization facility licensees and for small modular reactor licensees The NRC proposes to amend 10 CFR 171.15(a) so that the assessment of annual fees commences after future non-power production or utilization facility (NPUF) licensees have successfully completed startup testing and have provided written notification to the NRC. In addition, the NRC is proposing to rename the research and test reactors fee class to the non-power production and utilization facility fee class, which would include currently operating research and test reactors and future NPUFs, such as non-reactor NPUF technologies. Finally, the NRC is proposing to amend 10 CFR 171.15(e) so that the assessment of annual fees for a small modular reactor (SMR) licensee commences after the successful completion of power ascension testing and the licensee provides written notification to the NRC. These proposed policy changes are consistent with the FY 2020 final fee rule that amended the timing of the assessment of annual fees for future 10 CFR Part 50 power reactors and 10 CFR Part 52 COL holders.

Currently, 10 CFR 171.15(a), requires the NRC to assess annual fees to a test or research reactor (excluding test or research reactors exempted under 10 CFR 171.11(b)) when the NRC authorizes the licensee to use nuclear materials (i.e., begin operating the reactor in accordance with its license). The NRC has not established a policy for assessing 10 CFR Part 171 annual fees to future non-reactor NPUF licensees (e.g., SHINE Medical Technologies, LLC (SHINE));

at this time, the NRC currently assesses only 10 CFR Part 170 service fees to prospective applicants for preapplication activities, construction permit holders (i.e., SHINE and Northwest Medical Isotopes, LLC (NWMI)) and applicants for operating licenses (i.e., SHINE) for commercial NPUFs. While the NRCs fee regulations do not have a fee class for future non-reactor NPUF licensees, the NRC historically has included budgeted resources for NWMI and SHINE within the research and test reactor fee class. The budgeted resources for NWMI and SHINE not recovered in 10 CFR Part 170 service fees previously were included in fee-relief.

These resources for the development of a medical isotope production infrastructure are now excluded from the fee-recovery requirement under NEIMA as a fee-relief activity identified by the Commission.

In anticipation that the NRC could issue an operating license in the future, the NRC is proposing to assess annual fees under 10 CFR 171.15(a) to non-reactor NPUFs when they have notified the NRC of the successful completion of startup testing. As discussed previously, the NRC is also proposing to rename the research and test reactors fee class to the non-power production and utilization facility fee class to account for new NPUF technologies not included in the research and test reactors fee class. This rule uses the term non-power production or utilization facility to have the same meaning as the definition used in SECY-19-0062, Final Rule: Non-power Production or Utilization Facility License Renewal (ADAMS Accession No. ML18031A000), dated June 17, 2019.1 The definition would include production or utilization facilities, licensed under 10 CFR 50.21(a), 10 CFR 50.21(c), or 10 CFR 50.22, as applicable, that are not nuclear power reactors or production facilities within the meaning of paragraphs (1) and (2) of 10 CFR 50.2, which defines Production facility. This definition includes currently operating and future research and test reactors and proposed medical radioisotope facilities that would be licensed under 10 CFR Part 50. As such, non-reactor NPUF licensees, such as SHINE, would be included in the same annual fee class as currently operating research and test reactors that pay 10 CFR Part 171 annual fees. This proposed approach is consistent with the current approach of combining limited numbers of similar facilities into a single annual fee category, where test reactors (of which only one is currently operational) are assessed the same 10 CFR Part 171 annual fees as research reactors. In addition, the NRC expects that NPUF facilities will request that a single license under 10 CFR Part 50 authorize the operation of multiple utilization and/or production facilities. Based on the number of facilities authorized to operate under a single license, the number of staff hours dedicated to licensing and oversight activities for these facilities is not expected to differ significantly compared to those for the current operating fleet of NPUFs. Furthermore, stakeholders have previously supported this 1 The NPUF final rule would also revise the definition of research reactor in 10 CFR 170.3 and 10 CFR 171.5 to conform to other definitions in 10 CFR chapter I. The NRC is not proposing to change the definition of Research reactor in the specific exemption for Federally-owned and State-owned research reactors in 10 CFR 170.11(a)(9) or 10 CFR 171.11(b)(2). The current definition in 10 CFR 171.11(b)(2) is based on the language of OBRA-90. Further, a substantively similar definition of research reactor was included in the provisions of NEIMA that relate to the NRCs fee recovery structure. Changing the definition of research reactor in 10 CFR 171.11(b)(2) would therefore be inconsistent with NEIMA.

approach regarding the assessment of 10 CFR Part 171 annual fees for future NPUFs.

Therefore, a single annual fee would be appropriate even where an NPUF licensee has multiple facilities operating under a single 10 CFR Part 50 license.

SMR licenses can be issued under 10 CFR Part 50 or 10 CFR Part 52. Currently, 10 CFR 171.15, requires the NRC to assess annual fees to a 10 CFR part 50 SMR licensee upon issuance of an operating license, or to a 10 CFR Part 52 SMR COL holder after the Commission has made the finding under 10 CFR 52.103(g) for all licenses held for an SMR site.

The annual fee would be determined using the cumulative licensed thermal power rating of all SMR units and the bundled unit concept. For a given site, the use of the bundled unit concept is independent of the number of SMR plants, the number of SMR licenses issued, and the sequencing of the SMR licenses that have been issued. There are currently no operating SMRs; therefore, the NRC has not yet assessed an annual fee for this type of licensee.

The NRC recognizes that, after the issuance of an operating license under 10 CFR Part 50 for NPUFs and SMRs, or a COL and 10 CFR 52.103(g) finding under 10 CFR Part 52 for SMRs, fuel or targets (or both) must be loaded and startup testing (for NPUFs) and power ascension testing (for SMRs) must be completed before the facility begins full licensed operation. As discussed in the statement of considerations for the FY 2020 final fee rule, 10 CFR Part 52 COLs for power reactors contain a standard license condition that requires the submittal of written notification to the NRC upon successful completion of power ascension testing.

Therefore, the NRC proposes to incorporate a similar license condition into all future 10 CFR Part 50 operating licenses for NPUFs and SMRs, and 10 CFR Part 52 COLs for SMRs to ensure that the licensee will promptly notify the NRC of the successful completion of startup testing or power ascension testing. The proposed annual fee assessment for future NPUFs and SMR licenses under 10 CFR Part 50, and SMRs under 10 CFR Part 52, would begin on the date of the licensees written notification of the successful completion of startup testing or power ascension testing.

Accordingly, the NRC proposes to amend 10 CFR 171.15(a) and 10 CFR 171.15(e) so that annual fees commence upon written notification to the NRC of successful completion of startup testing and power ascension testing, rather than upon issuance of the operating license for 10 CFR Part 50 NPUFs and SMRs, or issuance of the 10 CFR 52.103(g) finding for 10 CFR Part 52 COL holders for SMRs, but upon written notification to the NRC of successful completion of startup testing and/or power ascension testing. The NRC finds this proposed change to 10 CFR Part 171 to be reasonable, fair, and equitable, and to be supported by the public comments the NRC received on PRM-171-1 and on the FY 2020 proposed rule. The NRC also proposes conforming changes to revise 10 CFR 170.3, Definitions, 10 CFR 171.3, Scope, 10 CFR 171.5, Definitions, and 10 CFR 171.17, Proration.

FY 2021Administrative Changes The NRC is proposing to make six administrative changes in the FY 2021 proposed fee rule:

1. Change Small Entity Fees As stated in SECY-08-0174, Fiscal Year 2009 Proposed Fee Rule and Advance Rulemaking for Grid-Appropriate Reactor Fees, dated November 7, 2008 (ADAMS Accession No. ML083120518), the NRC determined that the maximum small entity fee should be adjusted biennially using a fixed percentage of 39 percent applied to the prior 2-year weighted average of materials users fees for all fee categories which have small entity licensees. The 39 percent was based on the small entity annual fee for 2005, which was the first year the NRC was required to recover only 90 percent of its budget authority. This methodology remains in place; however, the NRC does also consider whether or not implementing an increase will have a disproportionate impact on the NRCs small licensees when compared to other licensees.

Therefore, the increase for the upper and lower tier fees were capped at a 21 percent increase.

For the FY 2021 proposed fee rule, the NRC conducted a biennial review of small entity fees to determine whether the NRC should change those fees. The NRC used the fee methodology, developed in FY 2009, which applies a fixed percentage of 39 percent to the prior 2-year weighted average of materials users fees, when performing its biennial review. Based on this methodology and as a result of the FY 2021 biennial review, the NRC is now proposing to increase the upper tier small entity fee from $4,500 to $4,900 and increase the lower tier fee from $900 to $1,000.

This would constitute a 9 percent and 11 percent increase, respectively. The NRC believes these fees are reasonable and provide relief to small entities while at the same time recovering from those licensees some of the NRCs costs for activities that benefit them.

2. Amend 10 CFR 170.1, Purpose, to change the reference to the Independent Offices Appropriation Act, 1952 The NRC proposes to amend 10 CFR 170.1 to replace the of after Independent Offices Appropriation Act with a comma to make the reference to the legislation consistent with references in other NRC contexts.
3. Amend 10 CFR 170.3, Definitions, to eliminate definitions for Balance of plants, Nuclear Steam Supply System, and Reference systems concept The NRC proposes to amend 10 CFR 170.3 to eliminate definitions for Balance of plants, Nuclear Steam Supply System, and Reference systems concept. These definitions are no longer applicable in 10 CFR Part 170. These definitions were added in the FY 1977 final fee rule (43 FR 7210; March 23, 1978) to resolve issues concerning assessing fees for balance of plant reviews, related to a previous fee category (category A.4.b in the table at 10 CFR 170.21 for standardized design-reference systems concept), that was not subject to full cost recovery.

In the FY 1991 final fee rule, the NRC amended 10 CFR Parts 52 and 170 to assess licensing fees for the review of standardized reactor designs, which would be subject to full cost recovery (56 FR 31472; July 10, 1991). This proposed amendment to eliminate these definitions will not impact the NRCs assessment of 10 CFR Part 170 fees for service.

4. Remove footnote 6 to the table in 10 CFR 170.21, and footnote 12 to the table in 10 CFR 170.31.

The NRC proposes to remove footnote 6 to the table in 10 CFR 170.21 and footnote 12 to the table in 10 CFR 170.31 because (1) Congress has not enacted legislation that would exclude import and export activities from the fee-recoverable budget in FY 2021; and (2) in accordance with NEIMA, for FY 2021, the NRC identified international activities as fee-relief activities, but it did not include resources for import and export licensing. The NRC is therefore proposing to charge fees for import and export licensing actions.

5. Amend 10 CFR 171.5, Definitions, to replace the reference in Budget authority.

The NRC proposes to amend the definition of budget authority to replace the reference to Public Law 101-508 (i.e., OBRA-90) with a reference to Public Law 115-439 (i.e., NEIMA).

Effective October 1, 2020, NEIMA repealed Section 6101 of OBRA-90 and put in place a revised fee recovery framework, requiring the NRC to recover, to the maximum extent practicable, approximately 100 percent of its annual budget, less the budget authority for excluded activities.

6. Amend 10 CFR 171.11(c), Exemptions.

The NRC proposes to revise 10 CFR 171.11(c) to change the or in the section to and. This proposed change would accurately reflect that even when an exemption is in the public interest, the NRC cannot grant the exemption unless it is authorized by law. This proposed change would also harmonize 10 CFR 171.11(c) with 10 CFR 170.11(b), which uses and.

This proposed change would not alter the NRCs fee exemption policy.

Update on the Fees Transformation Initiative In the Staff Requirements Memorandum, dated October 19, 2016, (ADAMS Accession No. ML16293A902) for SECY-16-0097, Fee Setting Improvements and Fiscal Year 2017 Proposed Fee Rule, (ADAMS Accession No. ML16194A365), the Commission directed the staff to accelerate its process improvements for setting fees, including the transition to an eBilling system. In addition, the Commission directed the staff to begin the fees transformation activities listed in SECY-16-0097 as Process Changes Recommended for Future Consideration FY 2018 and Beyond. The NRC has completed 39 of the 40 fees transformation activities, including the full implementation of an electronic billing system.

In October 2019, the agency released its eBilling system. This public facing, web-based application provides licensees with immediate delivery of NRC invoices, customizable e-mail notifications, capability to view and analyze invoice details, and access to the U.S. Department of the Treasury systems to pay invoices. The eBilling application provides licensees greater transparency and has increased applicant and licensee confidence in the assessed fees and charges. Since the NRC released the eBilling application, 341 licensees have been enrolled and 764 dockets are now available in the application.

The one fees transformation activity yet be to completed is the rulemaking to update the NRCs small business size standards in 10 CFR 2.810, NRC size standards. In FY 2020, the NRC conducted a survey of materials licensees to collect relevant data to help determine the need for changes to the NRCs small business size standards in 10 CFR 2.810. In addition, the NRC considered changes in the small business size standards published by the Small Business Administration. On December 7, 2020, the staff submitted SECY-20-0111, Rulemaking Plan to Amend the Receipts-Based NRC Size Standards, to the Commission (ADAMS Accession No. ML20268B327) with the staffs recommendations for amending the NRCs receipts-based size standards. The NRC will continue to include updates on this rulemaking activity within the FY 2021 and FY 2022 fee rules to ensure that affected licensees are adequately informed. The public can track all NRC rulemaking activities, including the rulemaking on the NRCs size standards, on the NRCs Rulemaking Tracking and Reporting system at https://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/active/RuleIndex.html, or by Docket ID NRC-2014-0264 at http://www.regulations.gov.

For more information, see the fees transformation accomplishments schedule, located on the NRCs license fees web page at: https://www.nrc.gov/about-nrc/regulatory/licensing/fees-transformation-accomplishments.html.

Public Comment Period The comment period for the proposed rule expires 30 days after the publication date in the Federal Register. Please include Docket ID NRC-2018-0292 in the subject line of your comments. Comments submitted in writing or in electronic form will be made publicly available.

Because your comments will not be edited to remove any identifying or contact information, the NRC cautions you against including any information in your submission that you do not want to be publicly disclosed. You may submit comments by one of the following methods:

  • Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
  • E-mail comments to: Rulemaking.Comments@nrc.gov. If you do not receive a reply e-mail confirming that we have received your comments, contact us directly at 301-415-1677.

Also, please note that the NRC does not routinely mail the proposed or the final rule to licensees. However, the NRC will send a copy of the proposed or final rule to any licensee or other person upon specific request. To request a copy, contact the Division of Budget, License Fee Policy Team, Office of the Chief Financial Officer, on 301-415-7341. In addition to publication in the Federal Register, the rule will be available online in the NRCs Library at https://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, which provides text and image files of the NRC's public documents.

If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRCs PDR reference staff at 1-800-397-4209, 301-415-4737, or by e-mail to pdr.resource@nrc.gov.

Sincerely, Jason E. Shay, Budget Director Division of Budget Office of the Chief Financial Officer

ML20351A447 *with edits CFO-0009 OFFICE OCFO/DOB/LFPT OCFO/DOB/LFPT OCFO/DOB/LFPT NAME JJacobs WBlaney CGalster DATE 01/14/2021 01/14/2021 01/14/2021 OFFICE OCFO/DOB/LFPT OCFO/DOB OCFO/DOB NAME ARossi RAllwein JShay DATE 01/19/2021 02/02/2021 02/04/2021

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