ML23153A138

PR-170, 171 - 53FR24077 - Revision of Fee Schedules

ML23153A138
Person / Time
Issue date:	06/27/1988
From:	NRC/SECY
To:
References
53FR24077, PR-170, PR-171
Download: ML23153A138 (1)

Text

ADAMS Template: SECY-067 DOCUMENT DATE: 06/27/1988 TITLE: PR-170, 171 - 53FR24077 - REVISION OF FEE SCHEDULES CASE

REFERENCE:

PR-170, 171 53FR24077 KEYWORD: RULEMAKING COMMENTS Document Sensitivity: Non-sensitive - SUNSI Review Complete

PAGE 1 OF 2 STATUS OF RULEMAKING RECORD 1 OF 1 PROPOSED RULE: PR-170,171 RULE NAME: REVISION OF FEE SCHEDULES PROPOSED RULE FED REG CITE: 53FR24077 PROPOSED RULE PUBLICATION DATE: 06/27/88 NUMBER OF COMMENTS: 33 ORIGINAL DATE FOR COMMENTS: 07/27/88 EXTENSION DATE: I I FINAL RULE FED. REG. CITE: 53FR52632 FINAL RULE PUBLICATION DATE: 12/29/88 OTES ON: COMMISSION APPROVED AMENDMENTS BY A 5-0 VOTE (SRM-M881215). INTERI TA~US M RULE ISSUED ON 8/8/88. FILE LOCATED ON Pl.

OF RULE PRESS PAGE DOWN OR ENTER TO SEE RULE HISTORY OR STAFF CONTACT PRESS ESC TO SEE ADDITIONAL RULES OR (S) TO STOP DISPLAY PAGE 2 OF 2 HISTORY OF THE RULE PART AFFECTED: PR-170,171 RULE TITLE: REVISION OF FEE SCHEDULES PROPOSED RULE PROPOSED RULE DATE PROPOSED RULE SECY PAPER: 88-149 SRM DATE: 06/16/88 SIGNED BY SECRETARY: 06/20/88 FINAL RULE FINAL RULE DATE FINAL RULE SECY PAPER: 88-322 SRM DATE: 12/23/88 SIGNED BY SECRETARY: 12/22/88 STAFF CONTACTS ON THE RULE CONTACTl: LEE HILLER, ASSISTANT CONTROLL MAIL STOP: MB 12109 PHONE: 492-7351 CONTACT2: MAIL STOP: PHONE:

PRESS PAGEUP TO SEE STATUS OF RULEMAKING PRESS ESC TO SEE ADDITIONAL RULES OR (S) TO STOP DISPLAY

DOCKET NO. PR-170,171 (53FR24077}

In the Matter of REVISION OF FEE SCHEDULES DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT

- 06/21/88 06/20/88 FEDERAL REGISTER NOTICE - PROPOSED RULE 07/22/88 07/19/88 COMMENT OF LIXI, INC. (ROBERT J. SAVINI, EXEC . V. P.) ( 1) 07/25/88 07/19/88 COMMENT OF BETHLEHEM STEEL CORPORATION (T. E. KOBRICK} ( 2) 07/25/88 07/22/88 COMMENT OF TRANSNUCLEAR, INC.

(BILL R. TEER, SENIOR V.P.} ( 3) 07/25/88 07/25/88 COMMENT OF DEPARTMENT OF ENERGY (DELBERT F. BUNCH) ( 4) 07/26/88 07/18/88 COMMENT OF UNIVERSAL TESTING COMPANY (BRENT MOCKLI, RADIATION SAFETY OFF.} ( 5) 07/26/88 07/19/88 COMMENT OF MASSACHUSETTS INSTITUTE OF TECHNOLOGY (FRANK MASSE, CHP} ( 6) 07/26/88 07/22/88 COMMENT OF HEALTH PHYSICS ASSOCIATES, INC.

(A. LAMASTRA, PRESIDENT} ( 7) 07/26/88 07/21/88 COMMENT OF ADVANCED NUCLEAR FUELS CORPORATION (C. W. MALODY, MANAGER} ( 8) 07/27/88 07/27/88 COMMENT OF NEWMAN & HOLTZINGER, P.C.

(HAROLD F. REIS) ( 9) 07/27/88 07/27/88 COMMENT OF SHAW, PITTMAN, POTTS & TROWBRIDGE (JAYE. SILBERG, P.C.} ( 10}

07/27/88 07/25/88 COMMENT OF SACRAMENTO MUNICIPAL UTILITY DISTRICT (DAVIDS. KAPLAN, GENERAL COUNSEL) ( 11}

07/27/88 07/26/88 COMMENT OF DETROIT EDISON (L. S. GOODMAN, DIRECTOR) ( 12) 07/27/88 07/25/88 COMMENT OF PUBLIC SERVICE COMPANY OF COLORADO (R. 0. WILLIAMS, JR.} ( 13)

DOCKET NO. PR-170,171 (53FR24077)

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 07/28/88 07/27/88 COMMENT OF COMBUSTION ENGINEERING (A. E. SCHERER) ( 14) 07/28/88 07/27/88 COMMENT OF ELEVEN POWER REACTOR LICENSEES (JOSEPH B. KNOTTS, JR., ESQUIRE) ( 15) 07/28/88 07/26/88 COMMENT OF YANKEE ATOMIC ELECTRIC COMPANY (DONALD W. EDWARDS) ( 16) 07/28/88 07/28/88 COMMENT OF G. E. NUCLEAR ENERGY (ROBERT C. MITCHELL) ( 17) 07/28/88 07/22/88 COMMENT OF BABCOCK &WILCOX OWNER'S GROUP (WALTERS. WILGUS) ( 18) 07/29/88 07/25/88 COMMENT OF INDIANA MICHIGAN POWER COMPANY (MILTON P. ALEXICH) ( 19) 07/29/88 07/27/88 COMMENT OF THE TOLEDO EDISON COMPANY (DONALD C. SHELTON) ( 20) 08/01/88 07/23/88 COMMENT OF CHOATE SYMMES HEALTH SERVICES (JEANNE M. ELIA, R.T.R.) ( 21) 08/01/88 07/28/88 COMMENT OF SOUTHERN CALIFORNIA EDISON COMPANY (M. 0. MEDFORD) ( 22) 08/01/88 07/27/88 COMMENT OF FLORIDA POWER CORPORATION (K. R. WILSON, MANAGER) ( 23) 08/01/88 07/26/88 COMMENT OF MARLBOROUGH HOSPITAL (EARL GABOR) ( 24) 08/02/88 07/25/88 COMMENT OF HOUSTON LIGHTING & POWER COMPANY (J. H. GOLDBERG) ( 25}

08/02/88 08/01/88 COMMENT OF ALABAMA POWER CORP & S.C. ELECTRIC & GAS (JOSEPH B. KNOTTS, JR., ESQUIRE) ( 26) 08/03/88 07/27/88 COMMENT OF DUKE POWER COMPANY (HAL B. TUCKER) ( 27) 08/03/88 07/27/88 COMMENT OF BOSTON EDISON (RALPH G. BIRD} ( 28) 08/08/88 08/04/88 COMMENT OF ARKANSAS POWER & LIGHT COMPANY (DAN R. HOWARD) ( 29}

08/09/88 08/08/88 Interim Rule on Revision of Fee Schedule 08/11/88 08/03/88 COMMENT OF CARLE. CASSIDY, M. D. ( 30) 08/15/88 08/11/88 COMMENT OF STATE OF ILLINOIS (TERRY R. LASH, DIRECTOR} ( 31}

DOCKET NO. PR-170,171 (53FR24077)

DATE DATE OF TITLE OR DOCKETED DOCUMENT DESCRIPTION OF DOCUMENT 08/16/88 08/12/88 COMMENT OF NUCLEAR FUEL SERVICES, INC. (NFS (J. A. LONG, GENERAL MANAGER) ( 32) 12/28/88 12/22/88 FEDERAL REGISTER NOTICE - FINAL RULE 02/28/89 07/26/88 COMMENT OF U.S. COUNCIL FOR ENERGY AWARENESS (DIXON HOYLE) ( 33)

US. Councillor Energy Awareness Suite400 1776 I Street,N. W

• ag FEB 2B ~S1g1U:jc 20006-2495

' '1202) 293-0770 Dixon Hoyle Pro1ect Manager. Nuclear Fuel Cycle OF ~\ . 1.

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July 26, 1988 The Secretary of the Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

Subject:

10 CFR Parts 170 and 171 USCEA has provided copies of the Nuclear Regulatory Commission's Federal Register Notice (FRN) of June 27, 1988, 10 CFR Parts 170 and 171: "Revision of Fee Schedules" to members of its Transportation and High-Level Waste Task Forces for possible consensus comment.

Because of the limited number of individual responses received from members, we are unable to comment on behalf of the two task forces. However, the following individual comments are being provided:

The proposed rule does not appear to address the issue of fair sharing of costs among a "first-of-a-kind" applicant and others who might later apply for a similar license. Under these circumstances, the NRC's full costs for generic "regulatory research" might be quite substantial. If these costs were all passed on to the initial applicant, subsequent applicants would obtain an inequitable benefit at the expense of the former. Either a maximum charge for such research might be negotiated between NRC and the initial applicant or, alternatively, such costs reallocated among subsequent applicants who benefited from this expenditure and appropriate refunds made to prior applicants on the basis of their earlier charges.

It is noted that the Commission has twice formally rejected removal of the ceiling for review of topical reports. In its FRN of February 21, 1978, the basis for this decision was that it "... believes that the submission of topical report requests should not be discouraged by the possibility of an open-ended fee". More recently, in a May 21, 1984 FRN, the Commission found that "... the upper limit of $20,000 for a topical report review is fair and equitable and should not discourage the submission of such reports". Since these reasons would still appear to apply, the NRC may wish to reconsider its current plan to remove the ceiling charge for topical report review.

This opportunity to comment on the proposed rule is appreciated.

Sincerely, APR O1 1989

&E_kf}_o~ledged_b_y ~d. -~ - --....-.:, -,,-:---.,.,.~.,,._

i'!

Dixon B. Hoyle

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• SiR F. OF THI:

o:: THE COMJ-A/S Ooi::ur., ~, t tiJ;t/tt

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[7590-01]

• ss n£c 2s I\ 9 *.os NUCLEAR REGULATORY COMMISSION 10 CFR Parts 170 and 171 Revision of Fee Schedules AGENCY: Nuclear Regulatory Comnission.

ACTION: Final rule. I I

SUMMARY

The Nuclear Regulatory Conmission (Conmission or NRC) is amending its regulations by revising its fee schedules contained in 10 CFR Parts 170 and 171.

The revised fee schedules will result in those power reactor, fuel cycle facility and materials applicants and licensees requiring the greatest expendi-ture of NRC resources paying the greatest fee~. This pennits NRC to more compl~tely recover under 10 CFR Part 170 costs incurred for identi fiable ser-vices for power reactor, fuel cycle facility and major materials applicants and licensees. This action also implements fee legislation enacted by Congress I

• in Cecamber 1987. All applicants and licensees currently subject to fees under 10 CFR Parts 170 and 171 are affected by this rule.

~Q,J,v,u1"a ~0 I t '11 '1 EFFECTIVE DATE: (3Q says frem pwblieation).

L J. ~. NUUF.AR R*.GUt.ATORY COMMI SSIC)lj 0OCl<ETING & SETWICE SECTION OFF :CE OF THE SECRET ARY OF THE COMMISSION Doc 1ment Statistics 1

Postmark Date _ _/ij_£..__ _ _ __ __

Copies Received )

Add' I Copies Reproduced E

iaeJ:l*I Oistribution LN

/JJ.J/'l .R J jJJ' II, J/,,

ADDRESSES: Copies of the written public comments are available for public inspection and copying for a fee at the NRC Public Document Room at 2120 L Street, NW., Washington, DC, in the lower level of the Gelman Building.

FOR FURTHER INFORMATION CONTACT: Lee Hiller, Assistant Controller, U.S.

Nuclear Regulatory Commission, Washington, DC 20055, Telephone: 301-492-7351.

- SUPPLEMENTARY INFORMATION:

I. Background.

I II. Responses to Comments.

III. Changes Included in the Final Rules.

e IV. Section-by-Section ~nalysis.

V. Environmental Impact: Categorical Exclusion.

VI. Paperwork Reduction Act Statement.

VII. Regulatory Analysis.

VIII. Regulatory Flexibility Certification.

IX. Backfit Analysis.

X. List of Subjects.

I. Background On June 27, 1988 (53 FR 24077-24093), the Conmission published in the Federal Register a notice of proposed rulemaking for revisions to 10 CFR Part 170 ( 11 Fees for Faci 1i ties and Materials Licensees and Other Regulatory Services *** 11 ) and Part 171 ("Annual Fees for Power Reactor Operating Licenses"). This action was necessary for the Conmission to update the current fee schedules in Part 170 and to implement the requirements of Section 5601 of the Omnibus Budget Reconciliation Act of 1987, as signed into law on December 22, 1987 (Pub. L. 100-203). Section 5601 amended Section 7601 of the Consolidated Omnibus Badget Reconciliation Act of 1985 (COBRA - Pub. L.99-272). which requires the Conm1-ssioi1 to collect annual charges from its licen*s ees. As discussed in the notice of proposed rulemaking published on June 27, 1988, the amendment requires the NRC to collect under 10 CFR Parts 170 *,

and 171, as we 11 as under other provisions of 1aw* not 1ess than 45 percent of the Conmission's budget for each of Fiscal Years 1988 and 1989 (Option !).

The proposed rule also sought comments on a second option to not change 10 CFR Part 170, but only raise the annual fees under 10 CFR Part 171 to reach the 45 percent mandate of Pub. L. 100-203 for FY 1988. On August 12,

, 1988, the Commission published an interim final rule for 10* CFR Part 171 (S! FR 30423) applicable to collections for FY 1988 based upon the second option. The interim rule increased collections from 33 percent to 45 percent of the Commission s FY 1988 budget. Adjusted invoices based on the interim I

- rule were sent to reactor licensees on August 16, 1988.

As discussed in the interim rule, the Commission will proceed with option 1 rather than option 2 as* a 1ong-term rule for annua 1 fees. The method for assessing annu~l fees in thi~ final rule presents a more equitable distri-bution ?mong the licensed nuclear power reactors of the amount needed to be collected by taking into account the kind of reactor, its location and other considerations in relation to the generic research and other costs associated with power reactor regulation. Under the revised rule, those who require the larger expenditure of NRC resources will pay the larger fees.

II. Responses to Comments The Conmission received thirty-two (32) letters commenting on the proposed I'*

rule. Twenty 'letters were from persons mainly concerned with Part 50 facil i-ties and twelve conmented on fees for materials licenses.*

The conments fell into the following categories:

Part 170 Conunents:

1. Removal of ceilings.

2. Removal of routine inspection frequencies.

3. Fees for standardized design review * .

4. Disparity in certain materials fee categories.

Part 171 Comments:

1. Legality of fees.

2. Allocate costs to alJ persons.

3. Exclude-costs serving an independent public benefit.

4. Base fees on specific identifiable services.

5. Exclude research until NRC acts on that research.

6. Include fines, penalties, and interest in fee collections.

7. Other Comments.

The Commission's responses to the coITJT1ents are as follows:

CoITJT1ents on Part 170

1. Removal of cei 1i ngs for reactor and major fuel cycle p_ermi ts, l 1-censes, amendments* reactor related topi ca 1 reports and services;* and for transportation cask packages and shipping containers. Cornmenters I mairi con-cern about the removal of ceilings for applications and other services is that '

I.

it removes the predictability of costs for budgeting purposes. In the area of topical reports, commenters*were concerned that it would discourage partic-ipation in the topical report program as well as defeat the overall objective of encouraging new and improved predictive models and products.

Response: Ceilings are being removed beca-use the Corrmission strongly supports the concept that those requiring the greatest expenditure of NRC resources should pay the greatest fees. Ceilings contradict that objective. '1 Appendices A and B that were included in the proposed rule of June 27, 1988 (53 FR 24092 and 24093), are non-binding scherlu1es of estimated fees which may still be used for planning purposes in the absence of ceilings and provide adequate information for planning purposes. The upper range in these

- 7 ..,

schedules would only be increased slightly for FY 1989 as a result of using FY 1989 budget costs which changed the hourly rate from $80 (based on FY 1988 budget} to $86 for FY 1989. With respect to topical report reviews, the Commission finds no compel 1i ng argument to justify retaining a ceiling since those who request reviews of topical reports that require considerable staff work should bear their share of the review costs. The Commission recognizes, however, that there may be some topical reports that are of particular importance and use to the NRC. Therefore, as a matter of agency po 1icy, the NRC may, upon its own initiative or at the request of the applicant, exempt a11 or part of the topical report fee pursu.ant to § 170.ll(b)(l}.

2. Removal of routine inspection frequency.

Most materials commenters are concer-ned that the *removal of the frequency for routine inspection~ will take away. their ability to predict what they should budget for inspection fees and create a potential for more frequent inspections than are needed.

Response: TJ,e Commission's routine inspection program is a structured e program to _assure that licensees comply. with their license conditions and Commission regulations and standards to the extent that the health and safety of the company employees and public are not endangered. As long as a licen-see's operations are in compliance with the NRC-issued license, regulations, and standards, the* frequency of inspections is not generally expected to be more frequent than what was stipulated in the-previous regulation. Therefore, from a budgeting standpoint, if a licensee operates in conformance with its license and the Commission's regulations and standards, the predictability for

- 8 inspection fee budget costs remains essentially unchanged.

3. Fees for standardized qesign. Nuclear power industry comrnenters questioned the Conmission's proposal to defer fees for review of standardized reference designs until referenced by an applicant, or at the end of 5 years (10 years if a design is certified) after design approval, whichever comes first. A few commenters felt that fees should not be charged or should be waived for standardized design reviews to remove any disincentive for the standardization program and what could poss*ibly be unusually extensive costs as a result of the review being a 11 fi rst-of-a*-kind 11 that might require extensive safety reviews.

I I

Response: The Commission's decision to defer fees for standard reference design reviews is based upon a balancing of policy considerations. On the one hand, it is clearly the policy of the Government, and the intent of the Congress, that the Commission collect fees for services rendered to applicants.

Thus, standard reference design reviews are not to be perfonned free of charge. On the other hand, ther~ is a sound and persuasive public policy need to avoid a disincentive to the submittal of standard designs* by vendors incorporating the best safety features available for a future generation of reactors. For years, the Comrnission has supported the use of standard designs (see, ~.g., 10 CFR Part 50, Appendix 0, and 10 CFR 2.110). On balance, the Commission believes that the deferral of fees for standard design reviews is a reasonable compromise that se.rves the public interest. Accordingly, the

Conmi ssion wi 11 retain its proposed treatment of fees for standard reference designs.

4. Disparity in certain materials fee categories. Two materials licen-sees questioned why the license and inspection fees in certain areas are higher when compared with other areas.

Response

materials licenses is outdated and needs revision. For example, the labor rates (staff hours and fees applied) used in calculating fees are based on The NRC recognizes that a part of the current Part 170 fee schedule for data that is several years old. The NRC has detennined that this is not the appropriate rulemaking to make* the necessary adjustments. The NRC contemplates initiating a rulemaking on this issue next year.

Part 171 Comments The Conmission notes that the rulemakfng to which the following comments -

are again addressed is of a very .limited scope with respect to Part 171. The

• rulemaking adds two new definitions to which no commen-ts were addressed,* ft changes the percent of recovery from 33 percent of the Commission's budget to at least 45 percent, enters a more refined allocation of the annual fee among different classes of power reactors, and el imin.ates the provision for refunds of collections in excess of 45 percent. The Commission received some corrunents

that go beyond these limited subjects and are therefore not relevant to this rulemaking. Nonetheless, the Commission is responding to them. The response to comments beyond the scope of the rulemaking should not, however, be taken as an admission by the Commission that the issues raised are again open to challenge.

Responses to these comments are seen as a matter of courtesy to the comnenters and not as reopening these issues to further litigation. These comments and the responses thereto are:

1. Legality of fees. Several commenters, in particular law firms representing operators of nuclear power reactors,* commented on issues of a legal nature.

I I

Re,ponse. These comments for the most part repeated comments addressed to the first issuance of 10 CFR Part 171 (final rule issued September 18, 1986; 51 FR 33224) promulgated to implement Section 7601 of the Consolidated Omnibus Budget Reconciliation Act of 1985. That rule was challenged and upheld in its entirety in florida Power & Light Co. et al. v. United States, 846 F.2d 765 (D.C.Cir. 1988). A petition for ~rit ~f certiora;i challenging that decision is pending in the _Supreme Court (Florida Power & Light Co. v. United States, No.88-234).

I**

2.

• Allocation of costs. Some commenters stated that annual fees should be levied on all persons such as materials licensees receiving services from the Cammi s s ion.

Response. Congress provided the Corrmission with the discretion to deter~

mine which categories of licensees or other persons should be charged an annual fee by the Commission. The Corrmission's decision not to charge materials li-censees annual fees was upheld in Florida Power & Light v. United States, supra. The Commission has reaffirmed its determination that it will not impose an annual fee on its materials licensees. The Commission has more than 8000 materials licensees. Regulation of these entities requires a minimal expenditure of NRC resources (less than 3 percent of the NRC budget). Moreover, these 1 icensees are an extremely varied class, ranging from large uranium processing operators to small operators involving* well logging, radiography, or the use of gauging devices. In light of the relatively minor resources devoted to regulating these entities and the obvious administrative di ffi-cul ties in determining how to calculate appropriate annual fees for this large, diverse class of licensees, the Commission will not impose an annual fee on these licensees at this time.

3. Some comnenters a'sserted that the cost basis for annual fees should exclude costs serving an independent public benefit.

Response. The concept that costs related to an independent public bene- *~

fit should not be charged to licensees derives from the case law on applica-tion of the Independent Offices Appropriation Act of 1952, 31 U.S.C. 9701 *

(IOAA). It is not a concept applicable to annual fees charged under COBRA, as

amended. The annual fee statute has its own standard independent of the stand-ards appl ica*ble to IOAA. In any case, the research perfonned by the NRC pri-marily benefits power reactor licensees as part of the system under which those facilities are regulated and allowed to operate in a manner that provides ade-quate protection to the public health and safety. Therefore, none of the ser-vices for which fees are charged provide "independent public benefits" even ,.

if this concept were deemed applicable. The Commission's position on this issue was also upheld in Florida Power &Light v. United States, supra.

4~ Some commenters took the position that fees should be based on specific -identifiable services benefitting individual licensees and not on 9eneric*agency action. I I

Response. The concept that fees should be levied only for specific ser-vices to identifiable recipients is an IOAA standard. It is not a standard that applies to annual fees- under COBRA, as amended. It is the Co11i11ission's

-continuing view that the Con~ress did not intend that IOAA principles be ap-plied to the collection of annual-fees under COBRA, as amended. The Commis-si.on1s determinations in this area were upheld in Florida Power & Light v.

United States, supra. 'ly

5. Some commenters stated that the Co1T111ission should not include in its cost basis for annual fees _research cost until the Co1T111ission acts upon that research and it is shown to provide a benefit.

Response. It is the position of the Commission that research devoted to the continued safety of nuclear power reactors is i present service and benefit.

This research either confinns that reactors are safe, that some changes will improve safety, or that certain regulations may no longer be necessary for safe operation. The conduct of research resulting in any of these outcomes is a present benefit. This research provides continuing confidence that 1 icensed reactors can be operated consistent with the public health and safety and the Commission's regulations. We again note that the DC Circuit Court of Appeals in Florida Power & Light v. United States, supra, upheld the Commission's decision to include such costs in its annual fee bas~.

I

6. One conmenter felt that monies from the collection of_ fines, penalties I and interest should be inc 1uded in the 45 percent required to be co 11 ected.

Response. Although related here to the 45 percent level of collection, the same comment was presented with respect to the rule promulgating the 33 percent ceiling. The Commission adheres to its prior position. Fines; penal ties and interest are not cost *recovery measures. but are disciplinary and intended to deter persons who violate Commission regulations and orders, as well as other licensees, from future violations. Public policy dictates that those paying penalties, fines, or interest should not benefit by _recover-ing a portion of the penalty, fi,1e or interest through a reduced fee. Again, this Corrmission decision was upheld in Florida* Power & Light v. United States, supra.

7. Other Coments on Part 171 Amendments.

a. Some licensees and their vendors have stated that the additional costs assessed for B&W type reactors are not justified because these plants are not problem plants requiring the greatest expenditure of staff funds and manpower when compared with other reactors.

Response. The basis for assessing B&W owners under Part 171, or any li-eensee (by vendor type), is not based upon performance, but it is an allocation of fee based upon corresponding costs (FTE* and obligations) to the NRC to per-form generic type activities associated with that type of reactor (vendor type). Some specific act:tvities questioned (i.e., 11co*ntinuing Experimental I I

11 Capability" and Technical Integration Center 11 ) have been reallocated based upon a more detailed identification matrix of licensee groups.

b. Florida Power Corporation cemented that Agency and industry research eupports exclusion of reactot:s east of the Rockies from the list of reactors benefitting from special seismic studies.*

Response. Although its service area lies within a region of low seis-micity, the Florida Power Corporation, as explained below, benefits substan-tially from NRC seismic research, including maintenance of the NRC-funded seismograph networks east of the Rocky Mountains. Seismic research through the years has shown that Florida is less prone to earthquakes than a large part of

the eastern and central U.S., and thus allows for less stringent seismic design bases for critical faci 1i ties. Ongoing seismic monitoring wi 11 continue to confinn that conclusion or identify possible errors of judgment.

Recent experience (1982 New Brunswick and New Hampshire earthquakes, the 1987 southern Illinois earthquake and the reservoir induced seismicity at Monticello Reservoir, South Carolina) indicates that high a~celerations at relatively high frequencies can be generated locally by moderate to small mag- 4lt nitude earthquakes, usually at relatively shallow depths {several kilometers).

It 1s possible that earthquakes of these sizes , could occur in Florida (although the probability is low). Accelerations can result that exceed OBE I

or SSE design bases for critical facilities. We do not believe that these I ground l)'IOtions (short duration, high accelerations at high frequencies) are the kind that result in damage to seismically designed critical facilities, but research in this area is ongoing. The occurrences are extremely diffi ..

cul.t to handle even with no evidence of damage. The seismic networks are the main sources of data that are basic to resolving this issue.

Another major issue regarding eastern U.S. sehmicity is the nature of the tectonic structures that are currently responsible ~or the earthquakes. '1/4 Suspect structures include faults in rocks ranging in age from Palozoic through Triassic and into Tertiary {several hundred million years old to several million years old). These faults are widely distributed in rocks throughout the east, including rocks beneath Florida. Much of current seismic

and geologic resean:h funded by the NRC is focused ~n identifying and defining the tectonic structures that are causing the earthquakes. The most definitive information about seismic souTCes., which are deeply buried, is obtained from the analysis of rea>ntings of earthquake ground motions. . Builders and operators of critical facili'ties in low seismic areas derive as much benefit from this type of research as those in more seismic areas in view of the relatively short histori~ seismic rean-~.

c. Level of budget detail. Several utilities' overall criticism of the proposed rule concerns their perception of the need to breakout budgeted obligations to a level lower than the Program - Program Element - Activity structure used in the NRC planning process in the area of research. These

utilities further comment on*the fact that the budget detail, maintained at the activity level and provided to the Public Document Room (PDR) does not allow them access to greater detail (to see if the NRC developed its budget, thus its user charges, accurately).

Response. This suggestion tias- been adol)ted. we have gQne one level below the activity level to the project level (FIN) in developing fees for research activities. Using the FIN level permits a more detailed breakout of fee *1, categories. However, FIN information ~din developing these fees cannot be placed in the POR now because it contains predecisional contracting information--amounts set aside for specific .Procurements that have not yet been awarded. To re1ease this information before contracts are awarded would be in violation of the Federal Procurement iaw. Accordingly, we. do not

envision placing the FIN data used in developing this fee schedule in the PDR until sometime during the following fiscal year.

d. MIST program costs. Several corranenters stated that the Conmission agreed to share in the funding of Multi-Loop Integral System Test (MIST), the program with the B&W Owners Group (OG). However, it is in the research costs set forth in Tab 1e IV of the proposed rule. It is inappropriate for NRC to pass its share of the MIST costs on to B&W Owners thro~gh license fees.*

Response. The NRC does provide funding for the MIST program as well as other cooperative programs. Being an agency cost item, the MlST program as well I

,I as the costs for all other current and future cooperative programs should be used in* the cost allocation data base. Moreover, we do not view this as a breach of the co..:funding agreement by NRC with the OG because the current agreement is about to expire and a new agreement is being negotiated. All of the $2~7 million included in.the user fee base is for activities that would be -

funded by the new agre~ment rather than ~he existing one. Before entering the new agreement, this final rule will have been promulgated putting the OG on notice of the agency's revised user fee policies.

It should also be pointed out that in the _past two phases of MIST co-op research (Phase 3 and Phase 4), the owners group paid ~nly about one-half of the NRC contributions for Phase 3 and did not contribute any funds for Phase 4.

Because almost 90 percent of all funds budgeted in areas subject to fee recovery under Part 171 will be collected through user fees, if co-op research programs

were exempt from the fee base, the co-op groups would receive fee exemptions not available for other research--inequitably shifting the fee burden to other licensees.

e. Comments on specific changes to Part 171. Comments on the proposed changes to Part 171 fall into three primary groups: {l) the Commission is in error in considering the 45 percent collection target as a floor, and not as a ceiling, {2) the Commission is in error in eliminating the provision for erefunds of excess annual fee collections ( § 171.21), and (3) the Commission should adopt option 2 identified in the notice of proposed rulemaking.

Under that option, the previously adopted method for calculating annual fees would be retained. The only significant change would be raising the annual fee I J

to collect 45 percent of the NRC budget. Other commenters suggested that Option 2 not be adopted.

Response. The Commission addressed all three of these issues in its

-~notice of interim rule publjshed August 12, 1988, in the Federal Register (53 FR 30423). There the Co1T111issign stated its vjew that reading the 45 per-cent in Omnibus Budget Reconciliation Act (OBRA) (amending COBRA) as a ceiling would be contrary to the language and plain meaning of the statue, quoting,

" *** in no even~ shall such percentage be less than a total of 45 percent of such cos~s in each such fiscal year." (Section 5601, Omnibus Budget Recon-ciliation Act of 1987.) The Corrmission adheres to that view again emphasizing that fees will exceed the 45 percent target by a trivial amount.

The elimination of the provision for refunds results from the Commission*~

view of the operative effect of the 45 percent constituti.ng a floor for collections. In presenting the 45 percent as a floor, and not a ceiling, OBRA removed the necessity to make refunds which was implicit in COBRA when the latter imposed a 33 percent ceiling prior to its amendment. In short, the change in the law from a 33 percent ceiling to a 45 percent floor for callee-*

tions eliminates the need to make a refund *of amounts collected in excess of 45 percent. Accordingly, consistent with its view of Congressional intent, the Commission is permanently removing§ 171.21 from its regulations.

With respect to the suggestion that option 2 be adopted and the fee collection methodology remain unchanged, the ColTITiission does not support this I I

approach. The ColTITiission is firmly colTITiitted to assessing fees based on the principle that those licensees requiring the greatest expenditure of NRC resources pay the greatest fees. Option 2 is contrary to this policy.

f. One co11111enter requested that consideration of th~ utility's rate base be included among the exemption cri~eria in 10 CFR.171.11.

Response. This conment is also outside the scope of the rulemaking because the rulemaking does not propose any change to the exemption criteria in Part 17L Nonetheless, the ColTITiission believes that factors related to a utility's rate base may be considered in passing on requests for* exemptions in

§ 171.11. Rate base matters may be considered under*§ 171.ll(c) and under

§ 171.ll(e). In the Co11111ission 1 s view, the co11111enter 1 s request is already acco11111odated in Part 171 as initially codified.

III *. Changes Included in the Final Rules The changes included in the final rule are as follows and permit the NRC to recover approximately, but not less than, 45 percent of its budgeted costs for fiscal years 1988 and 1989, respectively. These changes were set forth in

- the proposed rule pub 1i shed on June 27, 1988 ( 53 FR 24077}. Any differences between the final rule and the proposed rule are explained in the followi_ng discussion.

I

1. Changing the hourly rates under 10 CFR 170.20 which range from $53 to

$62 for the various program offices to $86 for all program offices based on the FY 1989 budget and providing for an annual adjustment if there is a need for

- increase or decrease.. The $86 hourly rate is an increas_e from the proposed $80 hourly-rate. This increase fs as a result of using the FY 1989 budget in lieu of the FY 1988 budget. The method used for cafculating the hourly rate is exactly the same as that used in the proposed rule. An analysis of the budget which generated this rate is provided in the Part 171 Section-by-Section 1

. Analysis. ,.

~- Removing the 10 CFR Part 170 fee cei 1ings for application reviews, services, and inspections for reactors; fuel cycle facilities; transportation cask packages and shipping containers.

3.

• Amending 10 CFR 170.31 to charge for each routine inspection conducted by the NRC and to delete the maximum billing frequency. For user convenience, the fee schedule previously included in 10 CFR 170.32 has been incorporated in 10 CFR 170.31.

4. In 10 CFR Part 170, removing the application fee and deferring the._

payment of costs for the review of applications for standardized reactor design reviews and cer~ifications until a standardized design is referenced.

5. In 10 CFR Part 170, removing application filing fees for reactor applications and for reactor related topical reports.

i I

6. Increasing the annual fees assessed under 10 CFR Part 171 and charging based on the principle that licensees requiring the greatest expenditure of NRC resources shall pay the greatest fee. Again, as in the development of the hourly rate, the method used for determining the annual fee is the same as that described in the proposed rule except that budget obligations have been identified one level below the detail shown in the proposed rule based on the corrments received, and FY 1989 budget data have been used in lieu of the FY 1988 data used in the proposed rule.

7. Including in the NRC collection, moneys recovered from the Nuclear Waste Fund, as managed by the Department of Energy under the Nuclear Waste Pol icy Act, as amended, for costs incurred by the NRC in preparing for licensing a high-level waste repository.

The agency workpapers which support the changes to 10 CFR Parts 170 and 171 are available in the Public Document Room, at 2120 L Street, N.W., Washing-ton, DC, in the lower level of the Gelman Building.

IV. Section-by-Section Analysis The* following section-by-section analysis of the affected sections pro-vides additional explanatory infonnation. . All references are to Title 10, echapter I, Code of Federal Regulations.

Part 170 Section 170.12 Payment of fees.

Paragraphs (c), (d), (e), and (f) are changed to remove the $150 application fee for reactor license amendments and other approvals.

Within paragraph {e), Approval f~es., the cu.rrent reference to facility standard reference design approvals is changed to remove the application fee and to pennit deferral of review and certification fees until the design is referenced, pay ab 1e thereafter in 20 percent increments as the design is referenced. However, regardless of whether the design is referenced, the full costs of a preliminary design approval (POA)/final design approval (FDA) will be recovered by the NRC from the holder of the design a~proval within 5 years from the date of approval. If the design is certified, the five-year period is

- extended to 10 years from the date or the design certification with the same proviso that 20 percent of the costs will be payable* each time the design is referenced. In the event the standardized design approval application is denied, withdrawn, suspended, or action on the application is postponed, fees will be collected when the review, t~ that point, is completed and the five_(S) installment payment procedure will not apply.

Section 170.20 Average cost per professional" staff-hour~

This section is modified to reflect an agency-wide professional staff-hour rate based on the FY 1989 budget. The section is also modified to reflect that I

the hourly rate will be adjusted each fiscal year, with notice of the new rate I published_ in the Federal Register if the hourly rate increases or decreases.

Accordingly, the professional staff rate for the NRC for FY 1989 is $86 per*

hour, or $150.9 thousand per FTE (professional staff year) rather than $80 per hour as set forth in the proposed rule. An analysis of the budget which generated this rate is provided in the Part 171 section-by-section analysis

• In each subsequent year, the hourly rate will be adjusted to reflect current cost per direct s*taff FTE.

On August 19, 1987, Part 170 and other regulations under Title 10 of the Code of Federal Regulations_ were amended to reflect NRC organizational changes.

These revisions as published Aug1:,1st 21 1 1987_ {52 FR 31601), in final form, inadvertently changed 10 CFR 170.20 to delete the $53 hourly rate for regional staff inspection and other identifiable services. In computing .costs for

- 24 ..

invoices, the $53 hourly rate will continue to be used for regional review staff time until the effective date of this final rule at which time the $86 hourly rate will be used.

Section 170.21 Schedule of fees for production and utilization facilities, review of standard reference design approvals, special projects, and inspections.

tit Within the schedule of fees, all services (other than most appHcation filing fees) wi11 be changed from the cur.rent specified cost to "Ful 1 Cost. 11 The schedule for Standard Reference Design Review is modified to reflect the amendment of§ 170.12 addressed above.

I

,I With* the removal of ceilings for certain services, the costs for those reviews for which a ceiling previously established has been reached will not be billed if prior to the effective date of this rule the review ;Of the eapplication is completed. For administrative reasons, where the review has not yet been completed, . NRC will not seek

- to

. recover those

. costs which it incurred after the current ceiling was reached and before this revised rule becomes effective. Costs incurred after the effective date of this final rule will be billed. The professional staff-hours expended up to the effective date of this rule will be at the professional rates established for the June 20, 1984 rule.

Any professional hours expended after the effective date of this rule will be assessed at the FY 1989 rates reflected in this final rule. The same applies to the removal of ce111ngs

• under the revisions of § 170.31 below~ The

footnotes to this schedule also are modified to bring them into confonnity with the amendments to this schedule.

Section 170.31 Schedule of fees for materials licenses and other regulatory

.services.

Like § 170.21, this section is modffied to (a) reflect the removal of cei l i ngs on certain categories of fees , ( b) charge fu 11 cos ts for those ser-vices, and (c) incorporate the inspection fee schedule previously set forth in Section 170.32.

Inspection fee ceilings. for selected services are also removed and the I I

remaining fixed fees are retained since the ratio of NRC costs to fees collected is approximately equivalent to the percentage of the budget to be collected into the General Treasury. Currently if the frequency of inspection, for example, for a category is 2 years and an inspection is next conducted 1 year and 11 months after thi previous inspection, no fee is assessede Often times inspections of different licensees are scheduled because of their close proximity. This scheduling represents a more efficient use of resources.

Accordingly,§ 170.31 and the footnotes are being revised to indicate that fees will be assessed for each inspection conducted by the NRC. Footnotes to the schedule that are affected by this action are reiised to be consistent with this revision. Previous inspection footnotes l through 4 are now being combined as one footnote and will become l(e) and footnote 5 remains as 5.

.. 26.-

S~ction 170.32 Schedule of fees for health, safety, and safeguards inspections for materials licenses.

Under the proposed rule, Section 170.32 was published as a separate schedule to cover inspection fees for*materials'licensees. The refonn~tting to include materials inspection fees under Section 170.31 is for user convenience and to shorten the rule. By doing this, as in Section 170.21, all :fees for each license *categorr are now together rather than in two different schedules.

The rule has not been changed from its proposed fonn. Footnotes have been consolidated and renumbered as specified above.

Part 171 I I

The following is a section-by-section analysis of those areas affected by thh final rule. All references are to Title 10, Chapter I, Code of Federal 4t Regulations.

Section 171.5 Definitions.

The following definitions are being added.

The tenn "Budgeted obligations" is defined to be the projected obl:igations of the NRC that likely will result in payments by the NRC during the same or a future fiscal year

-to provide regulatory services to licensees. Budgeted obligations include, but are not limited to amounts of orders to be placed,

., 27 -

contracts to be awarded, and services to be provided to licensees. Fees billed to licensees are based on budgeted obligations because the NRC's annual budget is prepared on an obligation basis.

The tenn "Overhead costs" is defined to include three*' components: (1)

Government benefits for each employee such as leave and holidays, retirement and disability costs, health and life insurance costs, and social security costs; (2) Travel costs; (3) Direct overhead, e.g., supervision, program support staff, etco; and (4) Indirect costs, e.g., funding and staff for administrative support activities. Factors have been developed for these overhead costs which are applied to hourly rates developed for employees providing the regulatory services within the categories and activities I I

applicable to specified types or classes of reactors. The Conmission views these costs as being reasonably related to the regulatory.services provided to the licensees and, therefore, within the meaning of Section 7601, COBRA.

Section 171.13 Notice.

Under the current rule, one fee is applicable to all licensed reactors.

Under this final rule, each reactor will be assessed fees based on those NRC activities from which it benefits as a type or within a class of reactors.

Accordingly, annual fees are expected to be different for each of the various types or classes of reactor operating licenses. Each bill will reflect those specific activities applicable to each operating 1icense as required by the revised§ 171.15 discussed below.

Section 171.15 Annual Fee: Power reactor operating licenses.

Paragraph (c) is modified to reflect a minimum target percentage of 45 percent rather than a maximum percentage of 33 percent. The fonnula used to calculate the annual fee is modified to reflect the inclusion of moneys expected to be collected from the Nuclear High Level Waste (HLW) Fund admin-istered by .the Department of Energy and the estimated collections _under Part 170 for each fi sea 1 year. Funds wi 11 be co 11 ected from the Nuclear HLW Fund

- .beginning in FY 1989. The sum of these funds wi 11 be subtracted from the amount reflecting 45 percent of the NRC bu*dget prior to detennining the annual fee for each licensed power reactor.

In FY 1989, the Commission must recover not less than 45 percent of its congressionally enacted buQget of $420,000,000. Applying the fee rates set out in this rule, the NRC estimates that it will collect in FY 1989 $50 million pursuant to Part 170 and $15 million from the Nuclear Waste fund. In

-accordance with the fonnula provided in § 171.15, for FY 1989: $189 million minus approximately $50 million fo~ Part 170 plus $15 million for Nuclear Waste Fund equals approximately $124 million to be recovered through annual fees.

Because at least 45 percent is to be collect~d, the amount charged under Part 171 will also be dependent on the number of exemptions granted pursuant to  ! *,

§ 171.11 and the number of new power reactor licenses* issued during the fiscal year.

The following areas are those NRC programs which comprise the annual fee" They have been expressed in terms of the NRC's FY 1989 budget program elements and associated activities in lieu of the FY 1988 activities used in the proposed rule.

PROGRAM ELEMENT ACTIVITY

-Reactor Performance Evaluation -Generic Communications

-Engineering/Safety Assessments

• Reactor Maintenance and *Maintenance and Surveillance Surveillance

• License Performance Evaluation -Quality Assurance

-License and Examine Reactor -Program Development and Assessment/

Operators Regional Oversight I I

• Generic Activities

-Region-ijased Inspections -Lab and Technical Support

-Regional Assessment

-Specialized Inspections -Vendor Inspections

-Regulatory Improvements -Technical Specifications

-Safety Goal Implementation .

-Inspection/Licensing Integration and Research and Standards Coordination

-Licensee Reactor Accident -Concept of Operations and Management Evaluation Implementing Technical Procedures

• Regional Assistance Committees

-Safeguards Licensing and -Regula~ory Effectiveness Reviews Inspection

-Reactor Vessel and Piping -Pressure Vessel Safety Integrity -Piping Integrity

-Inspection Procedures and Techniques

-Chemical Effects

.. 30 -

PROGRAM,ELEMENT ACTIVITY

-Aging of Reactor Components -Aging Research

-Reactor Equipment Qualification -Equipment Qualification Methods

-Seismic and Fire Protection -Earth Sciences Research -Component Response to Earthquakes

-Validation of Seismic Analysis

-Seismic Design Margin Methods

-Accident Management -Individual Plant Examinations

-Ex-Vessel Accident Management

-In-Vessel Accident Management

-External Event Safety Margins

-Reactor App 1i cations *. *Containment/Balance of Plant

. -Technical Support Center

• Nuclear Plant Analyzer/Database/

Simulator

-Plant Performance -B&W Testing I

-PWR Large Break LOCA Testing '

-PWR Small Break LOCA Testing

-Other Experimental Programs

-Modeling

-Human Performance -Human Factors Research

-Human Error Data Collection and Analysis

--Reliability of Reactor Syste~s -Performance Indicators

-Plant and Systems Risk and Reliability

• Dependent Failure Analysis

-Core Melt and Reactor Coolant -Fission Product Behavior System Failure and Chemical Form

-Natural Circulation in the Reactor Coolant System

-Reactor Containment Safety -Core Melt Progression and Hydrogen Generation

-Steam Explosion

-Core/Concrete Interactions

-Direct Containment Heating

-Integrated Codes and Applications

-Hydrogen Transport and Combustion

.. 31..,

PROGRAM ELEMENT ACTIVITY *

-Reactor Accident Risk Analysis -Severe Accident Management

-Risk model development

-Risk Uncertainty Methodology

-Risk Rebaseline Analyses

-Risk-Based Management Methodology

-Severe Accident Program -Severe Accident Policy Implementation Implementation

-Regulatory Application of New Source Terms

-Radiation Protection and -Reduce Uncertainty in Health Effects Health Risk Estimates

-Health Physics Technology

. Improvements

-Dose reduction

-Generic and Unresolved Safety -Engineering Issues Issues -Reactor System Issues

-Human Factors Issues . I I

-Severe Accident Issues

-Management of Safety Issue Resolution

-Developing and Improving Regulations -Regulatipn Development or Modification

-Independent Review and Control of Rulemaking

~Regulatory Analysis of Regulation

-Rules for License Renewal

-Safety Guide Implementation

-Performance Indicators -Manage Performance Indicator Program

-Diagnostic Evaluations -Conduct Diagnostic Evaluations of Licensee Performance

-Incident Investigation -Management Incident Investigation Program

PROGRAM ELEMENT ACTIVITY

-NRC Incident Response .-Emergency Response Data System

-Develop and Maintain Response Center Equipment, Procedures and Analytical Tools

-Program Coordination and Development

-Operations Officers

-Technical Training Center -PWR/BWR Technology Training

-Operational Data Analysis *Analysis of Operational Experience.

-Analysis of Operational Trends and Patterns

-Operational Data Collection -Collect, Screen and Feed Back and Dissemination Operational Data

-Operational and Reliability Data Systems

-Section Supervision -Section Supervision , I '

Each of these activities is related to providing services to operating nuclear power plants. NRC's efforts in each of these areas contribute to the licensees' continued safe operation of their facilities and therefore are of benefit to them. A broader description of these programs is contained in the NRC's annual budget submissi,on to Congress. See NUREG-1100, Volume 4, 11 Budget Est{mates Fiscal Year 198911 (February 1988). 1 While these activities also 4

1 Copies of NUREG-1100, Vol. 4 may be purchased from the Superintendent of Documents, U.S. Government Printing Office, P.O. Box 37082, wa*shington, DC 20013-7082., Copies are also available from the* National Technical Information Service, 5285 Port Royal Road, Springfield, VA

• 22161. A copy is also avail-able for public inspection and/or copying at the NRC Public Document*Room, 2120 L Street NW., Lower Level of the Gelman Building, Washington, DC.

.. 33 -

provide benefits to the public, because they benefit our licensees, these are not II independent pub l i c benef i ts~ 1 as that term is used in user .fee case law.

Accordingly, it is legally permissible to charge licensees for these services.

Paragraph (c) is being revised to reflect that the basis for each annual fee will be the budgeted obligations for activities (regulatory services) app 1i cable to e*ac;h nuc 1ear power reactor as one of a type or cl ass of reactors, e.g., boiling water reactors or pressurized water .reactors. Using this approach, the Commission_will, each year, establish the budgeted obligations (including overhead costs) for each activity on a per reactor unit basis, and estab 1i sh the tota 1 costs for those regulatory services* provided to each reactor licensed to operate. NRC labor costs attributable to these activities will be determined using the hourly rates established on the bc(sis of an analysis of direct and indirect (overhead as defined herein) staffing costs attributable to the regulatory services provided.

Paragraphs (d) and (e) *:of the current rule are being deleted as super-fluous to the proposed approach to-annual fees.

Supplemental Analysis on Annual Fee Determination Under§ 171.15 Under current 1egi slat ion, the NRC is to co 11 ect and deposit to the General Fund of the Treasury, an amount to approximate but not be less than 45 percent of its budget. In fiscal year 1989 the President's budget for the NRC

is $420.0 million. Thus, in FY 1989 the NRC should collect at least $189 million. In FY 1989, it is estimated that approximately $50 million will be co 11 ected from specific licensees under Part 170, and $15 m.il 1ion from the Department of Energy High-Level Waste Fund. Thus, the remaining funds, at least $124 million ($189 million less $65 million), will have to be collected under Part 171. A multiplier will be used such that the amount to be collected will be equal to Part 170 collections, ~lus High-Level Waste Fund collections, 11 plus Part 171 potential collections multiplied by a factor M, 11 which in FY 1989 1 will probably be less than one. Thus 11 M11 equals m or .84 of the budget base.

For FY 1989, the budgeted obligations by direct program are: (1)

Salaries and Benefits, $184.0 million; (2) Administrative Support, $70.0 I

million; (3) Trave*l, $12.0 million, and (4) Program Support, $154.0 million. '

In FY 1989, 1603. 4 FTEs are considered to be in direct support of NRC pro-grams applicable to fees (See Table I). About 337 FTEs are utilized in efforts associated with Part 171, with the remainder being utilized in efforts associated with Part 170, or to be recovered from the DOE Nuclear Waste Fund or other efforts. Of the total 3,180 FT Es, l:, 577 FT Es wi 11 be considered overhead (supervisory and support)-or exempted (due to their program function).

Of the 3,180 FTEs, a total of 291 FTEs and the resulting $23.9 million in*

support are exempted from the fee base due .to the nature of their functions (i.e., enforcement activities and other NRC functions currently exempted by Commission policy).

TABLE I Allocation of Direct FTEs by Office Office Number of Direct FTEs 1 NRR/SP 968.0 RESEARCH 155.0 NMSS AEOD ASLAP 307.2 93.0 5.2 ASLBP 17.0 j '

ACRS 25.0 OGC 33.0 1603.4 1 Regional employees are counted in the office of the program each supports.

~

e In determining the cost for. each direct labor FTE (an FTE whose position/function is. such that it can be identified to a specific licensee or class of licensees) whose function, in the NRC 1 s judgment, is necessary to the regulatory process, the following rationale is used:

1. All such direct FTEs are identified by office.

2. NRC plans, budgets, and controls on the following four major categories (see Table II):

a. Salaries and Benefits.

b. Administrative Support.

c. Travel.

d. Program Support.

tit 3. Program Support, the use of contract or other services for which the NRC pays for support from outside the Commission, is charged to various cate-gories as used.

I I

4. *All other costs (i.e., Salaries and Benefits, Travel~ and Administra-

• tive Support) represent 11 in-house 11 costs and are to be collected by allocating them uniformly over the total number of direct FTEs.

e Although this method differs from previous methods for recovery of costs, it is equally as accurate because it allocates all

• <I 11 in-house 11 resource require-ments over the universe of direct FTEs (those staff members who would be billed to licensees based upon work performed either directly for a specific licensee or a specific group of licensees).

Using this method which was described in the proposed rule and the FY 1989 budget, and excluding-budgeted Program Support obligations, the remaining

.. 37 -

TABLE II FY 1989 Budget B~ Major Category

($ In Millions)

Salaries and Benefits $184 Administrative Support 70 Travel ~

Total Non Program Support Obligations $266 Program Support 154 Total Budget ~

The Direct FTE Productive Hourly Rate ($86/hour rounded down)) is calculated by dividing the annual nonprogram support costs ($266 million) less the amount applicable to exempted functions ($23.9 million) by the product of the direct FTE (1,603.4 FTE) and the number of productive hours in one year (1,744 hours0.00861 days <br />0.207 hours <br />0.00123 weeks <br />2.83092e-4 months <br />)

~s indicated in OBM Circular A-76, "Performance of Commercial Activities. 11

$242 mil'lion allocated uniformly to the direct FTEs (1603.4) results in a calculation of $150. 9 thousand per FTE for FY 1989 (an hourly rate of $86).

Because Part 171 is designed to collect fees for NRC efforts of a generic or multi-license nature concernil)g licensees with power reactor operating licenses, the most feasible method to accomplish this is to develop fees based on NRC budgeted obligations for each NRC generic or multi*lf censee program concerning p1ants with operating 1i censes. Addi ti ona 1ly, because many of the research programs expend effort for specific types of reactors (i.e.,

Westinghouse, CE, B&W, and GE), containment types (i.e. MARK I, II, III, etc.),

or plants in a *specific geographic location (e.g., reactors east of the Rockies), these parameters were also used in refining NRC cost by

reactor/operating license. Table III presents a summary of Part 171 fees, by reactor category, using the FY 1989 budget for Program Support costs and FTEs.

As can be seen from Table III, a reactor which is a B&W reactor, east of the Rockies would have a fee ($1,592) imposed which is higher than the fee

($1,121) imposed on a GE Mark I reactor west of the Rockies. This example also represents the normal range of fees to be charged under Part 171 of

$1,121 thousa!)d to $1,592 thousand. Table IV provides a detailed presenta-

- tion of the budgeted obligations by budget program element and activity and shows how the annual fees were determined for the various types of reactors.

Table V is a specific listing of the annual fee to be assessed for each reactor in FY 1989.

I '

TABLE III Part 171 Fees By Reactor Category - Summary (Fees In Millions)

WITH MINOR ADJUSTMENTS FOR PLANTS WEST OF ROCKIES OR WESTINGHOUSE PLANTS WITH ICE CONDENSERS THE FOLLOWING APPLY TO PLANT/CONTAINMENT TOTAL NUMBER BUDGET BASE X.84 FEE COLLECTED TYPE*

GE MARK I (24) $1.349 $1.133 $ 27.19 GE MARK II ( 7) 1.443 1.212 8.48 GE MARK III ( 4) 1.373 1.153 4.61 B&W ( 8} 1.896 1.592 12.74 CE_ (15) 1.391 1.168 17.52 WESTINGHOUSE 1ffi 1.352 1.135 54.48 . 1' 106 $125.0 FEE BASIS BY VENDOR/CONTAINMENT TYPE-

SUMMARY

($000)

ALL GE MARK I's (24)* $1,219 (ALL) 98 (ALL BWR) 18 (MARK I) 14 (EAST OF ROCKIES)*

$1,349 ALL GE MARK II's (7)* $1,219 (ALL) 98 (ALL BWRs) 70 (MARK II) 42 (MARK II/I II) 14 (EAST OF ROCKIES)

$1,443 ALL MARK Ill's (4)* $1,219 (ALL}

98 (ALL BWR) 42 (MARK II/III) 14 (EAST OF ROCKIES)

$1,373

TABLE III (Contd)

ALL B&Ws (8)* $1,219 (ALL) 112 (ALL PWR) 7 (ALL PWR - LDC) 544 (ALL B&W) 14 (EAST OF ROCKIES)

$1,896 ALL CE's (15) $1,219 (ALL) 112 (ALL PWR) 7 (ALL PWR-LDC) 39 (ALL CE) 14 (EAST OF ROCKIES)

$1,391

- ALL WESTINGHOUSE (48)* $1,219 (ALL) 112 (ALL PWR) 7** (ALL PWR-LDC) 14 (EAST OF ROCKIES)

$1,352 FEE BASIS BY CATEGORY -

SUMMARY

($000)

ALL PLANJS (106) $1,219 ALL PWRs 112

+ PWRs with LDC 7

+ ALL B&Ws 544 or

- ALL BWRs

+

+

+

ALL CEs ALL MARK I's ALL MARK II I s ALL MARK II's & Ill's 39 98 18 70 42 ALL PLANTS EAST OF ROCKIES (SEISMIC) 14

• All except plants west of Rockies which pay $14,000 less I**.

• • 8 Westinghouse plants with ice condenser are not charged this $7,000 fee

- 41 ...

Table IV FEE BASIS FOR ALL REACTORS - DETAIL

($000)

FTE$

GENERIC (ALL REACTORS) (106)

NRR/SP $4,092 $19,949 AEOD 9,255 13,355 RES (ALL) 29,251 8,149 RES (PWRs &BWRs) 36,212 5,915 RES SEISMIC (ALL) 2,603 438 81~413 47,806 TOTAL $129,219 TOTAL = $1296219 . 1,219. Per NUMBER REAc:r9RS - 16 Reactor I I

FEE BASIS FOR ADDITIONAL CHARGES BY NUCLEAR STEAM SUPPLY SYSTEM VENDOR ANO CONTAINMENT TYPE - DETAIL PRESSURIZED WATER REACTORS PTS$ FTE$

.muo) '($Cm0)

NSSS, ALL PWRs (71) $6,200 $1,720 TOTAL - PWRs = $7,920 TOTAL = $7;920 = $111.55 Per 1 Reactor

• . NSSS (ALL LARGE DRY CONTAINMENT $335 $105 W (LDC] PWRs) (63)

TOTAL PWR LDCs = $ 440 TOTAL PWR LDCs = $ 440 = $6.98 Per NUMBER OF REACTORS = ~ Reactor I

NSSS LDC B&W ONLY (8) $3,975 $ 3TI I TOTAL LDC - B&Ws $4,352 TOTAL LDC - B&Ws = $4,352 = $544.00 Per NUMBER OF REACTORS = 8

• Reactor NSSS, LDC - CE ONLY {15) $475 $105 TOTAL LDC - CEs $ 580 TOTAL LDC - CEs = $: 580 = $ 38.67 Per Ir Reactor BOILING WATER REACTORS NSSS, ALL BWRs (35) $3,048 $377 TOTAL - BWRs = $3,425 TOTAL BWRs = 3,425 $97.86 Per NUMBER OF REACTORS = 35 Reactor

.., 43 -

PTS$ FTE$

l$000) ~O)

NSSS, BWRs (Mark I) (24) $ 400 $30 TOTAL MARK I $ 430 TOTAL MARK Is - .$430 * = $17. 92 Per NUMBER OF REACTORS =

• 24 Reactor NSSS, BWRs (MARK II) (7) $400 $ 90 TOTAL MARK II $490 TOTAL MARK !Is= = $ 490 C $70.00 Per NUMBER OF REACTORS = t Reactor NSSS, BWRs (TOTAL MARK II/MARK III) $325 $135 (7/4)

TOTAL MARK II/MARK III S $460 TOTAL MARK II/MARK Ills = $460 = $41.82 Per I I

NUMBER OF REACTORS ~ Reactor*

SEISMIC WORK - ALL PLANTS $2,-603 $438 TOTAL SEISMIC - ALL PLANTS $3,041 TOTAL SEISMIC ALL PLANTS = = $28.69 Per NUMBER OF REACTORS = Reactor SEISMIC WORK (APPLICABLE PLANTS* . . $1~220 $151 EAST OF ROCKIES)

TOTAL EAST OF ROCKIES $1,371 TOTAL EAST OF ROCKIES NUMBER OF PLANTS*

-= = $14.43 Per Reactor

TABLE IV (Contd)

DETAIL ELEMENTS FY 1989 Program Sueeort $ FTE Part 171 Work bl NRR GENERIC EFFORT - ALL PLANTS

1. Reactor Performance Evaluation

a. Generic Communications $ 0 10.5

b. Engineering/Safety Assessments 387 6.4

2. Reactor Maintenance and Surveillance 175 2.2

- 3. Licensee Performance Evaluation 4.

a.

Quality Assurance Program License and Examine Reactor Operators*

Program Development and Assessment/

Regional Oversight 0

0 4.5 8.1

5. Region-Based Inspections . j I

a. Lab and Technical Support 670 10.6

b. Regional Assessment 0 0

6. Specialized Inspections Vendor Inspections 815 15.1

7. Section Supervision 0 37.3

- 8.

9.

Regulatory Improvements a.

b.

c.

Technical Specifica..tions Safety Goal Implementation Generic Issues/Rules/Reg~ Gui~es/Policy.

Licensee Reactor Accident Management 345 0

150 11.9

.6 11.4 Evaluation

a. Emergency Procedures 1,115 5.2 'It

b. Regional Assistance Committees 0 2.0

10. Safeguards Licensing and Inspection Regulatory Effectiveness Reviews 435 6.4 Total Part 171 $4,092 132.2 FTE 132.2 X $150.9 $19,949 PTS 4,092 TOTAL - NRR - (ALL PLANTS) = $24,041 ,

.. 45 ..

FY 1989 Program Support$ FTE Part 171 Work by AEOD GENERIC EFFORT - ALL PLANTS

1. Diagnostic Evaluations $ 0 2.0

2. Incident Investigation 50 2.5

3. NRC Incident Response 2,635 27.0

4. Technical Training Center 2,650 22.0

?* Operational Data Analysis

6. Performance Indicators

7. Operational Data Collection and Dissemination 2,020 150 1 1750 25.0 4.0 6.0 Total Part 171 Work by AEOD $9,255 88.5 FTE = 88.5 X $150.9 = $13.,355 PTS 9,255 TOTAL - AEOO = (ALL PLANTS)= $22,610

Part 171 Work b~ Research A. Generic Efforts - All Plants PTS $ FTE

($000)

Aging of Reactor Components 6,245 6.-7 Aging Research Reactor Equipment Qualifications - 400 .3 Equipment Qualification Methods Component Response to Earthquakes 2,460 2.6

- Validation of Seismic Analysis 1,200 1.0 Seismic Design Margin Methods 350 .7 Prevent Reactor Core Damage 200 .3 0 Other Experimental Programs 0 Modeling

• 50 0 . ,'

Human Performance -

0 Human Fa~tors Research 3,020 . 3.8 0 Human Error Data Collections 936 1.2 and Analysis Reliability of Reactor System - 800 1.5 Performance Indicators Plant* &System Risk & Reliability 1,411 2.4 4

Dependent Failure Analysis 225 .2 Individual Plant Exams 1,490 1.1 Reactor Containment 2,970 2.3 Structural Integrity '*,

Regulatory Application of 25' 1.0 New Source Terms Radiation Protection of Health Effects - 835 1.8.

Reduce Uncertainty in Health Risk Estimates Health Physics Technology 415 1.5 Improvements

... 47..,

PTS $

($000) -FTE Dose Reduction 825 1.5 Generic and Unresolved Safety Issues 790 6.2

• Reactor System Issues 150 1.2 Human Factors Issues 1,000 1.3 Severe Accident Issues 370 1.0 Management of Safety Issues 300 6.. 5 Resolution Regulation Development and Modification 350 2~9 e, Regulatory Analysis of Regulations 1,044 3.0 Rule for License Renewal 1,190 1.0 Safety Goal Implementation 200 1.0 I I

Generic Efforts - All Reactors - TOTAL= $2~,251 54.0

B. Generic Efforts - All Plants Except HTGR PTS $ FTE

($000)

Integrity of Reactor Component -

Reactor Vessel &Piping Integrity -

Pressure Vessel Safety 8,195 2.6 Piping Integrity 1,385 .5 Inspection Procedures and Techniques 1,280 .9 Chemical Effects 2,050 4.0 e Aging of Reactor Components -

Aging Research 950 1.1 Reactor Equipment Qualification -

Standards Development 455 .4 Prevent Reactor Core Damage - Modeling 450 .4 I

. I Reactor Applications - Containment/Balance 460 1.0 of Plant

• Technical Support Center 1,050 1.2 NPA/Database/Simulator 400 .8 Accident Management - Ex-Vessel 1,050 1.5 9 Accident Management In-Vessel Accident Management 1,400 1.5 External Events Safety Margins 325 .4 Core Melt Progression and H2 Generation 3,820 1.8 Natural Circulation in the RCS 690 1.0 Steam Explosions 185 0 Fission Product Behavior and Chemical Form 990 .8 Reactor Containment Safety - 1,750 .8 Core Concrete Interaction Hydrogen Transport and Combustion 650 1.0

... 49 -

PTS $

($000) -FTE Integrated Codes and Applications 2,762 2.1 Reactor Accident Risk Analysis -

Assessment of Plant Risks 300 .5 Risk Model Development, QA and Maintenance 2,025 3.0 Ri s k Mode 1 App 1i cations 2,690 2.0 Severe Accident Policy Implementation 200 .6 Regulatory Applfcation of New Source Term 125 5.0 Generic and Unresolved Safety Issues - 75 .6 Engineering Issues Reactor System Issues 500 3.7 TOTAL (PWRs &BWRs) $36,212 39.2 . I I

.. 50 -

C. Seismic - All Plants PTS $ FTE

($000)

Seismic and Fire Protection - 2,270 1.8 Earth Sciences Reactor Accident Risk Analysis - 273 .5 Assessment of Plant Risks Resolve Safety Issues and 60 .6 Developing Regulations -

Engineering Issues 2,603 2.9

- TOTAL $3,04ik

0. Seismic - Plants East of Rockies Seismic and Fire Protection - 1,220 1.0 Earth Sciences I

• J E. Seismic - Plants West of Rockies TOTAL = $0 0 0

- 51 ....

F. Nuclear Steam Supply System

{PWR only}

PTS $

($000) -

FTE Integrity of Reactor. Component Piping Integrity 100 Inspection Procedures and Techniques 170 P-revent Reactor Core Damage -

PWR Large Break LOCA Testing 1,000 .9 PWR Small Break LOCA Testing 300 .4 Modeling 1,700 LS Core Melt Progression and H2 Generation 300 .2 Fission Product Behavior and Chemical Form 300 .2.

Direct.Containment Heating* 1,620 1.0 I I

Res.olving Safety Issues and Developing . 235 2.4 Regulations - Engineering Issues Reactor System Issues 475 4.7 TOTAL NSSS - PWR Only $6,200 11.4 Go NSSS - All Large Dry Containments - (PWRs ONLY)

PTS $

($000) -

FTE Severe Accident Implementation -

Severe Accident Policy Implementation 225 .6 Resolving Safety Issues and Developing Regulations - Reactor 110 .1 Systems Issues 335. -;:,-

H. NSSS PWR LDC -*(Westinghouse only) 0 0

~ 52 -

I. NSSS LDC (B&W ONLY} "

I PTS $ ill

{$000)

Prevent Reactor Core Damage - *;

Plant Performance - B&W Testing 3,500 1.8 Reactor Accident Risk Analysis -

Assessment of Plant Risks 475 .7

$3,975 2.5 NSSS CE - Large Ory Containments

- J.

Reactor Accident Risk Analysis - 475 .7 Assessment Plant Risks I

I

., 53 ....

K. NSSS - (BWR Only)

PTS $ FTE

($000)

Integrity of Reactor Component Piping Integrity 1,080 .5 Prevent*Reactor Core Damage - 800 c-1 Modeling Reactor Containment Safety - 1,128 .9 Integrated Codes and Applications Resolve Safety Issues L GE - MARK I 40.

$ 3,048

.4 2e5 Reactor Containment Safety - 400 o2 Core/Concrete Interactions M. GE - MARK II Reactor Accident Risk Analysis - 400 .6 Assessment of Plant Risks N. GE - MARK II &III

_Severe Accident Implementation - 325*

Severe Accident Policy Implementation. .

The costs to NRC for these programs should be paid for on a pro.rata basis~

by all plants included in the specified categories. By adding the program support costs to the NRC staff cost for each category of effort and prorating these costs over the population {plants) of that -category, a fee is established which requires those licensees who require the greatest expenditure of NRC resources to pay the largest annual fee.

TABLE V ANNUAL FEES FOR OPERATING POWER REACTORS FY 1989 Westinghouse Reactors Containment Ty:pe Annual Fee

1. Beaver. Valley l PWR-Large Dry Containment $1,135,000

2. Beaver Valley 2 II 1,135,000

3. Braidwood l II 1,135,000

4. Braidwood 2 II 1,135,000

5. Byron 1 u 1,135,000

6. Byron 2 II 1,135,000

7. Callaway 1 II 1,135,000

-0.8. Oiablo Canyon 1 II 1,124,000 Oiablo Canyo.n 2 II 1,124,000 Farley 1 II 1,135,000

11. Farley 2 II 1,135,000 .

12. Ginna

• II 1,135,000

13. Haddam Neck II 1,135,000

14. Harris 1 II 1,135,000

15. Indian Point 2 1,135,000

16. Indian Point 3 .* 1, 135 , 000 I

17. Kewaunee 1,135,000 I

18. Millstone 3 1,135,000

19. North Annal 1,135,000

20. North* Anna 2 1,135,000

. 21. Point Beach 1 1,135,QOO

22. Point Beach 2 1,135,000

.5.23.

24.

6.

27.

Prairie Island 1 Prairie Island 2 Robinson 2 Salem 1 Salem 2 II II II 1,135,QOO 1,135,000 1,135,000 1,135,000 1,135,000

28. San Onofre 1 U*

1,124,000

29. Seabrook 1 II 1,135,000

30. South Texas 1 II 1,135 ,0,00

31. Summer 1 II 1,135,000

32. Surry 1 1,135,000 *~

II

33. Surry 2 II 1,135,000

34. Trojan II 1,124,000

35. Turkey Point 3 II 1,135,000

36. Turkey Point 4 II 1,135,000

37. Vogtle 1 II 1,135,000

38. Wolf Creek l II 1,135,000

39. Zion 1 II 1,135,000

40. Zion 2 II 1,135,000

41. Catawba 1 PWR-Ice Condenser 1,130,000

42. Catawba 2 II 1,130,000

. 55 ..

43. Cook 1 II 1,130,000

44. Cook 2 II 1,130,000

45. McGuire 1 II 1,130,000

46. McGuire 2 H 1,130,000

47. Sequoyah 1 II 1,130,000

48. Sequoyah 2 II 1,130,000 Combustion Engineering Reactors Containment TyPe Annual Fee

1. Arkansas 2 PWR-Large Dry* Containment $1,168,000

2. Calvert Cliffs 1 1,168,000

3. Calvert Cliffs 2 1,168,000 4.

5.

6.

7.

8.

9.

Ft. Calhoun 1 Maine Yankee Millstone 2 Palisades Palo Verde 1 Palo Verde 2 1,168,000 1,168,000 1,168,000 1,168,000 1,157,000 111157,000

10. Palo Verde 3 ii 1,157,000 II

11. San Onofre 2 1,157,000

12. San Onofre 3 H 1,157,000

13. St. Lucie 1 II 1,168,000

14. St. Lucie 2 II 1,168,000 15 .. Waterford 3 II 1,168,000 Babcock &Wilcox Reactors

1. Arkansas l PWR-Large Dry II .

Containment 1,592,000

2. Crystal River 3 1,592,000

3. Davis Besse*1 II 1,592,000

. 4. Oconee 1 II 1,592,000

5. Oconee 2 II 1,592,000

6. Oconee 3 II 1,592,000

7. Rancho Seco 1 II 1,581,000

8. Three Mile Island l II .

ljl592,000 General Electric Plants ,

1. Browns Ferry l Mark I 1,133,000 II

2. Browns Ferry 2 1,133,000 II

3. Browns Ferry 3 1,133,000

4. Brunswick 1 Ii II 1,133,000

5. Brunswick 2 1,133,000

6. Clinton 1 Mark III 1,153,000

.7. Cooper Mark I 1,133,000

Dresden 2 Ii

• 1,133,000 8.

9. Dresden 3 .  !

1,133,000 n 1,133,000

10. Duane Arnold 11 I

11. Fermi 2 I' 1,133,000

12. Fitzpatrick II 1.133,000

13. Grand Gulf l Mark:' I II 1,153,000

14. Hatch l Mark, I 1,133,000 II  :

15. Hatch 2 1,133,000 n

16. Hope Creek 1  : 1,133,000

17. LaSalle l Marki II 1,212.000

18. LaSalle 2 Marie: II 1,212,000 ti  !

19. Limerick 1 I 1,212,000

20. Mil 1stone 1 Mark, I 1,133,000

-21. Monticello II I' . 1,133,000

22. Nine Mile Point 1 It '.

1,133,000

23. Nine Mile Point 2 Mark! II 1.212,000

24. Oyster Creek Mark' I 1,133,000

25. Peach Bottom 2 II ! 1,133,000

26. Peach Bottom 3 n I 1,133,000

27. Perry 1 Mark' III 1,153,000

28. Pilgrim l Mark: I 1.133,000

29. Quad Cities 1 II I 1* 1,133,000 I '

30. Quad Cities 2 II I I 1;133,000

31. River Bend l Mark! III 1,153,000

32. Susquehanna 1 Mark: II 1,212,000

33. Susquehanna 2 II I 1,212,000 i

34. Vermont Yankee Mark I.

1 I

1,133,000

35. Washington Nuclear 2 Mark' II I

1.200,000

-Other Reactors 1 Three Mile Island 2 '

1. B&W-PWR-Dry I

Containment 1,592,000

2. Shoreham GE*M~rk II 1,212,000

3. Big Rock Point GE-Dry Containment 1,118,000

4. Yankee Rowe West;i nghouse-PWR-Ory 1,135,000 Containment

5. Ft~ St. Vrain Highl Temperature Gas Cooled 822,000 1

These licensed reactors have not beeh included in the fee base since historically they have been granted ei;ther full or partial exemptions from .

the annual fees. The fees shown for these reactors are those fees for the particular type* of reactor, no adjustments have been made based on size or particular circumstance of the reactor;. Nonetheless, unless full waivers are granted, these licensees will pay .,at least a portion of the amount specified above. 1

Section 171.21 Refunds.

This section is being eliminated. Under current legislation, at least 45 percent should be collected. No refunds will be provided, although the fees will be calculated in such a manner as to not greatly exceed the 45 percent floor imposed by the legislation.

V. Environmental Impact: Categorical Exclusion The NRC has determined .that this final rule is the type of action described in categorical exclusion 10 CFR s1.2*2(c)(l). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final ru*le.

VI. Paperwork Reduction Act Statement This final rule contains no information collection

, . requirements and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1980 (44 u.s.c. 3501 et seq.}.

VII. Regulatory Analysis Section 7601 of COBRA required the NRC, by rule, to establish an annual charge for regulatory services provided to its applicants and licensees, that

when added to other amounts collected, equaled up to 33 percent of Comnission costs in providing those services. Section 5601 of the Omnibus Budget Reconciliation Act of 1987 requires that the NRC, for the fiscal years_ 1988 and 1989, increase the moneys collected pursuant to section 7601 and other authority to at least 45 percent of the Convnission's costs. For FY 1988, the NRC issued an interim rule which raised the collection of annual fees to be at least 45 percent of its budget and accordingly raised the annual fee for

- operating power reactors. For FY 1989 the NRC is revising its fee schedules in 10 CFR Part 170 to remove the fee ceilings ~n certain categories, to revise its professional hourly rate to reflect inflationary and, other increases since FY i981, to revise the ceiling of 33 percent contained in 10 CFR Part 171 to a target which approximates but will be at least 45 percent, and to include the collection of moneys from the High. Level Waste Fund administered by the Departm~nt of Energy.

This final rule will_ not have significant impacts on state and local governments and geographi~al regions; on health, safety, and the environment; or, create substantial costs to licensees, the NRC, or other Federal agencies*. The foregoing discussion constitutes the regulatory analysis for this final rule. -

VIII. Regulatory Flexibility Certification As required by the Regulatory Flexibility Act {5 U.S.C. 605(b)), the Commission certifies that this rule does not have a significant economic impact

- 59 ..

on a substantial number of small entities. In the notice of proposed rulemaking published on June 27. 1988 (53 FR 24085). the NRC invited any li-censee who considered itself to be a small entity subject to this regulation who detennines that, because of its size. it is likely to bear a dispropor-tionate adverse economic impact to notify the Comnission by providing responses to four general questions. The proposed rule was mailed to approximately 10,000 licensees under 10 CFR Parts 30-35, 39, 40, 50, 60, 61 and 70-73. About 9,000 of these licensees could be considered small entities, particularly in the area of materials licensing under 10 CF.R Parts 30-35 and 39. Of the 32 letters of comnents received, only twelve were from licensees *in the materials category and interest area. Of the twelve. only one licensee addressed the four questions on the impact as a s_ma11 entity. This c:ommenter*was concerned that the remova 1 of cei 1ings for topi ca 1 reports, dry storage systems,* and transport packages would have a much greater impact on that company than it would on a larger company and place an unfair competetive burden on small entities. It is readily recognized that this final rule will cause some licensees to pay more fees for topical report reviews . and other services

• However, the financial impact is related to the services provided by the NRC.

The size *of the -licensee is not a factor in the costs imposed. Based upon the number of. C0TfllJlents received on the proposed rule and on analysis of these comments, the NRC believes that this rule will not have a significant economic impact upon a substantial number of small entities.

IX. Backfit Analysis The NRC has detennined that the backfit rule, 10 CFR 50.109. does not apply to this final rule, and therefore, that a backfit analysis is not required for it because the final rule does not impose any new, more stringent safety requirements on Part s*o licensees.

X. List of Subj_ects Part 170 - Byproduct material, Nuclear materials, Nuclear power plants and reactors, Penalty, Source material, Special nuclear material.

I I

Part l71 - Annual charges, Nuclear power plants and reactors, Penalty.

For the reasons set out in the preamble and under the authority of the tttomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR Parts 170 and 171.

PART 170 - FEES FOR FACILITIES AND MATERIALS LICENSES AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT OF 1954, As* AMENDED

1. The authority citation for Part 170 continues to read as fol lows:

AUTHORITY: 31 U.S.Ce 9701, 96 Stat. 1051; sec. 30111 Pub. Lo 92-314, 86 Stat. 222 (42 U.S.C. 2201w); sec. 2019 88 Stat. 1242, as amended (42 UeS.C.

5841).

2. In§ 170.12, paragraphs (b) through (g) are revised to read as follows:

§ 170.* 12 Payment of fees.

(b) License fees. Fees for applications for permits and licenses that I '

are subJect to fees based on the full cost of the revi.ews are payable upon notification by the Commission. Each applicant will be billed at six-month intervals for all accumulated costs for each application the applicant has on file for review by the Co111T1ission until the review is completed. Each bill will identify the application~ and costs related to each. Fees for 4t applications for materials license_s not *subject ~to full cost recovery .must accompany the application when ft 1s filed.

(c) Amendment fees and other required approva 1s. Fees for applications*

for license amendments, other required appravals and requests for dismantling, decommissioning and termination of licensed activities that are subject.to full cost recovery are payable upon notification by the Corrmission. Each applicant will be billed at six-month intervals for all accumulated costs for each

- 62 ...

application the applicant has on file for review by the Corrmission, until the review is completed. Each bill will identify the applications and costs related to each. Amendment fees for materials licenses and approvals not subject to full. cost reviews must accompany the application when it is filed.

(d) Renewal fees. Fees for applications for renewals that are subject to full cost of the review are payable upon *notification by the Commission. Each

-plicant will be billed at six-month intervals for all accumulated costs on each application that the applJcant has on* file for review by the Corrmission until* the review is completed. Each bill will identify the applications and the costs related to each. Renewal fees for-materials licenses and approvals I '

not subject to ful 1 cost reviews must accompany the application when it is filed.

(e) Approval fees. {1) Applications for transportation casks, packages,

. d shipping container approvals, spent fuel storage facility design approvals, and construction approvals for plutonium fuel proces~ing and fabrication plants must be ~ccompanied by an application fee of $1500 (2) There is no application fee for standardized design approvals. The I'*

review fees for facility reference standardized design approvals and certifi-cations will be paid by the holder of the design approval or certification in five ( 5) installments based on payment of 20 percent of the application and approval/certification fee* (see footnote 4 to § 170.21) as each of the first

.. 63 -

five units of the approved/certified design is referenced in an application{s) filed by a utility or utilities. If the design(s) 1s*not referenced or if all costs are not recovered within, 5 years after the preliminary desf gn approval (PDA} or the final design approval {FDA), the vendor applicant* wHl pay the costs, or remainder of those costs, at that time. If the design is certified, the five-year deferral period is extended to ten years from the certification with the same proviso that 20. percent of the costs will be payable each time the design is referenced.

(3) Fees for other appl icatf ons that are subject to ful 1 cost reviews are payable upon notification by the Commission. Each *applicant will be billed at I

I six-month intervals until the review is completed. Each bi11 will identify the applications and the costs related to each. Fees for applications for materials approvals that are not subject to full cost recovery must accompany the application when it is filea.

(f) Special project fees. Fees .for applicotions for special projects such as topical reports, are based on full cost of the r-eviews and are payable upon notification by the Comnission: Each applicant will be billed at six-month intervals until the review is completed. Each bill will identify the applications and the costs related to each. All applications filed pursuant to

§ 170.31 must be accompanied by the $~50 application fee.

(g) Inspection fees. Fees for all routine and non-routine inspections will be assessed on a .per inspection basis, and will be billed quarterly if they are based on full cost recovery. Inspection fees for small materials pro-grams are billed upon completion of the inspection. Inspection fees are payable upon notification by the Co1m1ission. Inspection costs include prepar-ation time, time on site and documentation time and any associated contractual service costs but exclude the time involved in the processing and issuance of a 4ltotiGe of violation or civil penalty.

l '

3. Section 170.20 is revised to read as follows:

§ 170.20 - Average cost per professional staff-hour.

- Fees for permits, licenJes, amendments, renewals, special projects, Part 55 requalification and replacement

- examinations

. ~

and tests, other required approvals and inspections under§§ 170.21, 170.31 and 170.32 will be calculated based upon the full costs for the review using a professional staff rate per hour equivalent to the sum of the ayerage cost to the agency for a professional staff member, including salary and benefits, administrative support and travel.

The professional staff rate will be revi~ed on a fiscal year basis using the most current fiscal data available and the revised hourly rate will be

- 65 .,

• published in the Federal Regis~er for each fiscal year if the rate increases or decreases. The professional staff rate for the NRC for FY 89 is $86 per houre

4. Section 170.21 is revised to read as follows:

§ 170.21 Schedule of fees for production and utilization facilities, review of standard reference design approvals, special projects, and inspections.

Applicants for construction permits,. manufacturing 1i censes, operating licenses, approvals of faci11ty standard reference designs, requalification and replacement examinations for reactor* operators, and s*pecial projects and t

I holders of construction permits, licenses, and other approvals shall pay fees for the following categories of services.

SCHEDULE OF FACILITY FEES (See footnotes at end of table)

, Facility categories and type of fees Fees 1 , 2 A. Nuclear Power Reactors

- Application for Construction Permit ...**...**.*.**.***..***..**...** $125,000 Construction Permit, Operating License *....***..**....**......*.*..* Full Cost Amendment, Renewal, Dismantling~Oecommissioning and Termination, Other Approvals ....*....*.*..........*...***....*.... Full Cost I.rispectio~s 3 Full Cost B. Standard Reference Design Review4

-Preliminary Design Approvals, Final Design Approvals, Certification ..**...*.-.........*....**.*...**........** Full Cost Amen~ment, Renewal, Other Approvals Full Cost

C. Test Facility/Research Reactor/Critical Facility Application for Construction Permit ********.*.*.***.*********.** -... $ 5,000 Construction Permit, Operating License . * * * . * * . * * * . * * * * * * . * * . * * * * . *

• Full Cost.

Amendment, Renewal, Dismantling, Decommissioning and Termination, Other Approvals **.****.*.. : .**..**.**.*.******..*..* Full Cost Inspections 3 **************e*************o****************e CO lloe Fu11 Cost D. Manufacturing License Application $125,000 Preliminary Design Approval, Final Design Approval ...*.****..*..**.. Full Cost Amendment,. Renewal, Oth~r Approvals ....*....*..........*..*.*....... Full Cost Inspections 3 ******************************************************** Full Cost E. Uranium Enrichment Plant Application for Construction Permit .*..*..*.*......*.*..*....*..*..* $125,000 Construction Permit, Operating License ***.****.**.*******..*..****.** Full Cost Amendment, Renewal, Other Approvals .....****.*..*..*.*.**..*..*.**.. Full Cost I \

Inspections 3 *** .. ******o********o*************oeeeeeccee***e.aeo,oe 4'*o Full Cost

F. Advanced Reactors Application for Construction Permit ..**.*.**.***********.*...****..** $125,000 Construction Permit, Operating License ***..**.***..*****.*.*******.* Full Cost Amendment, Renewal, Other Approvals ******...***.*.*.***..**..***.*** Full Cost Inspections 3 Full Cost G. Other Production and Utilization Facility Application for Construction Permit $125,000 Construction Permit, Operating License *.....*...*..........*.*..**.. Full Cost I

I Amendment, Renewal, Other Approvals .....................*........... Fu1 l Cost Inspections 3 *******************************t:1************************ Full Cost H. Production or Utilization Facility Permanently Closed Down Inspections 3 0 a,* *6 6. 0 **

• 0

. Ill) o O O. e O O a O G Cl* *

. 0.0 o Q O ** e O 0 Cl O. flc e f, 0 0

• e G Full Cost

• I. Part 55 Reviews I*,

Requalification and Replacement Examinations for Reactor Operators .............. ., ................................... Full Cost

J. Special Projects Approvals ooe*****o*********************************o*o*****e*oooo*e* Full Cost 1 Fees will not be charged for orders issued by the Commission pursuant to

§ 2.204 of this chapter nor for amendments resulting specifically from such Commission orders. Fees will be charged for approvals issued pursuant to a specific exemption provision of the Commission's regulations under Title 10 of the Code of Federal Regulations (e.g., §§ 50.12, 73.5). and any other sec-tions now or hereafter in effe~t regardless of whether the approval is in the form of a license amendment, letter of approval, safety evaluation report, or other form. Fees for licenses in this. schedule that are initially issued for .less than full power are based on review through the issuance of a full power license (generally full power is considered 100% of the facility's full rated power). Thus, if a lic~nsee received a low power license or a temporary license-for less than full power and subsequently re.ceives full power authority (by way of license amendment or otherwise), the tota 1 costs for the license will be determined through that peried when authority is granted for full power operation. If a situation arises in which the Commission determines that full operating power for a particular facility should be less than 100% of full rated power, the total costs for the 1i cense wi 11 be at that decided lower operating power level and not at the 100% capacity.

- 70 ..

2 All *charges. will be based on expenditures for professional staff time and appropriate contractual support services. However, in no event will the charges be less than the application fee or, where no application fee is speci-fied, will charges be l_ess than $150. For those applications currently on file, the professional staff hours expended for the review of the application up to the effective date of this rule will be determined at the professional rates established for the June 20, 1984 rule. For those applications currently on file for which review costs have reached an applicable fee cei 1i ng estab-e 1 i shed by the June 20, 1984 rule, but are still pending completion of the review, the costs incurred after the ceiling was reached up to the effective date of this rule will not be billed to the applicant. Any professional hours expended on or after the effective date of this rule will be assessed at the rate established by § 170.20. This rate will be reviewed and adjusted annually as necessary 'to take into consideration increased. or decreased costs to the Com-mission. If such rate increases or decreases in a given fiscal year, the new rate will be published in the* Federal Register. In the event a review covers

& combination of licensing a~tions in a one-step licensing process such as a combined construction permit and op~rating license review (interim, temporary, or other), the fees charged will be the .total of the costs for the licensing action.

3 Inspections covered by this schedule are both routine and non-routine safety and safeguards inspections performed by NRC for the purpose of review or fallowup of a licensed program. Inspections are performed throughout the full term of the license to ensure that the authorized activities are being

conducted- in accordance with the Atomic Energy Act of 1954, as amended, other legislation, Commission regulations or ~rders, w-the terms and conditions of the license. Non-routine inspections ~hat result fr-0m third-party allegations will not be subject to fess.

4 Collection of the review costs foT' a pT'eliminary design approval (POA) and final design approval (FDA) are deferred, T'espet:tively, for a period of five years from the appT'oval; except that, if the design is referenced during that period, 20 percent of the total a,sts wi11 be payable by the holder of the design approval or certificate as each reference is made until the full costs are paid. If the design is certified, the five year deferral period is extended to 10 years from the certification, with the same proviso that 20 per-cent of the costs will be payable each time the_ design is referenced. In the event the fu 11 costs are not recovered by the enfll mf the app 1i cab 1e def err a1 period, the holder of the design appl"Oval or ceTtifti~ate must pay the remainder of any costs not previously T"et:1)Vered by the NRC. !l\l)plications for amendments to POAs, FDAs and certifications are sllbject to fuif!I costs and will be billed upon completion of the review. <I

.. 72 -

5. Section 170.31 is revised to read as follows:

§ 170.31 Schedule of fees for materials licenses and other regulatory services, including inspections.

Applicants for materials licenses and o.ther regulatory services and holders of materials licenses shall pay fees for the following categories of services. This schedule includes fees for health* and safety, and safeguards 4t inspections, where app1i cab 1e.

SCHEDULE OF MATERIALS FEES (See footnotes at end of table) I '

Category of materials licenses and type of fees 1 2 3

-Fee '

e1. Special Nuclear Material:*~

A. Licenses for possession and use of 200 grams or more of plutonium in unsealed form or 350 grams or more of contained U-235 in 1 **

unsealed form or 200 grams or more of U-233 in unsealed form. This includes applications to terminate licenses and to authorize

deco*issioning, decontamination, reclamation, or site restoration activities as well as licenses authorizing pos~ession only:

App 1i cation ..... Of) ** :

• 0 f) e ., Cl C O

• 0 $ Q O (I C * * ('i *

• 6 e (I e:

• e O 0 $ 150 License, Renewal, Amendment .*..*.************.. Full Cost Inspections:

Routine *****o*o**t1********o*o******oeeoeeC1 Full Cost Nonroutine Full Cost B. Licenses for receipt and storage of spent fuel at an independent spent fuel storage jnstallation (ISFSI):

App 1i cation o **** " ** o *** Q " ** "

• Cl o o i) ***** o ......... o c $ 150 License, Renewal, Amendment .*********..****. c ** Full Cost Inspections:. .

Routine O e

• O e a O e *

• e Cl c e *

• O *-O e *o C C <<:, e e Full Cost Non rout i ne a * ** '° 12 Q * * * * *_ o _. * * * *  ; * * * ,*

• c * " .,

• o * *

• Full Cost I**

C. Licenses for possession and use of special nuclear material in sealed sources contained in devices used in industrial measuring systems: 4

Application - New license *..*.**.*..**.......*. $ 230 Renewa 1 **.***..****.*.***.** _ ***.*.**.***....... $ 120 Amendment ....*..*** ,_ .**.*****.*.**...*.*.**.**. $ 60 Inspections:

Routine $ 210 Non routine ............................... . $ 640 49 0. All other special nuclear material licenses, except licenses authorizing special nuclear material in unsealed form in combination.

that would constitute a critical quantity, I '

as defined in§ 150.11 of this chapter, for which the licensee shall pay the same fees as those for Category lA: 4 Application - ~ew license $ 350 Renewal O 0 0 0 0 -* - 0 Cl a..

& 0 0 Cl a G $ 358 Amendment,, ..*.... C! ** I> ** o *********** Ill ***** ""

• a

• Ill

• o $ 120 Inspections:

Routine ................................... $ 320 I*,

Nonroutine $ 370

., 75 ..

2. Source material:

A. Licenses for possession and use of source material in recovery operations such as milling, in-situ leaching, heap-leaching, refining uranium mill concentrates to uranium hexafluoride, ore buying stations, ion exchange facilities and in processing of ores containing source material _for extraction of metals other than uranium or thorium, including licenses authorizing I

the possession of byproduct waste material l

(~ailings) from source material recovery operations, and licenses authorizing decommissioning, reclamation or restoration activities as well as licenses authorizing the possession and maintenance of a facility in a standby mode:

Application ************************************ $ 150 I \

License, Renewal, Amendment ************ o******* Full Cost

• Inspections:

Routine o**********e*****e*c**oQeGeeocec,eoco Full Cost Nonroutine ************o*****e******o**oo** Full Cost

.., 76 -

B. Licenses for possession anQ use of source material for shielding, except as provided for in§ 170.ll(a)(S):

Application - New license *****.*..************* $ :60 Renewa 1 **.* -* * (I ****** o

• G * * * * * * * * * * * * * * * * (l * * *

• ll) ** $ '60 Amendment ......................... " " *.*...*..*.* $ 60 Inspections:

Routine

• II

• e * *

• a

• e * * $ l30 NonrQutine ****************** t) ************* $ 160 I

C. All other source materi'al licenses: I Application - New license ...........*.**..**..* $ 350 Renewa 1 ***..****.*****.*....**.......*.***..**. $ 230 Amendment ***..**..*..*********** v ************** $ 120 Inspections:

Routine $ 370 Nonrouti ne ...........*.................... $ 690

3. Byproduct material:

A. Licenses:of broad scope for possession and use of byproduct material issued pursuant to

- 77 ...

Parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution to licensees:

Application - New license $1,200 Renewa 1 ******.**.* Q ********* _e- * * * *

• 0 *** 0 0

• II

• e C ** $ 700 Amendment ..****..**..**..***..**.. o 0 *********** $ 120 Inspections: 5 Rout i ne ..... f) ******** Cl *** c "'

• o °' ** o

• o

• 41 o o *** $ 950 Nonroutine 0

• 0 , 0 (I Q 0 0 o O IC> $1,000 B. Other licenses for possession and use of l I

byproduct material issued pursuant ~o Part 30 of this.chapter for processing or manufacturing of items containing byproduct material for commercial distribution to l icen~ees:

Application -*New license ...*..*.*...**.*.*..** $ 460 Renewal o 6

• o

• o ********* o *********** o

• o ,., * * * *

• 0 *** $ 460 Amendment O O O O O O e Cl O 6 $ 120

_Inspections: 5 Rout i ne .*.. o * * * "' * * * * * " * * * * * (I

• o ********* o o n $ 480 Nonroutine $ 900

C. Licenses issued pursuant to§§ 32.72, 32.73, and/or 32.74 of Part 32 of this chapter authorizing the processing or manufacturing and distribution of radiophannaceuticals, generators, reagent kits and/or sources and devices containing byproduct material:

Application - New License ********************** $1,400 Renewal **************o*****;******************* $1,400 Anlendment ******************************* ., ****** $ *230 Inspections: I I

Routine .******** o * * * * * * * * * * * * * * * * * * * * * * * * * * $ 640 Nonroutine ********** ~~ ******************** $ 850 D. Licenses and approvals issued pursuant to

§§ 32.72, 32.73, and/or 32.74 of Part 32 of this chapter authortzing disttibut1on ~

of radiophannaceuticals, generators, reagent kits and/or sources or devices not involving processing of byproduct material:

Application - New License ********************** $ 700 Re newa 1 ************************ o * *

• GI *********** $ 700 Amendment *** e e *

• e e e

• e

• e e O e e

• e e O O e e G e e e

• e *

• e e e e 0 $ 120

- 79 ..

Inspections:

Routine o o O e o **Ci o * * * * * * ,c, e e

• 0 C o a ,o e O o o 04>> o e o Ci $ 370 Nonroutine $ 530 E.. Licenses for possession and use* of byproduct material in sealed sources for irradiation of materials in which the source is not removed from. its shield (self-shielded units):

Application - New License *******oeogo*ooeeoo&o,s $ 230 Re newa1 * * * * * * * * *** Cl ***** o * *

• o * * * * * * " * * () Cl *

• o * * ** $ 170 Amendment °' ****** ~ ****.************* "' Cl ******* .u * * * $ 120 I I.

Inspections:

Routine **************************e*o*ooe****o $ 210 Nonroutine eo****************c,oeo******oeo $ 320 F. Licenses for possession and_ use of less than 10,000 curies- of byproduct_material in sea.led sources for irradiation of materials in which the source is exposed for irradiation purposes: I',

Application - New License ******ed,aeooc,ooeoocoee $ 580 Renewal . o * * * * * * * * * *

• o o * * * * * * * ,., * " Cl

• o o

• o

• Cl

• o *** o * $ 350 Amendment O e e i14 O 9 00 0 09 9 0 0 0 0 9 0 ,e COO O Cl O O ,P Q O O O 84 b 6 $ 230

- 80 ..

Inspections:

Routine ooo****o.oo***************o11*0**0*0*** $ 270 Nonroutine e C a ** * ** * * * * *-* * * * * * *

• e *

• 9 $ 580 G. Licenses for possession and use of 10,000 curies or more of byproduct material in sealed sources for irradiation of materials in which the source is exposed for irradiation purposes:

Application - New License $2,300 Renewa1 ** o ************************************** $ 930 Amendment *.........* o * * * * * *

• o * * .. * * * * * * * * * * * * .* * * * $ 230 Inspections:

Routine ....... *........................... . $ 480 Nonroutine .......**.....*.**.**.....*.**.. $ 640 H. Licenses issued pursuant to Subpart A of Part 32 of this chapter to distribute items*

containing byproduct material that require device review to persons exempt from the licensing*requirements of Part 30 of this chapter, except specific licenses authorizing redistribution of items that have been

~ 81,-

authorized for distribution to persons exempt from the licensing* requirements of Part 30 of this chapter:

Application - New License $ 580 Renewa 1 0 ............. e *** q e * * * * * * * * * * * * ., * & IP 6 *** 0 $ 230 Amendment **********.**.**.****..** ***.******. : ** $ 120 Inspections:

Routine $ 320 Nonrouti*ne ............................. o * <<>. $ 320 I. Licenses issued pursuant to Subpart A oi I I

Part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require device evaluation to persons exempt from the licensing requirements of Part 30 of this chapter, except for specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of Part 30 of this chapter:

.. 82 -

Application - New License ..**.**.*.***..*..*.*. $ 290 Renewa 1 .*..***.*.*.*.**.*****.******.***..***** $ 230 Amendment ********.*.***.**********.*** *..*.***.. $ 60 Inspections:

Routine * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *

• e *

$ 210 Nonrout i ne .*..*.*..**.*.....**.**.**. ** *.*. $ 320 J. Licenses issued pursuant to Subpart B of Part 32 of this chapter to distribute items containing byproduct material that require sealed source and/or device review to persons generally licensed under Part 31 of this chapter, except specific licenses authorizi'ng

• redistribution of items that have been authorized for distribution to persons generally licensed under Part 31 of this

• - chapter:

Application - New License .**.****.***.******..* $1,200 Renewa 1 ***********..****** ~ ****** o ************** $ 700 Amendment **.**.*.*.*.. **..*..**..*.*..*.......** . $ 230 Inspections:

Routine $ 3ZO Nonroutine ... 0 .......................... 0 ..................... o** $ 320

K. Licenses issued pursuant to Subpart B of Part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require sealed source and/or device review to persons generally licensed under Part 31 of this chapter, except for specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under Part 31 of this chapter:

Application - New License ***.*....*...*.*.*.... $. 290 I I

Renewal ...*.* o ************ ************* ~ ******** o $ 230 Amend.me nt ***..******** c ************ o c * ~ *** * ** o ** $ 60 Inspections:

Routine s

• c*

• o *

• o * * * * * * *

• e *

• e t1 $ * ,c

• q * <1 * *

• o * * * $ 320 Non rout; ne~ e 0 e 0

• C> 0 D O  !) 0 0 $ 320 L. Licenses of broad scope for possession and use of byproduct material issued pursuant to Parts 30 and 33 of this chapter for research.

and development thet do not authorize commercial distribution:

- 84 ..

Application - New License .**.***.**..*..*.*..** $1,200 Re newal .* o * * * * * ***** $ *********** e * * * * * * * * * * * * * * $ 700 Amendment ******** o * * * * * * * * * * * * * * * * * * ***** o * * * * * $ 120 Inspections:

Routine **********************o******o***** $ 420 Non routine ........... : . o **** o *********** o * $ 530 M. Other licenses for possession and use of byproduct material issued pursuant to Part 30 of this chapter for research and development that do not authorize commercial distribution:

I

, I Application - New License $ 700 Renewa 1 ..*...*..... o ************************* G * $ 460 Amendment .*..*.*...*........... °' * * * * * * * * * * * * * * * $ 120 Inspections:

Routine $ 370 Nonroutine $ 420 N. Licenses that authorize services for other licensees, except for leak testing and waste l I disposal pickup services:

Application - New License $ 930 Renewal *********************<>****,;,**********e** $ 930

- 85 ..

Anlendment

• e

• e * *** 0 e

• e e e C G b O (I O Cl C

• G O O e O Cl G O o & G <II O O .0 $ 120 Inspections:

Rout; ne

• e e e ** e e e e e

• 0 e e O $

• Cl e e O O fl *

• 0 0 0 0. e O 0 $ 320 Non routine e a e O e Cl l'J e e o O e O e e e e $ Cl e e $ 320

0. Licenses for possession and use of byproduct material issued pursuant to Part 34 of this chapter for industrial radiography operations:

Application - New License $ 700 Renewa 1 **************** o ** o * * * *

• o ..... o o * "

• o **** o * $ 700 Anlendment e O e e * * * ~ 0 8 e e O e e e ti' 0 o, 0 e c, .c, 0 0 O O O C O G $ 230 I J

• Inspections: 5 Rout 1ne ******************.************** ~ ** $ 530 Nonroutine ................................ $1,200 P. All other specific biproduct material licenses, except those in Categories_4A through 9D:.

Application - New License **************ooeeecee $ 230 Renewa 1 **** ~ ***** o ********* C, ********* o

• e ******* $ 120 Amendment ******** , ****** , , ******** e :

• o

• o ** e ** o ** $ 60 Inspections:

Routine $ 530 Nonroutine

• 0 0 S O

• 0 0 0

• 0 0 0 0 0 Cl O O

• 0. 0 0 0 (I

• 0 0 0 0 0 6 $ 530

4. Waste disposal:

A. Licenses specifically cWthorizing the receipt of waste byproduct material, source material or special nuclear materiai from other persons for the purpose of commercial disposal by land burial by the licensee; or licenses authorizing contingency storage of low level radioactive.

waste at the site of nuclear power reactors; or licenses for treatment or disposal by incineration, packaging of residues resulting from incineration and transfer of p~ckages to another person 1 I

authorized to receive or dispose of waste material:

Application $ 150 License, renewal, amendment *...**.**.****...... Full Cost Inspections:

Routine 0 * *

• 0 *

• 0 ~. '- &

& * ,0

• 5

• O o t>

0

• 0 Cl o o 10, 0 o ti Full Cost Nonroutine ****************OOO Q.Q.O OCIGtO Full Cost B. Licenses speci_fically authorizing the receipt of waste byproduct material, source material, or special nuclear material from other persons for the purpose of packaging or repackaging the

... 87 -

material. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material~

Application - New License .*****.*************** $1,400 Re newal * * (l

• e **** 0

• 0 e e e ** e G * *

• 6 0 t, 0 e O <> * * & 0 C O

• Q (} G C $ 930 Amendment 111

• e * *

• e e e

• e *

• e

• P e e e O O Q * * (j e e **

• e O O Cl O & * $ 350 Inspections:

Routine $1,000 Nonroutine oeooeoaoeooe0o******c&**cooc-ccoJo $ 740 C. Licenses specifically authorizing the receipt of . I I

prepackaged waste byproduct material, source

• material, or special nuclear material from other persons. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material:

Application - New License ....*...******..****.* * $ 930 Renewa 1 0 ** e *** e O

• e

• Cl ** 0

• C, **

• e

• f) G C * $ 0 C,

• e O O

• 0 0 e

• G Q $ 460 Amendment O *** 0 e e e

• e e e Ill O O e O e O e

• e O

• a O 6 G ~ e fl O* 41 0 G $ 120 Inspections:

Routine $ 740 Nonroutine $ 950

5. Well logging:

A. Licenses specifically authorizing use of byproduct material, source material, and/or special nuclear material for well logging, well surveys, and tracer studies other than field flooding tracer studies:

Application - New License $ 700 Renewa 1 **.*.*****.**. o ************************* $ 700 Amendment .***.*****..*....*. e ****************** $ 170 Inspections:

I Routine * * * * * * *

• c

• e * * * * * * * * * * * * * * * * * * * * * * * *

$ 370 I Nonroutine *****************************~** $ 370 B. Licenses specifically authorizing use of byproduct material for field flooding tracer studies:

Application $ 150

~icense, renewal, amendment ....*..**...**.***.* Full Cost Inspections:

Routine ****o**************o*********** .. *.*** $ 320 Nonroutine $ 480

.. 89 ..

6. Nuclear laundries:

A. Licenses for commercial collection and laundry of items contaminated with byproduct material, source material, or special nuclear material:

Application* New License ........**....*.**.... $ 700 Renewal **o*******--*************~********e***oo* $ 700 Amendment

• e *

• iO 0 0 0 0 0 0 0 e O O d) 0 0 Cl 0. $ 170 Inspections:

Routine c************eo** .. ***o*****o**e***o $ 530 Nonroutine $ 850 *I I

7. Human use of byproduct, source, or special nuclear material:

A. Licenses issued pursuant to Parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material; or special nuc1ear material in sealed sources contained in teletherapy devices:

Application* New License *******oeoecoeoeeeoeoe $. 580 Ren*ewa l O 0 0 0 0 Ci 0 Ill Q * '0 0 0 0 ti Cl Cl O $ 350 Amendlltent 0 Cl V O 0 C

• e O e O 0 0 0 Cl O 0 (I 0

• A $ 230

- 90

• Inspections:

Routine * ** e

• e *

• e e * * *

• O & Te fee categoT"i-es_ in which case the amendment fee for the highest fee* category would apply, except that

... 96 -

applications for amendment of licenses in fee Categories lA and 18, 2A. 4A, SB lOA, 10B, 11, and 12 must be accompanied by an application fee *of $150 with the balance due upon notification by the Conmission in accordance with§ 170.12(c).

An application for amendment to a materials license or approval that would place the 1icense or approval in a higher fee category or add a new fee category must be accompanied by the prescribed application fee for the new category.

An application for amendment to a license or approval that would reduce

--he scope of a licensee's program to a lower fee category must be accompanied by the prescribed amendment fee for the lower fee category.

Applications to tennina.te licenses authorizin.g small materials programs, when no dismantling or *decontamination procedure is required, shall not be subject to fees.

(e) Inspection fees - Separate charges will be assessed for each routine lfnd nonroutine. inspection performed, except that inspections resulting -from investigations conducted by the Office* of Investigations and nonroutine in-

~pections that result from third-party allegations will not be subject to fees.

If a licensee holds more than one materials license at a single location, a fee *~

equal to the highest fee category covered by the, licenses will be assessed if the inspections are*** conducted at the same time, except in cases when the inspection fees are based on the full cost to conduct the inspection. The fees assessed at full cost will be detennined based on the professional staff time required to conduct the inspection multiplied by the rate established under

§ 170.20 of this part, to which any applicable contractual support service costs incurred w111 be added. See Footnote 5 for other inspection notes.

Inspection fees are due upon notification by the Comnission in accordance with§ 170.12(g).

2 Fees will not be charged for orders issued by the Comnission pursuant to

§ 2.204 of Part 2 nor for amendments resulting *specifically from such Commission orders. However, fees will be charged for approvals issued pursuant e to a specific exemption provision of the Comnission's regulations under Title 10 of the Code of Federal Regulations* (eeg., §§ 30.11, 40.,14, 70.14, 73.5, and any other such sections now or hereafter in effect) regardless of whether the approval is in the fonn of a license amendment, letter of approval, safety evaluation report, or other fonn. In addition to .the fee shown, *an applicant may be. assessed an additional fee for sealed source and device evaluations as shown in Categories 9A through 90.

3 Fu11 cost fees will be detennined based on the professional staff time and appropriate contractual support services expended for review of the application or to conduct the inspection. For those applications currently on file and for which fees are detennined based on the full cost expended for the review, the professional staff hours expended for the. review of the application up to the effective date of this rule will be detennined at the professional rate established for the June 20, 1984 rule. For those applications currently

- 98 '!"

on file for which review costs have reached an applicable fee ceiling estab-lished by the June 20, 1984 rule, but are still pending completion of the review, the cost incurred after the ceiling was reached up to the effective date of this rule will not be billed to the applicant. Any professional hours expended on or af~er the effective date of this rule will be assessed:at the rate established by§ 170.20 of this part. In no event will the total review 1

costs be less than the application fee.

4 Licensees paying fees under Categori,s lA and 1B are not subject to fees under Categories lC and 10 for sealed sources authorized in the same license except in those instances in which an application deals only with the:sealed I

I sources authorized by the license. Applicants for new licenses or renewal of existing Jicenses that cover both byproduct material and special f'IUC1ear material in sealed sources for use in gauging devices will pay the applicable application or renewal fee for fee Category lC only.

5 For a license authorizing shiel~ed radiographic. installations or manufacturing installations at more than one address, a separate fee will be assessed for i,nspection of each location, except that if the multiple installations are inspected during a single visit, a single inspection fee will be assessed.

- 99"'

6. Section 170.32 is revised to read as follows:

§ 170.32 Schedule of Fees For Health and Safety, and Safeguards Inspections For Materials Licenses Materials licensees shall pay inspection fees as set forth in § 170.31.

PART 171 - ANNUAL FEE FOR POWER REACTOR OPERATING LICENSES 7e The authority citation for Part 171 is revised to read as follows:

AUTHORITY: Section* 7601, Pub. L.99-272, 100 Stat. 146, as amended by I I

sec. 5601, Pub. L. 100-203, 101 Stat. 1330-275 (42 U.S.C. 2213); sec. 301, Pub.

L.92-314,

• 86 Stat. 222, ( 42 u.s.c. 220l(w)); sec*. 201, 82 Stat. 1242_, as amended (42 u.s.c. 5841).

8. In§ 171e5, the following definitions are added:

§ 171.5 Definitions

• * * * * ,\

11 Budgeted obl igat_ions" means the projected obligations of the NRC that likely' will result. in payments by the NRC during the same or* a future fiscal

- 100 -

year in providing regulatory services to licensees. For this purpose budgeted obligations include, but are not limited to, amounts of orders to be placed, contracts to be awarded, and services to be provided to licensees. Fees billed to licensees are based on budgeted obligations because the NRC's annual budget is prepared on an obligation basis.

9 * "Overhead costs" means (1) the Government benefits for each employee such as leave and holidays, retirement and disability costs, health and life insur-ance costs, and social security costs; (2) Travel Costs; (3) direct overhead, e.g., supervision, program support staff, etc.; _and (4) indir~ct costs, e.g.,

funding and staff for administrative support activities. Factors have been developed for these overhead costs which are applied to hourly rates developed for employees providing the regulatory services within the categories and activities applicable to specified types or classes of reactors. The Com-tltission views these costs as being reasonably related to the regulatory services provided to the 11 censees and, *th.ere fore. within the meaning of sec-ti on 7601, COBRA.

9. In § 171.15 paragraphs (d) and (e) are removed and paragraph {c) is revised* to read as follows:

- 101 ..... ,.

§ 171.15 Annual Fee: Power reactor operating licenses.

(c) If the basis for the annual fee 1s greater than 45 percent of the NRC budget, less the sum of moneys estimated to be collected from the High Level Waste (HLW) fund administered by the Department of Energy and the total estimated fees chargeable under Part 170 of this chapter, then the maximum annual fee for each nuclear power reactor that is licensed to operate shall be.

calculated as follows:

(NRC FY Budget x .45) minus Sum of. HLW moneys and estimated Part 170 fees equals fees to be collected under Part 171.

.. 102 -

Part 171 fees to be collected on a schedule based on the total from categories shown in the following table:

Part 171 Fees By Reactor Cate ory - Summary (Fees In Millions 1 WITH MINOR ADJUSTMENTS FOR PLANTS WEST OF ROCKIES OR WESTINGHOUSE PLANTS. WITH ICE CONDENSERS THE FOLLOWING APPLY TO PLANT/CONTAINMENT TOTAL TYPE NUMBER BUDGET BASE X.84 FEE COLLECTEQ GE MARK I (24) $1.349 $1.133 ,$ 27 .19

-GE MARK II ( 7) 1.443 1.212 8.48 GE MARK III ( 4) 1.373 1.153 4.61 B&W { 8) 1.896 1.592 12.74 CE (15)

• 1. 391 1.168 17.52 I I

WESTINGHOUSE ifil 1.352 1.135 54.48 106 $125.0 I'*

• 103 -

§ 171.21 [Removed].

10. Part 171 is amended by removing§ 171.21.

Dated at Rockville; Maryland this;l.~'!!day of VuJvv- , 1988.

For the Nuclear Regulatory Commission.

/4_

Assistant Secretary of the Commission I

I

c. '~-'*'!.

j .,_; ,

• NUMBER J~ED RULE PR / 7 (J 17 I Nuclear Fuel Services, Inc.

(.5 3 Frz 2'-to 7?} 205 Banner H ill Rd.

Erwin, t l\lBMsoU

/615) 743-1,f bflR['

• aa AUG \6 All :07 21G-88-0081 GOV-01-71 ACF1194 AUGUST 12, 1988 CERTIFIED MAIL RETURN RECEIPT REQUESTED Secretary U. s. Nuclear Regulatory Com~ission Washington, DC 20555 ATTN: Docketing and Service Branch Gentlemen:

Nuclear Fuel Services, Inc. (NFS) has reviewed the proposed amendment to Title 10, Code of Federal Regulations, Part 170 (10 CFR 170), "Proposed Revision of Fee Schedules," as described in 53 FR 24077 and offers comments and recommendations. NFS recognizes the need for modification of the fee schedule to update rates and to comply with the amended legislation which became law on December 22, 1987. Therefore NFS has no comment on the specific contents of the proposed rule change.

As we commented in 1978 and again in 1983, when comments were solicited concerning similar rule change proposals, NFS considers the concept of full cost recovery of renewal review as reasonable; however, we believe that the license term should be extended beyond the nominal five years granted to Part 70 licensees. The proposed license renewal fees, which will enable the NRC to fully recover the costs of their reviews, are undefined, open-ended and obviously beyond any cost control of the licen~ee.

The overall costs of license renewal application preparation and review, both those generated in-house and within the NRC, may be very significant to most licensees. This is particularly true in small to medium sized companies where the preparation of a full license renewal application every five years may strain the man-power resources normally available. While the infinite nature of the fee schedule may be unavoidable, the frequency of the renewal reviews could reasonably be defined by establishing the license term at 10 years or longer. Additionally, the term of licenses should be specified in Part 70 as it is in Part 73.

AUG st ,988

J. S .,. ... ~ .. ..._,t.JLAH)fll tOMM1SSIOh OOCJr,HING & §(kVIC~ SECllON OfFICE OF me SECReT ARY ot 'rl--!t r,:~,.,~,,H~St\GH

21G-88-0081 GOV-01-71 ACF1194 Page 2 NFS believes that the NRC could adequately discharge its statutory responsibility to protect public health and safety with license terms of 10 years or more in that they retain the right of amendment or termination. Further, industry technology is sufficiently stable to permit such license terms without fear of out-dating. However, if license update should become necessary due to technology changes, it could readily be accomplished through the amendment procedure.

Although these comments are submitted slightly beyond the 30 day comment period indicated in the Federal Register, NFS respectfully 9 requests that they be given appropriate consideration.

Your;;:cr~

A. Long O neral Manager JAL/RLI:rej

~~~ij1Eiu:stf PR /70 I L1I @

~ CS- '?J F fl l-'-/ o j 1) i!O CKU U

~1'.) Nf-' C STATE OF ILLIN0IS *aa AUG 15 P2 :04 DEPARTMENT OF NUCLEAR SAFETY 1035 OUTER PARK DRIVE SPRINGFIELD 62704 (217) 785-9900 TERRY R. LASH DIRECTOR August 11, 1988 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Proposed Rule, "Revision of Fee Schedules; 10 CFR Parts 170 and 171; 53 Federal Register 24077 - 24093 (June 27, 1988).

Dear Sir:

The Illinois Department of Nuclear Safety (IONS) hereby submits its comments on the U.S. Nuclear Regulatory Commission's (NRC) proposed rule for revising its fee schedules in response to recent legislation enacted by the Congress. IONS is the lead state agency for regulation of radioactive materials and assuring radiation protection in Illinois.

IONS objects to the proposed rule for the same reasons that it objected to NRC's previous efforts to implement the Congressional mandate contained in the Consolidated Omnibus Budget Reconciliation Act of 1985 {COBRA). Specifically, IONS opposes the proposed fee revision because it would assess additional licensing fees on nuclear power reactors and uranium fuel cycle facilities, while leaving largely unchanged the fees assessed on materials licensees.

IONS believes that NRC once again has los t sight of Congress' directive that the charges assessed pursuant to Section 760l(b)(I){B) of COBRA are to be "reasonably related to the regulatory services provided by the Commission and shall fairly reflect the cost to the Commission of providing such services."

There is nothing fair about a fee system that would increase fees on power reactors and uranium fuel cycle facilities by 33% or more, while leaving materials license fees at the same level that they were in 1984.

Furthermore, as IONS noted in its comments to NRC regarding its 1986 proposed implementation of the mandates contained in COBRA (Federal Register 24078 - 24090, July 1, 1986), any modification of the fee schedule should be

fl. S. NtfCl.tAR lffCUL.,Uc.'51lY COMMfSSIO&

DOCKtTING & SERVICE SECTION OFFICE OF THE S~CRET ARY OF THE COMMl~SICN

U.S. Nuclear Regulatory Commission August 11, 1988 Page 2 sensitive to the impact it might have on Agreement States. Agreement States find it difficult to assess fees that are higher than those assessed by NRC.

Thus, to the extent that it is willing to subsidize materials licensing activities through reactor license fees, NRC condemns Agreement States to being underfunded. This underfunding might encourage current Agreement States to return regulatory authority to the NRC, thus increasing significantly the costs incurred by the NRC in licensing materials users. Underfunding would also discourage other states from pursuing Agreement State status; thereby discouraging actions that could reduce NRC s costs.

1 For the two reasons stated above, IONS believes that NRC should increase the fixed fees assessed material licensees. IONS notes that the full explanation for the proposed Section 170.31 is three sentences and only explains why NRC is proposing to remove ceilings. (53 Federal Register 24080.) NRC has not explained why it is not increasing the fixed fees. IONS believes that, in most cases, it is appropriate to raise the license fees by 33%, this being the increase in the professional hourly rate. Assuming that the number of professional hours required to conduct licensing activities has not changed, the fees should be changed to reflect the increase in hourly rate. In those cases where the 1984 fees were too low, it may even be appropriate to increase the fees by more than 33%. Only where the fee established in 1984 represents an overestimate in the cost of providing licensing services is it appropriate to leave the fee unchanged. Failure to modify the fixed license fees in this manner will have the absurd result of materials licensees paying proportionately less for licensing services after the rule change than they do now.

IONS notes, moreover, that there are some aspects of the proposed rule that represent an equitable and thoughtful approach to implementing Congress' mandate to NRC. IONS supports NRC 1 s proposal to raise the staff rate from $60 to $80 per professional hour. This revised rate more accurately represents the actual costs of providing professional services to licensees. The Department also endorses the proposed amendment to the rules that would require revision of the professional staff rate on a fiscal year basis, using the most current fiscal data available.

The Department also supports NRC s proposal to remove ceilings on the 1

collection of fees assessed at full cost. This support is qualified by IONS s 1 general objection to a rule which purports to require that those needing the greatest expenditure of NRC resources should pay the greatest fee (p. 24079),

but fails to require those needing lesser expenditures of NRC 1 s resources to pay a proportionate fee for those services. IONS believes the rule would be better if NRC would remove flat fees for the license categories contained in Table 170.31.

IONS also endorses NRC 1 s proposal to charge for all inspections, whether routine or nonroutine, for two reasons. First, it is appropriate that the licensees pay for the cost of every inspection of their facilities, not just the minimum number of inspections provided for by NRC s inspection schedule.

1

U.S. Nuclear Regulatory Commission August 11, 1988 Page 3 Second, if NRC charges licensees for all inspections, the inspection fee will act as incentive to encourage licensees to conduct their operations in such a manner as not to require more than the minimum number of inspections required by NRC's rule. Every additional inspection will act as sort of a civil penalty for having a less than adequate operation.

The Illinois Department of Nuclear Safety appreciates the opportunity to comment on this proposal. If you have any questions, or would like further clarification of the IONS concerns, do not hesitate to contact me.

Si cerel~ ~

Ter R. Lash Director cc: Mr. Lee Hiller Assistant Controller U.S. Nuclear Regulatory Commission Washington, D.C. 20555

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µE E-R: (202) 3 7Hl9 !50 August 12, 1988 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1121 Washington, o.c. 20555 Attention: Docketing and Service Branch Re: 10 CFR Parts 170 and 171, Annua l Fee for Nuclear Power Reactor Operating Licenses or Applications and Major Materials Licenses and Conforming Amendment; Proposed Rule

Dear Mr. Chilk:

Please note that the letter submitted to the NRC on August 1, 1988, which advised the Commission of additional licensees supporting comments filed by Bishop, Cook, Purcell

& Reynolds with respect to the above-captioned proposed rule, incorrectly listed Alabama Power Company as Alabama Power Corporation.

c;:ec:Jtubmit ed, Joseph B. Knotts, Jr.

Scott M. DuBoff Eric W. Bloom BISHOP, COOK, PURCELL

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DOCJCET NUMBER t-ittOPOSED RULE I Carl E. Cassidy, M.D., F.A.C.P. ( 5 1) 2 Boylston Plaza P.O . Box 68 Prudential Center Station Boston, MA 02199 (617) 536-9100

• aa AUG 11 P2 :40 Practice Limited Clinical Professor of Medicine OfF I* t ' ::'f t Tufts University School of Medicine OCK{!" ;N"-i~ ~esf!'o'y' ~{.Thyroid 8H . NC August 3, 1988 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Sirs,

I should like to comment on the proposed revision to 10CFR170, AND 170.32, Schedule of Fees for health and safety, and safeguards inspections for material licenses.

The proposed change creates the potential for considerable charges to licensees because of the possibility of an increased number of routine inspections coupled with the newly proposed charges.

Furthermore increased frequency of routine inspections and their charges would increase the rey_enues to the Commision, and one could consider that a conflict of . .

int~est.

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The current regulations address ,*better this issue with a per inspection charge for non-routine in~ections, but a fixed frequency charge for routine inspections The0 licensee must have a predictable inspection expense. ....;)

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• I urge you to retain the current provision.

Sincerely yours, CEC/ts

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~88 AUG -9 A8 :33 NUCLEAR REGULATORY COMMISSION T

10 CFR PART 171 Revision of Fee Schedule AGENCY: Nuc1ear Regulatory Co111T1ission ACTION: Interim Ru1e.

SUMMARY

The NRC is amending its regu1ations, on an interim basis, to revise the annual charges for licensed power reactors for Fiscal Year 1988 (FY88).

The interim rule raises the ceiling on co1lection of annual fees to an amount that will approximate, but not be less than 45 percent of the Co111T1ission s 1 budget. The increase of 12 percent will be apportioned among the licensed power reactors in the same manner as under the current fee schedule regulations. This action is necessary to provide for the timely collection of fees as required by recently enacted legislation.

EFFECT! VE DATE:

• Septembe~ 2,

• 1~§.~.*

FOR FURTHER INFORMATION CONTACT: Lee Hiller, Assistant Controller, U.S.

Nuclear Regulatory Co111T1ission, Washington, DC 20555, telephone (301) 492-7351.

0

- L -

SUPPLEMENTARY INFORMATION:

On June 27, 1988, the NRC published in the Federal Register (53 FR 24077) d proposed rule that would amend its regulations in 10 CFR Parts 170 and 171.

This revision is necessary to both upddte the current fees and to implement recently enacted legislation. The proposed amendments would: change the hourly rate under Part 170; remove fee ceilings on certain collections under Part 170; charge for each routine and nonroutine inspection; raise the dnnual fee under Pdrt 171 when necessary, based on the principle that those licensees requiring the greatest expenditure of resources should pay the greatest fee; include collections from the Department of Energy Nuclear Waste Fund in agency collections; remove the application fee and defer recovery of costs for standardized reactor designs, and remove amendment application filing fees for reactors and reactor-related (topical) reports. Most of these proposals are intended to help the NRC meet its statutorily mandated requirement to recover not less than 45 percent of its budget for each of fiscal years 1988 and 1989 through fees and other collections authorized by law. The increase in collections from 33 percent of the NRC's budget to not less than 45 percent is mandated by section 5601 of the Omnibus Budget Reconciliation Act of 1987 (OBRA

- Pub. L. 100-203).

In its Federal Register notice on proposed amendments to 10 CFR Parts 170 and 171, the Commission requested comments on a second option for recovery of not less than 45 percent of its budget. Under that option, the Commission would not amend 10 CFR Parts 170 and 171 other than to rdise the annual fee

under 10 CFR Part 171 so that when added to fees collected under 10 CFR Part 170, the Commission would collect not less than 45 percent of its budget in FY88.

Several comments were received which addressed the option. They were divided about equally between those in favor and those opposed. Generally the power reactor community was opposed to the second option on the ground that it increased the annual fee for power reactors without any commensurate sharing of the mandated increase in collections to 45 percent by other licensees and applicants. On the other hand, materials licensees favored the second option for the reason that it did not increase their burden. Two power reactor licensees favored the second option, one of them as an interim measure. The bulk of the power reactor community, in opposing the second option, appeared to be viewing it as a long term option and not as a stopgap measure to meet the immediate statutory directive for collections for fiscal year 1988. In view of the balance of the comments, the Co11111ission will not pursue the second option for fiscal year 1989 and beyond, but will proceed with amendments to both 10 CFR Parts 170 and 171. The comments do not, however, present a persuasive argument f or not proceeding with the second option for fiscal year 1988 collections.

Co11111enters also addressed the issue of refunds for overpayment of annual fees under 10 CFR Part 171 . The only comments received were from the power reactor community and are based upon reading the language in Section 5601 of

OBRA dS imposing a 45 percent ceiling on the collections in a fiscal year. In the view of the Commission, reading the 45 percent as a ceiling is contrary to the plain language and clear meaning of the statute which requires that, "in no event shall such percentage be less than a total of 45 percent of such costs in each such fiscal year." Although the statute presents some problems of

- interpretation, this is not one of them. The 45 percent is clearly a floor, not a ceiling. Accordingly, the provision for refunds is removed in this interim rule. It is the intention of the Commission, however, that collections of fees for fiscal year 1988 should exceed 45 percent by only a trivial amount, if at all.

The NRC is under statutory mandate, which it cannot ignore, to collect approximately, but not less than 45 percent of its budget for FY88. Given the time necessary to review all comments, to publish a final rule, and to send out additional invoices so that collections will be received prior to the end of the fiscal year, the Commission is publishing the second option as an interim rule dpplicable to FY88, effective 30 days after publication. Because the Commission has received and considered public comments on the two aspects of 10 CFR Part 171 being changed by this interim final rule, there is no need to request further public comment. Accordingly, the rule is being published as a final rule without a separate and independent comment period.

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

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

Adoption of the second option for FY88 requires that §171.15 be dmended to reflect collections of not less than 45 percent instead of the current 33 percent ceiling on total fee collections. This interim rule will apply only to FY88 and will be superseded by a final rule after the Co1T1T1ission fully considers comments it received in response to its proposed revision of 10 CFR Parts 170 and 171 published in the Federal Register on June 27, 1988. The final rule will apply to fees for FY89.

In order to comply with OBRA, the Commission is required to collect $177 million in FY88. Based on current estimated collections under 10 CFR Part 170 of $41.3 million and anticipated total collections under 10 CFR Part 171 of

$99.5 million, the Commission must collect an additional $36.2 million in order to reach the collections objective. Accordingly, the FY88 annual fee adjustment is $350,000 for each licensed power reactor. The annual fees for those plants previously granted a partial exemption for FY88 pursuant to

§171.11 will be increased in a like manner using the percentage rate used for

the exemptions. Those p1ants totally exempted from the annual fee for FY88 are unaffected by this amendment.

The NRC's reading of the 45 percent legislative statute (Section 5601 of the Omnibus Budget Reconciliation Act of 1987 - Public Law 100-203) is that 45 percent does not represent a ceiling. Congress intended collections to be not less than 45 percent of the NRC's budgets for FY88 and FY89. Therefore, actual collections will dpproximate but be at least 45 percent of the Commission's budget. On this basis, the current refund provision of 10 CFR 171.21 is no longer necessary and is being removed.

Environmental Impact: Categorical Exclusion The NRC has determined that this interim rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(l). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

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

Rtgulatory Analysis Section 7601 of the Consolidated Omnibus Budget Reconciliation Act (COBRA) required the NRC, by rule, to establish an annual charge for regulatory services provided to its applicants and licensees, that when added to other amounts collected, equaled up to 33 percent of Corrmission costs in providing those services. Section 5601 of the Omnibus Budget Reconciliation Act of 1987 requires that the NRC, for the fiscal years 1988 and 1989, increase the moneys collected pursuant to section 7601 and other authority to not less than 45 percent of the ColllTlission's costs. In order to accomplish this statutory requirement, the NRC, as an interim measure, is amending 10 CFR 171.15(c) and (d) by revising the figure 33 percent to a target of 45 percent.

This interim rule will not have significant impacts on state and local governments and geographical regions; on health, safety, and the environment; or, create substantial costs to licensees, the NRC, or other Federal agencies.

The foregoing discussion constitutes the regulatory analysis for this interim rule.

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

the Comnission certifies that this rule does not have a significant economic

impact on a substantial number of small entities. This rule affects only the licensing and operation of nuclear power plants. The companies that own these plants do not fall within the scope of the definition of "small entities" set forth in the Regulatory Flexibility Act or the Smal~ Business Size Standards set out in regulations issued by the Smal l Business Administration at 13 CFR 121.

Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this interim rule and, therefore, that a backfit analysis is not required for this interim rule, because this amendment is mandated by 31 U.S.C. 9701 and section 7601, Consolidated Omnibus Budget Reconciliation Act of 1985 (Pub. L.99-272, 100 Stat. 146), as amended by section 5601, Omnibus Budget Reconciliation Act of 1987 (Pub. L. 100-203, 101 Stat. 1330).

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

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

PART 171 - ANNUAL FEE FOR POWER REACTOR OPERATING LICENSES

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

Authority: Sec. 7601, Pub. L.99-272, 100 Stat. 146, as amended by sec.

- 5601, Pub. L. 100-203, 101 Stat. 1330, sec. 301, Pub. L.92-314, 86 Stat. 222 (42 U.S.C. 2201(w)); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841).

§171.15 [Amended]

2. In §171.15, paragraph (e) is removed and paragraphs (c) and (d) are amended by revising the percentages specified as 11 33 11 and 11

.33, 11 respectively, to read 11 45 11 and ".45."

§171.21 [Removed]

3. Section 171.21 is removed.

r~

Dated at Rockville, Maryland this ~~Y of August 1988.

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m C53r~;z;1V ARKANSAS POWER & LIGHT COMPAN'gS AlJG -8 p4 :09 August 4, 1988 0CAN088804 U. S. Nuclear Regulatory Commission Document Control Desk Mail Station Pl-137 ARKANSAS POWER & LIGHT COMPANY Washington, D.C. 20555 ATTN: Mr. Samuel J. Chilk Secretary of the Commission

SUBJECT:

Arkansas Nuclear One - Units 1 & 2 Docket Nos. 50-313 and 50-368 License Nos. DPR-51 and NPF-6 Proposed Revision to 10CFR170 and 171 on License and Annual Fees

Dear Mr. Chil k:

Arkansas Power and Light Company (AP&L) has reviewed the proposed revision to 10CFR170 and 171 and has the following comments:

In the analysis of legislation on Section II, it is explained that in computing the 45% of costs to be collected, 11 assessments 11 will be included or credited. However, it is stated that monies received for cooperative research programs are not considered assessments and, therefore, should not be credited toward the utility's annual fee. We agree in principle with the logic described. However, if the NRC funded portion of a cooperative research program is allocated back to the industry, then the program is not cooperative in this regard.

Therefore, the NRC portion of cooperative programs should be taken from the remaining 55% of the funds appropriated by Congress.

The B&W Owners are currently considering joint funding of a cooperative research program with NRC. Any agreement so reached is meaningless if the NRC assesses their portion in entirety back to the Licensees. If the rule, as stated, is not altered to address this concern, the future of any cooperative program must be reconsidered in light of the obvious economic implications for the utility.

Also, under the Part 171 fee breakdown for B&W units, the 11 Continuing Experimental Capability" is listed. It is our understanding that this AUG 1 O 1988 I

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Samuel J. Chilk August 4, 1988 project was to represent a testing/research facility applicable to GE, CE, Westinghouse, and B&W reactors. Therefore, the costs should be divided according1y.

We thank you for the opportunity of commenting on this proposed rule change and hope you will take our comments into consideration .

~?µ Dan R. Howard Manager, Licensing DRH:MCS:de

r BOSTON EDISON Pil gri m Nu clea r Power Stat ion Rocky Hil l Road Plymouth , M assachu setts 02360

'88 AUG -3 P3 :22 Ralph G. Bird Senior Vice President - Nuclear Secretary, U. S. Nuclear Regulatory Commission Washington, DC 20555 ATTN: Docketing and Service Branch License DPR-35 Docket 50-293 COMMENTS ON PROPOSED REVISION TO 10CFR 170 AND 171 ON LICENSE AND ANNUAL FEES Boston Edison Company offers the following comments on the proposed rule to revise the fee schedule of 10CFR Parts 170 and 171 as published in the Federal Register dated June 27, 1988. As a licensee and owner, Boston Edison is affected by such an increase in fees. While we are concerned at the general trend underlying such fee increases, we have a related concern dealing with the ability to budget for such increased fees.

Specifically, the Federal Register Notice requested comments on a second option which would, for 1988 and 1989, not adopt any changes to Part 170 or 171 other than to raise the annual fee so that the amount of fee collected by the Commission under 10CFR 171 . 15 and fees already collected under 10CFR 170 as currently codified, would approximate, but not be less than 45 percent of the NRC budget. We recommend the adoption of option two since this method would eliminate the need to adopt other changes to Parts 170 and 171, which in turn will enable a more predictable means for licensees to adjust 1988 budget monies and to forecast 1989 budgets.

/!$lo~

R. G. Bird JDK/jcp/2294 cc: Mr. D. McDonald, Project Manager Office of Nuclear Reactor Regulation U. S. Nuclear Regulatory Commission Mail Station Pl-137 Washington, DC 20555 U. S. Nuclear Regulatory Commission Region I 475 Allendale Road King of Prussia, PA 19406 Senior NRC Resident Inspector Pilgrim Nuclear Power Station 11ckncw1eogeo 01 caia ........... 7 AUG 1 0 ,983

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• as AUG -3 AS :m,4) 373-4M1 Jnly 27, 1988 Mr. Samuel J. Chilk Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555 Attention: Docketing and Service Branch

Subject:

Proposed Rule: Revision of Fee Schedules, 53 Federal Register 24077 (June 27, 1988)

Dear Mr. Chilk:

Duke Power Company provides the following comments on the proposed rule entitled Revision of Fee Schedules (53 FR 24077).

I. Introduction The proposed rule would revise Part 171 of the Commission's regulations to impose user fees that vary by reactor type. Under the proposed fee schedule, the reactor-variable fee attributable to B&W reactor owners would be disproportionately higher than the fees attributable to all other types of reactors. In particular, the variable fee imposed on B&W plants ($342,000 per reactor) would be over 8007. greater than the variable fee imposed on Westinghouse plants ($42,000 per reactor). The imposition of the proposed fee for B&W reactor owners is unwarranted and lacks an adequate technical basis. Additionally, it is our position that specific cost items have not been justified and that including the Commission's portion of the costs of the MIST facility and other cooperative research programs in the B&W owners fee violates the Commission's agreement to co-fund the MIST facility and removes any incentive for a utility or group of utilities to enter into or continue with cooperative research programs.

II. Comments A. The Proposed Rule Is Based On Incorrect Assumptions About the Resource Burden Imposed By B&W Reactors The proposed rule appears to reflect a misconception that B&W plants as a group are problem plants deserving of the greatest expenditure of Staff funds and manpower when compared with other reactor types. This implication is directly contrary to a recent decision of the Director of Nuclear Reactor Regulation, which denied the Union of Concerned Scientists' Section 2.206 petition for suspension of B&W owners' operating licenses and construction permits. In that decision, the Director concluded that B&W owners are continuing to improve B&W reactor operations and that the Commission I s ongoing assessment of B&W reactors '

J has not identified new significant generic safety problems with those reactors. **

Director's Decision Under 10 CFR 2.206, 26 N.R.C. 330, 366 (1987). the

~irector' s decision makes clear that B&W reactors generally do not ~ 1 O 1988

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Mrr Samuel J. Chilk July 27, 1988 Page Two significantly greater problems or require significantly more NRC expenditures than other reactor types. Accordingly, the use fees for B&W reactors should be in line with those for other types of reactors.

B. The Proposed Fees Are Not Reasonably Related To The Regulatory Service Provided And Do Not Fairly Reflect The Cost To The Commission.

It is well established that an agency rule must be supported by an adequate factual or technical basis. In the proposed rule, the Program Support costs allocated to B&W reactors lack an adequate basis for the following reasons:

0 The various programs for which fees are assessed (see Table IV of the proposed rule) are not adequately defined. It is not clear that costs involved in the programs "Continuing Experimental Capability" and "Technical Integration Center", should be allocated to B&W reactors.

In the absence of adequate justification, these costs may not be assessed.

o The FTEs (professional Staff years) allocated to B&W reactors (3.8) are excessive when compared to the figure for other reactor types (3.6 for CE, Westinghosue and GE combined). The NRC has not provided an adequate technical basis for the FTE calculations. Accordingly, the FTE calculations should be redone and brought in line with the figure for other reactors.

Moreover, the proposed fee schedule improperly attributes a portion of the NRC's costs of the Multi-loop Integral System Test ("MIST") facility to B&W owners.

The B&W Owners Group and the NRC have agreed to co-fund the MIST Program, and it is inconsistent with that agreement for the Commission to pass back its share of MIST costs to B&W owners via license fees. Therefore, any NRC costs for MIST must be eliminated from the fees assessed to B&W owners. Additionally, the rule apparently includes NRC costs for other cooperative efforts such as Once-Through Steam Generator Research.

III. Conclusion The Commission should reduce the program costs and FTEs allocated to B&W reactors to bring them in line with those for other reactor types. The costs for the MIST program and other cooperative efforts should be stricken from the cost items allocated to B&W plants. In addition the rule should not include costs for research allocated to B&W plants that may have general applicability.

Very truly yours, Hal B. Tucker NAR/14/sbn xc: File: GS-801.03

DOCKET NUMBER

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WASHINGTON, D.C. 20005 -3502 (202) 371-5700 '88 ALE -2 A9 :14 WRITER' S DIRECT DIAL August 1, 1988 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1121 Washington, D.C. 20555 Attention: Docketing and Service Branch Re: 10 CFR Parts 170 and 171, Annual Fee for Nuclear Power Reactors Operating Licenses or Applications and Major Materials Licenses and Conforming Amendment; Proposed Rule

Dear Mr. Chilk:

This letter is to advise that the following licensees have joined in the comments on the subject proposed rule submitted by Bishop, Cook, Purcell and Reynolds on July 27, 1988:

Alabama Power Corporation South Carolina Electric & Gas Company.

itted, h B. Knotts, Jr.

t M. DuBoff Eric w. Bloom BISHOP, COOK, PURCELL

& REYNOLDS AIJG - 4 1988 Ackn01Wledged by card **** -u***,.a*-*

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DOCKET NUMBER PROPOSED RULE The Light l 53 ~ 'R. '1-'-1011) 00(,K[iEC:

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File No.: G03.11, G03.15 10CFR170 U. S. Nuclear Regulatory Commiss i on Attention: Document Control Desk Washington, DC 20555 South Texas Project Electric Generating Station Units 1 & 2 Docket Nos. STN 50-498, STN 50-499 Comments on Proposed Revision of Part 170 and Part 171 Fee Schedul es Houston Lighting & Power Company hereby submits comments in response to the proposed rule, entitled "Rev i sion of Fee Schedules," issued on June 27, 1988 and published at 53 Fed. Reg. 24077 (1988). The proposed ru l e would amend the fee schedules found in Parts 170 and 171 of the Commission's regulations. Our comments are directed to certain aspects of each part.

Part 170 Our principal object i on to the proposed rev1s1ons of Part 170 relates to the removal of the current ceilings on the collection of fees. As the Commission recognizes, these ceilings "were established by the Commission at the request of the regulated industry as a means of assigning predictability as to what the final costs of a regu l atory service wou l d be." 53 Fed. Reg. at 24679. We submit that the reasons for assigning predictability are as compelling today as they were when the Commission imposed the ce i lings.

Indeed, because of the proposed increase in the agency-wide professional staff-hour rate, considerations of p r edictability more than ever require the retention of cei l ings.

Part 171 We have several objections to the proposed revisions of Part 171 of the Commission's regulations. First, the proposal does not remove the most fundamental of the defects which we and others have identified concerning the Commission's present system for assessment and col l ect i on of annual fees under Part 171. The Commission continues to believe that there has been delegated to it authority to assess and collect annual fees for "gener i c" r egulatory services benefiting broad "classes" or "types" of power reactor licensees.

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Houston Lighting & Power Company ST-HL-AE-2747 File No.: G03.11, G03.15 Page 2 53 Fed. Reg. at 27078, 24080-82. It does not feel compelled to identify any special benefits rendered to individual licensees, as the Commission believes that such a matching of special benefits and fees is not required by Section 7601 of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"),

as amended by Section 5601 of the Omnibus Budget Reconciliation Act of 1987

("OBRA"). In the Commission's opinion, the requirement that fees match "individually identifiable services" is applicable only to Part 170 fees ass~ssed under the authority of Title V of the Independent Offices Appropriation Act of 1951. Id. at 24078.

We expressed our strong disagreement with the Commission's interpretation of its statutory authority to collect annual fees in comments filed on our behalf on July 16, 1986, when the Commission first proposed to add Part 171 to its regulations. When the Commission issued a final rule providing for the recovery of the "generic" costs of regulating classes of licensees, 51 Fed.

Reg. 33244 (1986), we sought judicial review. That effort resulted in the split decision in Florida Power & Light Co. v. United States, Nos. 86-1512, et al. (D.C. Cir. May 13, 1988), upon which the Commission now relies. However, we are seeking review of that decision in the Supreme Court. In the meantime, we continue to express our belief that amended Section 7601 of COBRA, when read in the context of the body of judicial decisions construing similar user fee statutes, compels the Commission to first identify specific services benefiting individual licensees before proceeding to assess annual fees intended to recoup the costs associated with these services. In brief, the proposed rule relies upon legal judgements which we questioned in our July 16, 1986 comments and have continued to question in the on-going litigation over the legality of the Commission's annual fee legislations. We therefore incorporate herein the views which we have expressed in the comments and in the litigation.

The Commission reads Section 5601 of OBRA as removing the 33 percent ceiling found in Section 7601 of COBRA and inserting in its place a direction that the agency collect at least 45 percent of its budget during fiscal years 1988 and 1989. 53 Fed. Reg. at 24078. The commission reasons that as its fee collections now can exceed the percentage target found in the governing statute, there no longer is any need to provide refunds if this target is exceeded. Id. at 24078, 24084. We submit the Commission is in error in reading the 45 percent referred to in OBRA as a floor rather than a ceiling.

In adopting its view, the Commission failed to consider the single best explanation of the unclear language of OBRA, namely, the statement of Senator Simpson on the floor of Congress clarifying the intention of Congress in enacting the provision. 133 Cong. Rec. Sl8685 (daily ed. Dec. 21, 1987).

NL.88.203.02

Houston Lighting & Power Compan y ST-HL-AE-2747 File No.: G03.ll, G03.15 Page 3 Senator Simpson explained that the "contorted" and "convoluted" language of Section 5601 is attributable to the arcane Congressional Budget Office "scoring" process and the "crediting" of user fees to certain Congressional committees. Id at 18685-87. Stripped of unnecessary complexities, Section 5601 of OBRA "authorizes the NRC to collect increased user fees in an amount

~ to 45 percent of the agency's budget for 2 fiscal years--fiscal years 1988 and 1989." Id at 18685 (emphasis added).

The legislative history of Section 5601 therefore clearly suggests that the Commission is mistaken in treating the 45 percent referred to in the legislation as a floor rather than as a ceiling. Regardless of whether the Commission is correct or incorrect in its belief that it legally can recover the "generic" costs of regulating classes of licensees, it must take action to ensure that the aggregate of its fee collections does not exceed 45 percent of the NRC's 1988 and 1989 fiscal year budgets. The obvious method of ensuring thi~ result is to retain the refund mechanism found in Part 171.21 of the Commission's annual fee regulations .

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J. H. Goldberg Group Vice President Nuclear JHG/PLW/nl NL.88.203.02

Houston Lighting & Power Company ST-HL-AE-2747 File No.: G03.ll, G03.15 Page 4 cc:

Regional Administrator, Region IV Rufus S. Scott Nuclear Regulatory Commission Associated General Counsel 611 Ryan Plaza Drive, Suite 1000 Houston Lighting & Power Company Arlington, TX 76011 P. O. Box 1700 Houston, TX 77001 George Dick U. S. Nuclear Regulatory Commission INPO Washington, DC 20555 Records Center 1100 Circle 75 Parkway Jack E. Bess Atlanta, Ga. 30339-3064 Resident Inspector/Operations c/o U. S. Nuclear Regulatory Commission Dr. Joseph M. Hendrie P. 0. Box 910 50 Bellport Lane Bay City, TX 77414 Bellport, NY 11713 Don L. Garrison Resident Inspector/Construction c/o U. S. Nuclear Regulatory Commission P. 0. Box 910 Bay City, TX 77414 J. R. Newman, Esquire Newman & Holtzinger, P.C.

1615 L Street, N.W.

Washington, DC 20036 R. L. Range/R. P. Verret Central Power & Light Company P. 0. Box 2121 Corpus Christi, TX 78403 R. John Miner (2 copies)

Chief Operating Officer City of Austin Electric Utility 721 Barton Springs Road Aus~in, TX 78704 R. J. Costello/M. T. Hardt City Public Service Board P. 0. Box 1771 San Antonio, TX 78296 Revised 06/16/88 NL.DIST

July 26, 1988 U.S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTENTION: Docketing and Service Branch Gentlemen:

I am writing to you in order to comment on the proposed revision to 10CFR170, especially 170.32, Schedule of Fees for Health and Safety, and Safeguards Inspections for Material Licenses. My main concern for these proposed changes is that these changes might cause significant increase in our expenses due to a possible increase in routine inspection coupled with newly proposed charge per routine inspection. Since I would have no control over the frequency of routine inspections, I would have no fiscal control over my inspection fees budget. This presents a problem for controlling hospital expenses, which are being looked at closely by all Massachusetts hospitals.

In my opinion, the current regulations better address this issue with a per inspection charge for non-routine inspections, but a set frequency for routine inspections with a fixed charge. This will allow me to predict my inspection expenses unless my program becomes problematic to the point where non-routine inspections are warranted. I urge you to retain the current provision.

Sincerely, MARLBOROUGH HOSPITAL AUG - ~ ,ssa

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• as AUG -1 P3 :05 Florida Power CORPORATION July 27, 1988 Mr. Samuel J. Chilk Secretary U. s. Nuclear Regulatory Commission Washington, D. C. 20555 e ATTN: Docketing and Service Branch

Subject:

Proposed Rule: Revision of Fee Schedules, 53 Fed. Reg, 24077 (June 27. 1988}

Dear Mr. Chilk:

These comments supplement those provided by the Babcock and Wilcox Owners Group and Bishop, Cook, Purcell and Reynolds on behalf of a group of utilities, both of which we endorse.

Florida Power Corporation (FPC) would add or expand upon two comments, one generic and one site specific. FPC strongly believes that no rational basis for identifying a licensee as benefitting from agency research can be developed until the agency acts upon that research.

The existence of information not relied upon for agency action is of no benefit whatsoever. Secondly, the grouping of plants east of the Rockies (171, II) is meant to capture seismicity related costs. The licensees of peninsular Florida have long held that we should have been excluded from this issue. We can now conclude based on agency and industry research that our position was valid. Therefore, this category should be modified to read east of the Rockies except peninsular Florida.

f\UG - 4 ,ssS Acknow1eaged ~ card ........... y.,._.....,.,.

K. R. Wilson, Manager Nuclear Licensing GENERAL OFFICE: 3201 Thirty-fourth Street South

• P.O. Box 14042

• St. Petersburg, Florida 33733 * (813) 866-5151 A Florida Progress Company

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Southern California Edison Company P . 0 . BOX 800 2244 WALNUT GROVE AVENUE

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M . 0 . MEDFORD OCK[i ti G * ' ., fil;f .PHONE MANAGER OF NUCLEAR ENGINEERING "ANCI-* 1e 1e l ':\c)2. l749 ANO LICENSING July 28, 1988 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1121 Washington, D.C. 20555 Attention: Docketing and Service Branch Gentlemen:

Subject:

10 CFR Parts 170 and 171, Annual Fee Comments on Proposed Rule The purpose of this letter is to endorse the comments on the subject proposed rule submitted by the law firm of Bishop, Cook, Purcell and Reynolds. It is respectfully requested that the Commission withdraw the proposed rule. It is further requested that any rule adopted (1) exclude costs that serve independent public interests, (2) determine Part 171 fees based upon individual licensee and applicant costs to the Commission, (3) adequately explain the cost basis underlying the proposed amendments and (4) provide for refunds for licensees if the statutory ceiling of 45 percent is exceeded for any reason.

Southern California Edison Company CSCE) appreciates the opportunity to provide comments on the proposed rule.

Very truly yours,

/frlo~

cc: J. B. Martin, Regional Administrator, NRC Region V F. R. Huey, NRC Senior Resident Inspector, San Onofre Units l, 2 and 3 AUG - 4 1988

P,S. NUClEAR IU:CIJlATOllY COIM\l~ION OOCKtllNG & SERVICE SECTION OFFICE OF THE 5£CII.ET A.l'f Of TW COM,*AIS:ilOH

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• 617-933-6700 '* )*lfl~X Ext. 4222 (5!J Ft-, ../taTJ).88 AUG -1 Pl2 :12 7-23-88 U.S. Nuclear Regulatory Commission Docketing and Service Branch Washington, DC 20555 Gentlemen:

I am writing to comment on the proposed revision to 10 CFR 170 with specific reference to 170.32 for the material licenses schedule of fees.

With severe budgetary restraints being placed on hospitals in Massachusetts at this time, I find that the Commissions proposed method for establishing a fee for "routine inspections" presents a fiscal insecurity to our hospital in regards to be able to budget appropriately, The "routine inspections" in the past, have always been spaced adequately to allow for budgetary purpo~es. With an increase in the number of "routine inspections" pending, and keeping in mind that they are performed at the discretion of the NRC, the potential for having one performed every other month exists in my mind. This also leaves open yet another fee for non-routine inspections to be performed at the discretion of the NRC.

I agree that the inspections are a needed and vital part of the licensee, and do not disagree with a possible increase in routine inspections, but I feel that the proposed regulations leaves the licensee wide open for fiscal imbalance. The current regulations, having a fixed frequency and charge and an additional fixed charge for non routine inspections seems a bit more reasonable for our institutions financial planning.

Thank you for your considering my comrnents at this time.

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Jeanne M. Elia, R.T.R Adm. Director Radiology ~Uvices p..DG - 4

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• aa JUL 29 P12 :09 A Centerior Energy Company DONALD C. SHELTON Vice President Nuclear (419 ] 249 2300 July 27, 1988 Secretary United States Nuclear Regulatory Commission Washington, D. C. 20555 Attention: Docketing and Service Branch

Subject:

Comments on the Proposed Amendments to 10 CFR Parts 170 and 171 (53 FR 24077, dated June 27, 1988)

Gentlemen:

On June 27, 1988, the NRC published in the Federal Register a proposed rule to revise its fee schedules in 10 CFR Parts 170, Fees for Facilities and Materials Licenses and Other Regulatory Services, and 171, Annual Fee for Power Reactor Operating Licenses. Toledo Edison submits the following comments on the proposed rule:

1. Toledo Edison maintains that the annual fee is unconstitutional in that it amounts to an agency-imposed "tax" and that it charges licensees for the costs of independent public benefits.

Separate from this objection, Toledo Edison submits the following additional comments:

2. As required by the Omnibus Budget Reconciliation Act of 1987, the NRC is required to collect an increased percentage of its costs for Fiscal Years 1988 and 1989. The total amount to be collected includes moneys from: Part 170 collections; High-Level-Waste Fund collections; and Part 171 collections. Toledo Edison recommends that the NRC also include moneys collected from fines, penalties, and interest.

3. The proposed Part 171 attempts for the first time to relate the annual fee amount to the cost of providing regulatory services. Because many of the NRC's generic research activities have obvious benefits to licensees other than power reactors, Toledo Edison recommends that the annual fee be appropriately charged to all NRC licensees.

4. Although the proposed revisions to Part 171 attempt to more closely link the burden of the annual fee to those licensees requiring the greatest expenditure of NRC resources, previous agreements with the n1.M1 1eaged oy card AUG - i 1988 _ *

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Page 2 NRC appear to be overlooked. For example, the B&V Owners Group, EPRI, and the NRC previously entered into a contract on the Multi - Loop Integral System Test (MIST) facility which established a cost-sharing ratio. From the information listed in Table IV, Part 171 Fees by Category - Detail, it appears that the previous agreement has been superseded and the cost has shifted to the B&V Owners. Toledo Edison strongly recommends that previous cost-sharing agreements with the NRC be maintained and not included with the proposed amendment to Part 171.

5. Toledo Edison strongly agrees with the removal of license amendment application fees as these are an unnecessary burden on both the licensee and NRC Staff.

6. Toledo Edison disagrees with the Commission's second option to simply raise the annual fee so that the Commission can collect 45% of its budget without adopting any other changes to Parts 170 or 171.

Toledo Edison also shares in the comments submitted by Shaw, Pitman and Trowbridge.

Toledo Edison appreciates the opportunity to provide comments on the proposed amendments to 10 CFR Parts 170 and 171.

Very truly yours,

~~ '

Indiana Michigan Power Company PO. Box16631 DOCKET NUMBER PRlj;*JSED RULE ~ J 7 tJ

/1 J Columbus, OH 43216 (5.} F YL :J-'-1071)

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• noc°Kriiw; *J. <c'ii**~*, u Secretary of the U.S. Nuclear Regul i ~~~ ~Commi ssion Washington, D.C. 20555 Attention: Docketing and Service Branch

Dear Sir or Madam:

This letter is in response to the proposed rule concerning revision of the fee schedules in 10 CFR Parts 170 and 171, published in the Federal Register (53 FR 24077). We concur with the comments submitted by Jay E. Silberg of the law firm of Shaw, Pittman, Potts & Trowbridge, except as set forth below.

Indian Michigan Power Company, owner and operator of the Donald C. Cook Nuclear Plant, objects in general to the annual fee.

However, if these fees are to be raised, we propose that the "second" option, described on page 24079 of the reference Federal Register notice, be adopted. That option states,

. . . the commission at this time would not adopt any changes to Part 170 or Part 171 other than to raise the annual fee so that the amount of fee collected by the Commission under 10 CFR 171.15, when added to fees that would be collected under 10 CFR 170 as currently codified, would approximate, but not be less than 45 percent of the NRG budget.

The proposed legislation (first option) calls for collecting the annual fee increase in part by removing the fee ceilings for reactor and major fuel cycle permits, licenses, amendments, and inspections, asserting that this would allow major users of NRG services to pay a larger share of the bill. However, an individual utility has only limited control over the allocation of NRG resources, and thus, a disproportionate burden could be placed on one utility and its ratepayers. The amount of NRG attention receb ed by a plant is largely outside of the plant's control, thus maKing the form of billing described in the proposed rule randomly unfair. The opt ion described above is, in our opinion, a more acceptable metho d of collecting the annual fee.

Vice President

0.S. NUCLEAR R[GUlATORY CMMlSSIOH DOCl<ETING & SERVICE SECTION OFFICE Or THE SECRETARY 0~ Tl ~ COMMISSION

ArbllSalPower& UghtCompany Duke Power Company Florida P o w e r ~

GPU Nudea, Co,porallon Working Together to Economically Provide Reliable and Safe Electrica tP~~f ,. ::* r 1

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• 1700 Rockville Pike

• Rockville, MD 20852 * (301J 230-2100 Ju l y 22, 1988 Mr. Samuel J. Chilk Secretary U. S. Nuclear Regulatory Commission Washington, D. C. 20555 ATTN: Docketing and Service Branch Subj: Proposed Rule: Revis i on of Fee Schedules, 53 Fed. Reg. 24077 (June 27 2 1988)

Dear Mr. Chilk:

These comments on the Nuclear Regulatory Commission's proposed rule entitled 11 Revision of Fee Schedules" are submitted on behalf of the Babcock & Wilcox (B&W) Owners Group. 1 I. Introduction The proposed rule would revise Part 171 of the Commission's regulations to impose user fees that vary by reactor type. Under the proposed fee schedule, the reactor-variable fee attributable to B&W reactor owners would be disproportionately higher than the fees 1 For purposes of these comments, the B&W Owners Group comprises Arkansas Power & Light Company (Arkansas Nuclear One Unit 1), Duke Power Company (Oconee Units 1, 2 and 3), Florida Power Corporation (Crystal River Unit 3), GPU Nuclear Corporation (Three Mile Island Unit 1), Sacramento Municipal Utility District (Rancho Seco), The Toledo Edison Company (Davis-Besse) and Tennessee Valley Authority (Bellefonte Units 1 and 2).

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J. S. NUCLEAR REGULATORY COMMISSIOII 0OCKHING & SERVICE SECTION OFFICE Of lHE SECRET ARY.

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attributable to all other types of reactors. In particular, the variable fee imposed on B&W plants ($342,000 per reactor) would be over 800% greater than the variable fee imposed on Westinghouse plants

($42,000 per reactor). While we support the Commission's effort to tailor fees to the service provided to specific licensees, it is our position that imposition of the proposed fee for B&W reactor owners is unwarranted and lacks an adequate technical basis. Additionally, it is our position that specific cost items have not been justified and that including the Commission's portion of the costs of the MIST facility in the B&W owners fee violates the Commission's agreement to co-fund that facility.

II. Comments A. The Proposed Rule Is Based on Incorrect Assumptions About the Resource Burden Imposed by B&W Reactors.

The proposed rule appears to reflect a misconception that B&W plants as a group are problem plants deserving of the greatest expenditure of Staff funds and manpower when compared with other reactor types. This implication is directly contrary to a recent decision of the Director of Nuclear Reactor Regulation, which denied the Union of Concern Scientists' Section 2.206 petition for suspension of B&W owners' operating licenses and construction permits. In that decision, the Director concluded that B&W owners are continuing to improve B&W reactor operations and that the Commission's ongoing assessment of B&W reactors has not identified new significant generic safety problems with those reactors. Director's Decision Under 10 CFR 2.206, 26 N.R.C.

330, 366 (1987). The Director's decision makes clear that B&W reactors generally do not pose significantly greater problems or require significantly more NRC expenditures than other reactor types.

Accordingly, the use fees for B&W reactors should be in line with those for other types of reactors.

B. The Proposed Fees Are Not Reasonably Related to the Regulatory Service Provided and Do Not Fairly Reflect the Cost to the Commission.

It is well established that an agency rule must be supported by an adequate factual or technical basis. See Motor Vehicle Manufacturers Association v. State Farm Mutual Automobile Insurance Co., 463 U.S. 29, 43 (1983); Connecticut Light & Power Co. v. NRC, 673 F.2d 525 (D.C.

Cir.), cert. denied, 459 U.S. 835 (1982). In the proposed rule, the Program Support costs allocated to B&W reactors lack an adequate basis for the following reasons:

The various programs for which fees are assessed (see I

• Table IV of the proposed rule) are not adequately defined. It is not clear what is involved in the

programs 11 Continuing Experimental Capability, 11 11 Once-Through Steam Generator, 11 and 11 Technical Integration Center, 11 nor whether these costs should be allocated to B&W reactors. Some of these costs- -

specifically the Continuing Experimental Capability and the Technical Integration Center -- do not appear to be unique to B&W reactors. In the absence of adequate justification, these costs may not be assessed.

The FTEs (professional Staff years) allocated to B&W reactors (3.8) are excessive when compared to the figure for other reactor types (3.6 for CE, Westinghouse and GE combined). The NRC has not provided an adequate technical basis for the FTE calculations. Accordingly, the FTE calculations should be redone and brought in line with the figure for other reactors.

Moreover, the proposed fee schedule improperly attributes a portion of the NRC 1 s costs of the Multi-loop Integral System Test ( 11 MIST 11 )

facility to B&W owners. The B&W Owners Group and the NRC have agreed to co-fund the MIST Program, and it is inconsistent with that agreement for the Commission to pass back its share of MIST costs to B&W owners via license fees. Therefore, any NRC costs for MIST must be eliminated from the fees assessed to B&W owners.

III. Conclusion The Commission should reduce the program costs and FTEs allocated to B&W reactors to bring them in line with those for other reactor types.

The costs for the MIST program and perhaps other programs, if sufficient information becomes available to permit comment on those programs -- should be stricken from the cost items allocated to B&W plants.

J:;;;;;.;1*d.'

Walter S. Wilgus ~

Cha i rman, Executiva . ,mi ttee Babcock & Wilcox Owner's Group WSW/lmh

DOCKETED (408) 925-5040 MFN#60-88 July 28, 1988 DOCKETING&

SI:RVIC-::F. JIR a

,I:Cr-:,nc*w Secretary, U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

Subject:

Cornm9nts to Revision of Fees Schedule

Reference:

June 27, 1988 Federal Register Notice (Vol. 53, No. 123)

Attachment:

March 24, 1988 letter to the Honorable Lando W. Zech, Jr. from Dr. Bertram Wol fe, Vice President and General Manager, GE Nuclear Energy (MFN#28-88)

With regard to the subject proposed regulation amendment we have comments in two major areas. These are the treatment of fees on reviewing Standard Reference Designs and the need for a cap on all fees.

Standard Reference Design Reviews We are encouraged by the proposed ten year deferra 1 of fees for design cert i fi cat i ans on standard designs. However, we are concerned that the uncapped fee approach to cost recovery exposes a standard design applicant to an unlimited liability. This will have a detrimental impact on standard-ization. We strongly recommend that the current limit of $1.4M be main-tained for review and certification of standard plants. Further, to encourage the initial efforts of standardization and until a workable review and certification process for standard plants has been demonstrated, we recommend that ail standard plant review and certification fees be waived. The attached letter from Dr. Wolfe to Chairman Zech specifically addresses these matters relative to the ABWR Design Certification Program.

Special Projects The $20,000 cap of the current regulation for review fees for special project submittals should be retained. The removal of the cap on the fees for licensing topical reports may have the unwanted effect of increasing the expenditure of staff resources. It is recognized that some reports require an extended review by the staff and that the applicant has no AUG - 4 1988

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R.C. Mitchell to Secretary, NRC Page 2 July 28, 1988 control and limited ability to direct this review. Removing the cap will discourage the submittal of generic topical reports. This would necessi-tate individual utility submittals which requires multiple staff reviews for each new item. Further, removing the cap would discourage timely updates of licensing models and reports. Applicants may not be as quick to submit state of the art changes when a protracted review might ensue. This defeats the overall objective of encouraging new and improved predictive models and products.

We encourage you to implement the above recommendations. If you have any questions or comments on these, pl ease feel free to ca 11 me at ( 408) 925-2755.

Sincerely yours,

~C-~

Robert C. Mitchell Manager, Nuclear Products Licensing cc: R. C. Berglund L. S. Rubenstein, NRC D. R. Wilkins B. Wolfe

• I

&rtram Woffe Vice President and General Manager General Electric Company 175 Curtner Avenue. San Jose. CA 95125 GE Nuclear Energy 408 925-6900 MFN 028-88 March 24, 1988 The Honorable Lando Y. Zech, Jr.

Chaiman U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Subject:

Design Certification Fee For ABWR

Reference:

Letter from C. James Holloway, Jr. (NRC) to R. Artigas (GE), dated March 14, 1988

Dear Chairman Zech:

The purpose of this letter is to request your support in resolution of the matter of the fee to be incurred by the General Electric Company in the certification of its Advanced Boiling Yater Reactor (ABWR). Ye have b~en encouraged by the Commission's strong support of this program at each of the three meetings we have had with the Commission since the program began in 1986, and by the NRC staff's support of the licensing effort to date.

As you know, GE recently applied for certification of the ABWR as a standard plant. This application was made as part of a U.S. Department of Energy program to develop and demonstrate a predictable licensing process for standard plants in the U.S., and thereby eliminate one of the current obstacles to revival of the U.S. nuclear option. GE is contributing its ABWR, recently adopted as the next generation BWR for Japan, as a demonstra-tion vehicle for this important national program.

Our application was submitted with the understanding that the total fee for final design approval and certification of the ABWR would be limited to the $1,427,100 currently specified in 10CFR Part 170, and that this fee would be deferred for up to 10 years in accordance with the Commission's March, 1987 decision regarding deferral of fees for standard plants. Ye believed (and still believe) that it is appropriate and in keeping with the national interest for the Commission to waive all fees for participants involved in the establishment of the certification process - a process that is largely undefined and fraught with uncertainty. Nevertheless, GE reluctantly accepted the combination of a capped and deferred fee in spite of the fact that there seems to be little prospect of a nuclear market in the U.S. for the foreseeable future.

Contrary to our understanding, however, the referenced letter indicates that the NRC staff intends to recover the full cost of certification without any cap, and that accumulated NRC costs would be immediately charged to GE

The Honorable Lando Y. Zech, Jr.

March 24, 1988 Page 2 if the application is *denied, withdrawn, suspended, or action on the application is postponed." Ye believe that this action is contrary to the Commission's policy of encouraging standardization and the Commission's March, 1987 decision regarding deferral of fees for standard plants. We also believe it is unfair to those of us within the industry who have under-taken this pioneering standardization effort. Our reasons are several:

1. A key objective of the DOE and NRC standardization effort is to remove uncertainty and demonstrate predictably in the licensing process.

We do not believe it was the intent of the Commission's March, 1987 decision on . fee deferral for standard plants to add yet another uncertainty and disincentive in the form of an unlimited fee.

2. The U.S. does not currently have a defined and proven review and cer-tification process for standard plants -- a fact which is amply demon-strated by our mutual inability to achieve a certification of our B\JR./6 GESSAR design in spite of sustained and dedicated effort by the GE and NRG staff. Clearly certification of the AB\JR will require a consider-able effort by the NRG staff to define and demonstrate a workable standard plant review and certification process, and will inevitably cause additional effort by GE. We do not believe that it is fair to expect GE to pay for, in addition to its own effort, the NRG staff effort to develop a "first-of-a-kind" standard plant review and certification process. The NRG should fund its own costs in this area.

A fee cap at the currently established level would achieve this.

3. DOE, GE and NRG have all entered this "first-of-a-kind" program with recognition that there are many uncertainties and risks -- that success will require the best efforts of all of our organizations -- and that even so there are factors beyond the control of any of us that could prevent issuance of an AB\JR certification. With this going-in recognition, we feel it is unfair fer the NRC staff to adopt a position that, in the event of failure, the costs are to GE's account regardless of the circumstances. Ye believe GE should have the future option to apply for a waiver of fees if the program fails to achieve its objectives for reasons beyond GE's control.

4. Finally, the NRC staff approach to certification cost recovery requires GE to, in effect, assume an unlimited liability. Ye of course fre-quently purchase services on a "time and materials" basis, but normally only after reaching agreement with the supplier on a work plan, schedule, cost estimate, not-to-exceed costs, and receiving assurance through audit or other means that costs invoiced to GE are appropriate.

Ye would not suggest that these controls are appropriate to the

The Honorable Lando Y. Zech, Jr.

March 24, 1988 Page 3 regulator/applicant relationship which exists on the present program --

but at the same time we do not feel it is appropriate for the NRC to expect GE to assume an unlimited liability. A capped fee would avoid these difficulties.

Our concerns would be resolved if the Commission would confirm our understanding that the ABWR *review and certification fee is both capped at the present level and deferred, and indicate a willingness to revisit the fee issue if the program fails to achieve its objeccives for reasons beyond GE's control.

- Ye have been greatly encouraged by the Commission's strong support for standardization. GE is committed to standardization, and we believe our actions over many years on GESSAR and more recently on the ABWR demonstrate this commitment. Ye are hopeful that your response to this fee issue will provide a basis for continuing this important national program and achieve-ment of practical standardization in the U.S. nuclear program.

Sincerely yours, Vice President & General Manager GE Nuclear Energy cc: F. M. Bernthal, Commissioner K. M. Carr, Commissioner K. Rogers, Commissioner T. M. Roberts, Commissioner V. Stello, Jr., EDO D. F. Bunch, DOE D. J. McGoff, DOE R. Artigas, GE D.R. Wilkins, GE C. J. Holloway, Jr., NRC L. Rubenstein, NRC D. F. Giessing, DOE F. A. Ross, DOE

DOCKET NUMBER PROPOSED RULE Pft 11 tJ 111 fl .<

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(~) 1671 Worcester Road, Framingham, Massachusetts 017CS8 JJL 28 P1 :34 July 26, 1988 Secretary of the Commission United States Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Branch

Subject:

Comments Concerning Proposed Revisions of the Fee Schedules in 10 CFR Parts 170 and 171.

Dear Sir:

Yankee Atomic Electric Company (YAEC) appreciates the opportunity to comment on the proposed revisions of the fee schedules in 10CFR Parts 170 and 171.

Yankee Atomic Electric Company owns and operates a nuclear power plant in Rowe, Massachusetts. Our Nuclear Services Division also provides engineer-ing and licensing services to other nuclear power plants in the Northeast, including Vermont Yankee, Maine Yankee and Seabrook.

The law firm of Shaw, Pittman, Potts and Trowbridge is filing detailed comments concerning the proposed rule on behalf of the NRC Users Fee Group.

We are an active member of this group and fully endorse these comments.

We also wish to offer the following comments.

A general premise of section 7601 of the Consolidated Omnibus Budget Recon-ciliation Act (COBRA) is that if the NRC is to collect annual charges from its licensees, such charges should be reasonably related to the regulatory service provided by the Commission and fairly reflect the cost to the Commission of providing this service. We question whether the proposed fee schedules of Parts 170 and 171 accomplish this goal.

To cite several examples of our concern, proposed Section 170.32 would retain fixed fees for most, if not all of the services provided to material licensees. We see no basis for the assertion that ceilings on such fees will not be removed "since the ratio of NRC costs to fees collected is approximately equivalent to the percentage of the budget to be collected into the General Treasury." We also question the proposed Section 170.12 which would defer the assessment of costs for the review and certification of standard reference designs until such time as the design is referenced or for a period of 5 (or potentially 10) years. If the developer of an approved standard reference design is unsuccessful in marketing his concept and subsequently defaults on his payments for the regulatory review, it t.Q AUG

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is not clear as to how the cost of these services would be absorbed. Likewise, if parties are allowed to pay for services rendered in 1988 with 1993 (or 1998) dollars, how is the true value of these services recovered? If the Commission's policy is to be consistent with section 7601 of COBRA, the proposed change to Section 170.12 should assure that the applicants for certification of standard reference designs bear the full cost of the regul-atory review and none of these costs, either direct or indirect, are passed on to the present power reactor licensees. We feel that this is most likely to be accomplished if the cost of services is assessed in the same fiscal period that the services are rendered.

With respect to the proposed Part 171, we seriously question whether current power reactor licensees are the sole "beneficiaries" of the programs which are identified as the bases for the Part 171 fee schedule. To cite just one example, is it reasonable to assume that material licensees derive no benefit from the considerable resources expended in research related to radiation protection and health effects?

The Commission requested comment on an optional course of action which would not change Parts 170 or 171 other than to raise the annual fee levied under 10 CFR 171.15 to a level that would assure that the total Part 170 and Part 171 fees are not less than 45 percent of the NRC budget. We oppose this course of action. However, we request that the Commissioners reexamine the NRC's current budgetary processes in order to provide greater assurance that there will be a reasonable correlation between the regulatory services rendered and the cost to the individual licensee.

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Donald w. Edwards Director, Industry Affairs JDS/amd

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WASHINGTON, D.C. 20005-3502 (202) 371-5700 "88 28 Al :Ql WRITER' S DIRECT DIAL TELEX: 440574 INTLAW UI TELECOPIER: (202) 371 -5950 July 27, 1988 Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission 1717 H Street, N.W., Room 1121 Washington, D.C. 20555 Attention: Docketing and Service Branch Re: 10 CFR Parts 170 and 171, Annual Fee for Nuclear Power Reactors Operating Licenses or Applications and Major Materials Licenses and Conforming Amendment; Proposed Rule

Dear Mr. Chilk:

On behalf of the power reactor licensees and applicants identified below, the following comments are submitted in response to the Commission's June 27, 1988 proposal to amend the regulations in 10 C.F.R. Parts 170 and 171 * .l/

overview The proposed amendments to Parts 170 and 171 attempt to implement the Comprehensive Omnibus Budget Reconciliation Act

("COBRA" ) of 1987, Pub. L. No. 100-203 (Dec. 22, 1987). The Commission's proposal is, with al l due respect, invalid on four bases. First, the proposed rule fails to exclude regulatory costs that serve independent publ ic interests. The recovery of costs from a regulated entity for services that produce an independent public benefit is tantamount to a tax, which only l/ The licensees and applicants are: Arkansas Power & Light Co., Consolidated Edison Company of New York, Duke Power Corp., Florida Power Corp., New York Power Authority, Northeast Utilities, Pacific Gas & Electric Co., Southern California Edison Co., Systems Energy Resources, Inc., Texas Utilities Generating Co., and Washington Public Power Supply System.

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Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 2 Congress has the authority to impose. See National Cable Television Association. Inc. v. FCC. et al., 415 U.S. 336 (1974);

Federal Power Commission v. New England Power Company. 415 U.S.

345 (1974); Mississippi Power & Light v. NRC, 601 F.2d 223 (5th Cir. 1979), cert. denied, 444 U.S. 1102 (1980). For that reason, the Commission's user fees (or, for that matter, the user fees of any other federal agency) must, among other things, exclude costs associated with activities initiated by the NRC "on its own instigation in support of a general agency program expected to have significant benefit both for the public and for private recipients as yet unidentified." Mississippi Power & Light at 231 n.17.

An example is the $83 million in research claimed by the Commission to be applicable to "all reactors" and included in the proposed Part 171 fees on that basis. Many categories of costs that have apparently been included in the $83 million are for programs that the NRC initiated on its own for which there is no current beneficiary, and for which the future beneficiaries, if any, are presently unknown. such expenditures must be treated as activities that serve the public's interests, and the associated costs must be excluded from the cost basis underlying the Part 171 fee schedule.

Second, the proposed rule fails to relate adequately the fees assessed to individual licensees and the regulatory costs associated with particular licensees or categories of licensees.

Although the Commission acknowledges that the Part 171 fees should reflect the varying degree to which NRC expenditures correspond to different licensees, 53 Fed. Reg. at 24,079, the proposed rule falls far short of that goal. y Y Commenters agree that fees should reflect the varying degree to which NRC costs relate to different licensees.

Commenters, accordingly, oppose the second option referred to in the Supplementary Information accompanying the proposed amendments, see 53 Fed. Reg. at 24,079, i.e., it is our view that uniform Part 171 fees should not be pursued.

In this connection, it should be noted that the Commission in the proposed amendments concludes that $13.5 million out of the $140.5 million included in the Part 171 cost basis, or less than 10 percent, are not generic to all reactors. See 53 Fed. Reg. at 24,082-83, Table IV. But just two years ago, when the Commission issued its final rule adopting Part 171, the Commission concluded that 55 percent of the costs associated with power reactor regulation (i.e., $146 million (Footnote 2 continued on next page.)

Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 3 Third, the NRC has failed to explain adequately the Part 171 cost basis. In particular, while the proposed rule includes broad categories of expenses, it fails to describe even minimally the programs that comprise any given category. As a result, vitally interested parties have not had the opportunity to effectively review the cost basis and comment accordingly.

Fourth, NRC fails to give effect to the legislative history of COBRA, which demonstrates that Congress intended the 45 percent level in the statute to be a "ceiling" and not a "floor." The recovery of more than 45 percent of the NRC budget, and the deletion of the refund provision (Part 171.21), which is triggered where the statutory ceiling is exceeded, are inconsistent with legislative intent.

A. The NRC's Proposal Unlawfully Fails To Exclude Regulatory Costs That Serve Independent Public Interests It is fundamental under user fee case law that regulatory costs that relate to programs that provide independent public benefits are not recoverable from regulated entities. National Cable Television Association. Inc. v. FCC. et al., 415 U.S. 336 (1974). This fundamental principle is based on the U.S.

Constitution, under which the authority to impose taxes is the exclusive domain of Congress. "Taxation is a legislative function, and Congress, which is the sole organ for levying taxes, may act arbitrarily and disregard benefits bestowed by the Government." Id. at 340 (emphasis in original). Agency imposed user fees that do not reflect services to specific users are "conceptually akin to [prohibited] taxes." Central & Southern Motor Freight Tariff Association v. United States, 777 F.2d 722, 725 (D.C. Cir. 1985).

The District of Columbia Circuit very recently acknowledged that the independent public benefits doctrine applies to COBRA.

Florida Power & Light et al. v. NRC, No. 86-1512, slip op. at 9 (May 13, 1988) (emphasis in original) (fees may "not exact payment for an independent public benefit"). In the Supplementary Information accompanying the proposed amendments, the Commission appears, on the surface, to accept the court's judgment that COBRA requires costs associated with independent public benefits (Footnote 2 continued from previous page.)

out of the $270 million total for power reactor regulation) related to specific reactors or reactor types rather than all reactors generically. See 51 Fed. Reg. at 33,224-26.

Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 4 to be excluded from Part 171 fees. y However, the Commission concludes that NRC activities serve the interests of both the public and the industry, and that the benefits to the public are not, therefore, "independent."

The Commission's claim that there are no independent public benefits associated with regulation of the power reactor industry is incorrect, comes too late, and is inconsistent with the Commission's previous position in this matter. In the Mississippi Power & Light case, the Commission acknowledged that NRC regulation of the industry provides independent public benefits. See 43 Fed. Reg. at 7,210; Brief for Respondents at 24-25. The Fifth Circuit agreed, and adopted the Commission's definition of an independent public benefit as a regulatory activity that the Commission undertakes "on its own instigation in support of a general agency program expected to have significant benefit both for the public and for private recipients as yet unidentified." 601 F.2d at 231 n.17 (emphasis added).!/ The importance of excluding such costs from user fees is further demonstrated by the fact that the agency has the burden of showing the absence of independent public benefits; it is the agency's duty to calculate user fees based on "exclusion of any expenses incurred to serve an independent public interest." National Association of Broadcasters v. FCC, 554 F.2d 1118, 1133 (D.C. Cir. 1976).

Y In the 1986 rulemaking adopting Part 171, and in the Florida Power & Light litigation, NRC incorrectly suggested that the segregation of costs related to independent public benefits required by National Cable is unique to user fees promulgated under the Independent Offices Appropriation Act ("IOAA") of 1952.

!/ Mississippi Power & Light provides a legal standard for determining whether a particular regulatory cost provides an independent public benefit. However, even if this were a question of policy rather than law, the Commission would still be required to provide a principled explanation for its change of direction. National Black Media Coalition v. FCC, 775 F.2d 342 (D.C. Cir. 1985). See g_lfil2 Airmark Corp. v.

FAA, 758 F.2d 685, 691-92 (D.C. Cir. 1985); Resource Defense Council, Inc. v. SEC, 606 F.2d 1031, 1049 n.23 (O.C. Cir.

1979). "[W]hen an agency decides to reverse its course, it must provide an opinion or analysis indicating that the standard is being changed and not ignored." Columbia Broadcasting System. Inc. v. FCC, 454 F.2d 1018, 1026 (D.C.

Cir. 1971).

Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 5 In the proposed amendments, the commission fails to meet its burden under Mississippi Power & Light. Instead, the Commission concludes without explanation that there are no independent public benefits associated with NRC regulation of the power reactor industry. Although the record contains no information identifying the specific costs that comprise the Part 171 cost basis, see Part C, below, it is evident that many NRC expenditures fall squarely within the definition of independent public benefit adopted in Mississippi Power & Light.

The generic -- "all reactor" -- research costs referred to in Tables III and IV, 53 Fed. Reg. at 24,082-83, are illustrative. For example, reactor vessel and piping integrity research, which represents more than $10 million in the Part 171 cost basis, will be used "to evaluate licensees' requests to extend their reactor operating licenses beyond current expiration." NUREG-1100, Vol. 4, at 40. Hopefully that research will offer benefits, but it is undeniable that the private beneficiaries, if any, are in the words of Mississippi Power &

Light, "as yet unidentifiable." It is not yet known which licensees will seek to extend operating licences beyond their 40-year terms * .2,/

.2,/ Undoubtedly there are other examples, but the absence of any record describing the research contracts or portions thereof that comprise the majority of the $83 million for research precludes further evaluation. Indeed, the barren record underlying the proposed rule does not confirm that life extension research is included in the $10 million total for vessel and piping integrity research: NRC staff, however, informally advised commenters that the $10 million total includes such research costs.

The NRC may not avoid application of the independent public benefits doctrine by making the sweeping proclamation that all NRC programs add to the safety of reactors. The D.C.

Circuit, in Electronic Industries Association v. FCC. 554 F.2d 1109, 1115 (D.C. Cir. 1976), determined that safety tests conducted by an agency are activities that serve independent public interests, even though "there may be some private benefit" to the feepayer, if those tests are not necessary to ensure licensee compliance with the authorizing statute. The court thus concluded that "a fee [may] only charge for those expenses which are necessary to service the applicant or grantee." Id. (emphasis added). Nonetheless, the proposed rule would require licensees to finance NRC activities that are not necessary to their compliance with the Atomic Energy Act.

Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 6 Moreover, recovering on a per capita basis generic research costs that have no identifiable beneficiary thwarts the Commission's goal of more closely relating fees to regulatory costs. While it is difficult to project the extent to which individual licensees will benefit from current research, the chances are negligible that licensees (whose licenses expire from ten to forty years hence) will benefit in anything approaching the equality implicit in per capita allocation from research programs with indeterminate potential application dates.

B. The Proposed Rule Fails To Distinguish Adequately Between The Substantially Different Costs And Value Of Services To

- Different Licensees The dissenting opinion in Florida Power & Light describes the Commission's FY 1987 uniform Part 171 user fee as "grossly nontailored action." Slip op. at 9 (Starr, J., dissenting). The Commission told the court that a better job could be done, and, in the Supplementary Information accompanying the proposed amendments, the Commission repeats that theme. fu Although the proposed amendments are a step in the right direction, they fall far short of the Commission's stated goal.

The law in this area is well established:

The NRC's annual fee is improper if it is not a "reasonable approximation" of costs to provide special benefits to individual recipients, and is invalid to the extent the NRC's fee "unreasonably exceeds the value of the special services for which it is charged." NCTA II, 554 F.2d at 1106. The fee is also improper unless it is equivalent, "or at least proportionate to," the value of the benefit conferred, City of Vanceburg v.

FERC, 571 F.2d 630, 643 (D.C. Cir.), cert.

denied, 439 U.S. 818 (1978); the fee must be reasonably related to the individual costs of services and to the total costs for particular segments of recipients. NCTA II, 554 F.2d at 1108.

53 Fed. Reg. at 24,079 ("Those requiring the greatest expenditure of NRC resources should pay the greatest fees.").

Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 7 Slip op. at 11 (Starr, J., dissenting), quoting Brief of Petitioners Arkansas Power & Light, et al. at 31. The proposed amendments do not pass muster under those standards.

To be sure, the proposed amendments would make some differentiation among reactors (certain research costs are assigned to (1) reactors located East of the Rockies; (2) General Electric reactors; (3) Combustion Engineering reactors; (4) Westinghouse reactors; and (5) Babcock and Wilcox reactors).

The proposed rule, however, fails to take into account a number of other factors, i.e., type of containment, age of reactor, performance history, relative Part 170 fee responsibility(~.,

allocating a portion of the 171 fee basis in proportion to licensees' relative Part 170 fee responsibility). 51 Fed. Reg.

at 24,086. The result is that, under the proposed amendments, over 90 percent of Part 171 costs are treated as generic or "al l reactor" costs, and fewer than 10 percent are assigned based on reactor characteristics. See 53 Fed. Reg. at 24,082-83, Table IV. That ratio cannot be reconciled with the Commission's determination just two years ago that 55 percent of the costs of reactor regulation were nongeneric. See supra note 2 at 2-3.

Moreover, the Commission's determinations of generic versus nongeneric costs appear arbitrary. For example, the proposed Part 171 cost basis treats as generic long-term validation tests for proposed replacement materials for BWRs. NUREG-1100, Vol. 4 ,

at 42. Under the proposed amendments, these costs will be recovered across the board, even though only BWRs benefit f rom the research. Other examples of nongeneric costs that have been treated under the proposed rule as applicable to all reactors include PWR severe accident analysis, research in severe accident vulnerabilities of, respectively, BWR Mark I , Mark II and Mark III containments, and the portions of the Shippingport PWR aging studies that apply only to PWRs. Id. at 55, 58; NRC Budget Estimates - Budget Summary Within FY 1988 B&R (June 13, 1988) at 4, 26-27 [hereinafter Research Budget Estimates]. 1/

While the NRC suggests that it would be expensive and time-consuming to accurately relate fees to nongeneric services, most of the necessary work has been completed. The data has already 1/ Again, although not revealed by the record , NRC staff confirmed that these costs were treated as generic in the proposed rule.

Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 8 been compiled and analyzed. y In fact, a preliminary analysis of the Part 171 fee basis recently conducted by an NRC Staff member indicated that the proposed amendments treat $7 million of nongeneric projects as generic. V In short, the proposed amendments fail to relate fees with services performed. To correct that deficiency, the Commission should incorporate additional cost differentiating factors into the fee determination process. 10/

C. The NRC Has Failed To Fulfill Its Obligation To Explain The Part 171 cost Basis The Commission has failed to explain the process by which it determined the proposed Part 171 cost basis. An example illustrates this point. Table IV of the Supplementary Information lists various line items that comprise the $83 million in generic research costs that are to be recovered from all reactor licensees. Nothing in the record explains how the line item amounts were determined. Most of the costs are for Y Thus, the Commission cannot claim insufficient time to develop an accurate fee basis and draft a new rule. More than 15 months ago, Chairman Zech advised Congress that the NRC was developing an accurate method for assigning Part 171 costs to the licensees who benefit from those costs. See Letter from Lando w. Zech to Quentin Burdick, Chairman of Committee on Environment and Public Works (April 10, 1987).

Moreover, the increased administrative costs of an accurate fee methodology are justified by the benefits. See 51 Fed.

Reg. at 24,086 (an equitably administered fee program justifies the corresponding administrative expense)

(statement of former Commissioner Bernthal).

V See Research Budget Estimates, supra p. 7. Under the proposed rule, the Commission treats all of the projects that comprise an activity as generic if the activity consists of both generic and nongeneric projects *

.lQ/ Another shortcoming of the proposed rule is that it develops a cost basis from which fees are to be assessed without providing a mechanism that allows for an adjustment in subsequent years. As a consequence, even the minimal relationship between fees and services performed that exists under the proposed rule would be threatened in subsequent years.

Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 9 outside research contracts. Presumably each line item represents the Commission's costs under certain specific research contracts

{or portions of research contracts). The only information available in the record, however, is Table IV itself -- a dollar amount and a title for the corresponding program. In short, there is no identification or description of the underlying costs. Interested parties know the NRC's conclusions, but the incompleteness of the record precludes interested parties "from having a basis to agree or disagree" with the Commission's determinations. Aberdeen & Rockfish R. Co. v. United states, 565 F.2d 327, 334 {5th Cir. 1977). Put another way, despite the Commission's obligation to make available to the public "factual or methodological information which is critical to (the] proposed rule," Sierra Club v. costle, 657 F.2d 298, 397 n.484 {D.C. cir.

1981), the Commission has failed to provide the information that is necessary for meaningful comment. 11/

These principles apply fully to cases involving agency user fees. The correctness of the agency's fee determinations cannot be reviewed where the agency fails to provide "a public explanation of the specific expenses included in the cost basis for a particular fee, and an explanation of the criteria used to include or exclude particular items." Electronic Industries Association, 554 F.2d 1109, 1116-17 {D.C. Cir. 1976); accord, National Ass'n. of Broadcasters, 554 F.2d at 1133. The NRC's actions here disregard these fundamental requirements. 12/

11/ "To suppress meaningful comment by failure to disclose the basic data relied upon is akin to rejecting comment altogether. For unless there is common ground, the comments are unlikely to be of a quality that might impress a careful agency." United States v. Nova Scotia Food Products Corp.,

568 F.2d 240, 252 (2d Cir. 1977).

12/ The Commission's annual budget, NUREG-1100, Vol. 4, does not provide the missing information. That document provides a general description of all NRC research and broad cost totals. Nor has the NRC referenced any information of public record that would assist a licensee in reconciling Table IV with NUREG-1100.

Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 10 D. The Proposed Rule Is Invalid Because It Permits Recovery Of More Than 45 Percent Of The NRC's Budget, Contrary To The Express Intention Of Congress The Commission has concluded that the 45 percent standard mandated by the 1987 COBRA amendments does not represent a ceiling, and that the agency may thus collect fees in excess of that level. Consistent with this position, the Commission has proposed the deletion of current Section 171.21, which provides for refunds in the event the statutory ceiling is exceeded.

Legislative history, however, indicates quite clearly that the Senate and House conferees intended that the Commission would collect no more than 45 percent of its budget through the imposition of user fees. During Senate consideration of this legislation, Senator Alan Simpson, ranking minority member of the Senate Environment and Public Works Committee, stated that the 45 percent level is intended as a ceiling, even though the new statutory provision uses contorted language to achieve that result. To a large extent, Senator Simpson's comments express his displeasure with the budget reconciliation process, noting that the confusing language contained in the new user fee provision was necessary to ensure that the authorizing committee would be "credited" for achieving $25 million in additional revenues. 133 Cong. Rec. Sl8,685 (daily ed. Dec. 21, 1987) (statement of Sen. Simpson). Senator Simpson acknowledged that

[t]o the untrained eye, it would appear much simpler if we had just said that NRC was authorized to increase its fees to 45 percent of its annual budget. But that would not have been scored [by the Budget Committee] as generating revenues, since the appropriations language had already been credited for the assumption that fees would be increased to 50 percent * * *

• In short, this contorted and convoluted approach is authorization for the NRC to increase its fees to 45 percent of its budget for fiscal years 1988 and 1989, after which the fees will revert to the existing level of 33 percent.

Id. at S18,685-86 (emphasis added). Consequently, the Commission's conclusion that Congress intended the 45 percent level to be a floor rather than a ceiling is in error. The proposed rule should be revised to mandate refunds to licensees if the statutory ceiling of 45 percent is exceeded.

Mr. Samuel J. Chilk Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 11 A provision for refunds would also be necessary in the event that the NRC budget is reduced. Recovery of the proposed user fee amounts under a decreased budget obviously would result in the recovery of more than 45 percent of the NRC budget. Whatever NRC's intentions may be, without an express commitment in the regulation to provide refunds, Congress' intent to have the Commission collect only 45 percent may well be defeated by the holders of executive branch purse strings.

Conclusion In view of the foregoing, the licensees and applicants identified herein respectfully request that the Commission withdraw the proposed rule and reissue for public comment a draft rule that (1) excludes those costs that serve independent public interests; (2) determines Part 171 fees based upon individual licensee and applicant costs to the Commission; (3) adequately explains the cost basis underlying the proposed amendments; and (4) provides for refunds to licensees if the statutory ceiling of 45 percent is exceeded for any reason.

Respectfully submitted, Jos ph~ r.

s tt M. DuBoff Bloom BISHOP, COOK, PURCELL

& REYNOLDS ON BEHALF OF Arkansas Power & Light Company Consolidated Edison Company of New York Duke Power Corporation Florida Power Corporation New York Power Authority Northeast Utilities Pacific Gas & Electric Company Southern California Edison Company Systems Energy Resources, Inc.

Texas Utilities Generating Company Washington Public Power Supply System

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COMBUSTION~ ENGINEERING (

July 27, 1988 JUL2819 LD-88-062 Mr . Samuel J. Chilk Secretary of the Commission Attn: Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, DC 20555

Subject:

Proposed Rule - Proposed Revision of 10 CFR Part 170 and 171 License Fee Schedules (53FR24077)

Reference:

(A) Letter from A. E. Scherer (C-E ) to L. W. Zech

( NRC), dated February 1, 1988 (B) Letter from B. Wolfe ( GE) to L . W. Zech (NRC), dated March 24, 1988 (C) Letter from B. Lee (NUMARC) t o L . W. Zech (NRC),

dated June 21, 1988

Dear Mr . Chilk:

Combustion Engineering appreciates the opportunity t o comment on the proposed rule to revise the license fee schedule. Combustion En gineering recognizes t hat the intent of the proposed rule is to allocate costs incurred by the Commission for services provided t o identifiable recipients, however, we believe that several provisions of the proposal should be modified.

The proposed revision would eliminate the ceiling on fees for the generic reviews of topical reports and standard designs. Combustion Engineering has long held the opinion that there should be no review fees assessed to the vendor for topical reports or for standard design approvals, since the case can be made that the vendor is not the primary beneficiary of the approved documents. The principle beneficiaries are actually the NRC, which avoids repetitive reviews of the same material, and the public, which benefits from a more efficient and cost effective regulatory process. We find the elimination of fee ceilings for all generic reviews a further exacerbation of the situation . It is our opinion that the number of topical reports submitted by the nuclear industry to the NRC for generic review will fall even further because of the elimination of fee ceilings. This will occur principally because the vendor bears the burden of costs of preparing, submitting and defending these reports . With the upper limit Power Systems 1000 Prospect Hill Road (203) 688-1911 Combustion Engineering, Inc. Post Office Box 500 Telex: 99297 Windsor, Connecticut 06095-0S0~ UG - 4 1988 Acknowledged by card . ..........,., ' -

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Mr. Samuel J. Chilk LD-88-062 July 27, 1988 Page 2 on the costs removed the risk will be viewed as excessive and, hence, their viability questionable. Ultimately, there will be fewer generic reports offered for review and the NRC will, once again, be required to conduct plant-specific and repetitive reviews of technical issues.

Specific concerns of Combustion Engineering relative to standard design reviews have been expressed in Reference (A), as have the concerns of General Electric and NUMARC [References (B) and (C), respectively]. It is requested that the Commission consider these concerns carefully in the rulemaking process.

Combustion Engineering appreciates the opportunity to offer these comments as well as the more detailed comments of the Enclosure. Should the Staff have any questions on our comments, please do not hesitate to call me or Mr. L. E. Philpot of my staff.

~:RING, Very truly yours, INC.

A.~er Director Nuclear Licensing AES:ss

Enclosure:

As Stated

Enclosure to LD-88-062 Page 1 of 2 DETAILED COMMENTS ON PROPOSED RULE

1. Elimination of Ceilings for Generic Reviews As the Commission noted in the proposed rule, ceilings were originally established as a means of ensuring the predictability of the final costs for any given regulatory "service". This is still an appropriate and reasonable objective. But, even more importantly, it should be recognized that removal of generic review fee caps could have an adverse effect on the Staff and its service to the public. It is generally accepted that generic reviews improve Staff efficiency and help streamline the licensing process. This is achieved by the concentration of NRC attention and limited resources on reviews of new technical issues of safety significance. The Staff thereby avoids repetitive and resource consuming plant-specific reviews. If, as a result of the anticipated reduction in submitted topical reports, a resource-limited Staff's attention is diluted over a series of plant-specific applications, safety matters will obviously not get the level of attention they would otherwise command.

The Commission's observation that an estimated $23 million in fees were not collected because of fee ceilings does not necessarily justify ceiling removal. Instead, the Commission should compare the

$23 million in "lost" fees to the estimate of the Staff resources "saved" through the elimination of repetitive reviews and the corresponding improved level of safety achieved. (If, in fact, the "lost" fees are not more than offset by the "savings" and benefits derived, the Commission still has the alternative of mitigating their concern by revising the caps upward more frequently. )

Aside from the impacts on NRC effectiveness presented above, there is the more important impact the proposed fee schedule would have on the viability of the standardization and topical report programs. There is a significant disincentive that is created by the proposed rule since it would allow the Staff to accumulate charges without limit for such reviews. It is our opinion that this approach is inconsistent with the Commission's stated intention of promoting standardization and generic reviews. Instead, it erects a needless impediment to those goals.

2. Inequitable Treatment in Annual PWR Fee Determination It is not clear from Table IV of the proposed Part 171 what the basis is for the apportionment of staff expenditures between owners of PWRs of specific reactor vendors. Given the complexity and uncertainty involved in completing such a task in a fair and equitable manner, it may be more appropriate -- except in the most extraordinary of cases

-- to charge a fixed rate for each reactor regardless of reactor type, vendor or location. It is also not clear from the proposed rule that those individual reactors requiring greater regulatory attention would, in fact, carry a proportionally greater share of the NRC's

Enclosure to LD-88-062 Page 1 of 2 costs through the assessment of appropriate fees (annual or otherwise). This was the stated objective of the proposed fee schedule and could use additional clarification.

3. Proposed Option The Commission requested comment on a second option in Section III of the notice. For the reasons stated in comments 1 and 2, Combustion Engineering strongly favors the second option which would not revise Parts 170 and 171 other than to increase the per-reactor annual fee.

This would allow the Commission to collect fees up to a revised level of 45% of their budgeted costs.

0 Public Service' 2420 W. 26th Avenue, Suite 100D, Denver, Colorado 80211 A.O. WILLIAMS, JR.

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NUCLEAR OPERATIONS BHII NU July 25, 1988 Fort St. Vrain Unit No. 1 P-88278 Secretary U. S. Nuclear Regulatory Commission Washington, D.C. 20555 ATTN: Docketing and Service Branch Docket No. 50-267

SUBJECT:

Comments on Proposed Rule 10 CFR Parts 170 and 171 Gentlemen:

In response to Notice of Proposed Rule dated June 27, 1988 concerning modifications to 10 CFR Parts 170 and 171, Public Service Company of Colorado (PSC) hereby submits comments on the Proposed Rule.

The Commission proposes modifications to 10 *CFR Parts 170 and 171 that make licensing fees more appropriate to NRC costs incurred in providing services to each reactor. The proposed rule is the result of a requirement imposed by Congress, that the NRC collect at least 45% of its budget from licensees.

The Commission has requested specific comments on a second option that would defer the effect of changes to Part 170 until next year.

This would avoid revising charges that may already have been billed for Part 170 services. PSC supports this second option and recognizes that any additional money required this year will have to be made up under Part 171 fees.

In addition to the changes proposed, PSC suggests that Section 171.11, Exemption, be revised to include consideration of rate base treatment of Part 170 and 171 fees. Some utilities are unable to recover the proposed new fees through increased rates while others are able to recover the increased costs. For the utilities that JUL i> l~p Acknowledged by card. . . . . * * * * * * * ..... . .

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P-88278 Page 2 July 25, 1988 cannot recover the increased fees, the impact of the proposed fees constitutes a rate reduction without appropriate hearing.

Should you have any questions regarding Public Service's comments, please contact Mr. M. H. Holmes at (303) 480-6960.

Very truly yours, R. 0. Williams, Jr.

Vice President Nuclear Operations ROW/JW:brc cc: NRC Document Control Desk

DOCKET NUMBER PROPOSED RULE Detroit Fermi2 6400 North Dixie Highway Edison Newport, Michigan 48166 (313) 586-4000

• ea Jl 27 PJ :31 Nuclear Operations July 26. 1988 NRC-88-0192 Secretary U. s. Nuclear Regulatory Commission Attn: Docketing and Service Branch Washington. D. C. 20555

Reference:

Fermi 2 NRC License No. 50-341 NRC Docket No. NPF-43

Subject:

Proposed Revision of Fee Schedules The proposed Revision of Fee Schedules was published in the Federal Register. Vol. 53. No. 123. on June 27. 1988 for comment. The proposed rule change applies to Fiscal Year 1988. even though the fiscal year is nearing completion. The increase in costs is significant. The timing of the proposed rule is such that the increase for 1988 could not be budgeted. In future years this wil l cont i nue to be a problem. As a fiscally responsible organi zation.

such retrofit increases in fees are difficult to manage.

It would be preferable if this rule change and annual charges apply to the following year. rather than to the current almost past fiscal year. This would entail payments based on the previous year's NRC budget. but would permit licensees to better prepare for the expense.

The proposed rule did not address how the retrofit costs would be billed. Will it be a lump sum for the first 3 quarters of fiscal year 1988? Will it be added to the 4th quarter invoice ? This needs to be addressed.

We recognize that Congress had mandated that the NRC c ollect a significant portion of its budget through fees. What we ask is that the NRC in turn allow us to be fiscally responsible by publishing a revised fee schedule applicable for the following year vs. the current year.

Sincerely.

L. S. Goodman Director l cc: Mr. A. B. Davis Mr. R. c. Knop Mr. T. R. Quay Mr. w. G. Roge r s Shaw. Pi ttman. Potts & Trowb i dge 2300 N. Street N.W ** Washington . D. c. 20037

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111~,, t S* ,nif r' 8R.l\NC11 ,d Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attn: Docketing and Service Branch Re: Proposed Rule on Revision of Fee Schedules 53 Fed. Reg. 24077 (1988)

Gentlemen:

In the Federal Register notice published on June 27, 1988, 53 Fed. Reg. 24077, the Nuclear Regulatory Commission requested comments on the proposed amendments to 10 CFR Parts 170 and 171. Sacramento Municipal Utility District, the owner and operator of Rancho Seco nuclear plant, submits the following comments. In addition, the District supports the comments filed on behalf of itself and other electric utilities by the law firm of Shaw, Pittman, Potts & Trowbridge.

The District's particular interest is in the summary table included in proposed Section 1 71. 15 ( c) . That table sets forth, among other things, additional per reactor fees which vary according to the manufacturer of the nuclear steam supply system.

The additional per reactor fee applicable to the District, that for Babcock & Wilcox reactors, is inappropriate because it includes amounts which the NRC itself has agreed to pay. Wholly apart from the legitimacy of charging licensees for these types of research costs in general, the NRC should not be allowed to renege on previously adopted cost-sharing arrangements. ti \Ill

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Secretary U. s. Nuclear Regulatory Commission 2. July 25, 1988 The largest share of the added fees for B&W reactors is attributable to the $1. 39 million in FY 1988 NRC program support dollars for the Multi-Loop Integral System Test (MIST) research program. See Supplementary Information, Table IV, 53 Fed. Reg. at 24084. NRC agreed to bear those program costs as a part of the arrangement with the B&W Owners Group under which the MIST program was initiated. NRC Contract 04-83-168, effective June 6, 1983 (as amended), provided that NRC was to provide a cash contribution of about $15 million for the entire MIST program. The B&W utilities, the Electric Power Research Institute and B&W agreed to cash contributions of about $6.6 million. The statutory basis for the proposed fee increases, Section 5601 of the Omnibus Budget Reconciliation Act of 1987, provides no basis for the NRC to retract its agreement to pay a portion of the MIST program costs.

Nor does the predecessor provision, Section 7601 of the Consolidated Omnibus Budget Reconciliation Act of 1986. It is improper for NRC to seek to avoid both the letter and spirit of the MIST agreement by trying to recover its costs for the MIST program, and for any other similarly funded programs, in the guise of increases to the Part 171 annual charge.

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A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS 2300 N STREET, N . W.

TELEX/CABLE 89* 2693 (SHAWLAW WSH)

WASHINGTON, C. C . 20037 ~88 JUL 27 p J,1!1'2tf.i1A OF'FICE J501 F'f:l,./.i CREDIT DRIVE MCLEAN, VIRGINIA 22102 TELEPHONE (202) 663*8063

,:n*r .. (703) 790-7900

~u TELECOPIER (202) 223-3760 & 223-3761

.JAY E. SILBERG, P .C .

July 27, 1988 Secretary U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch Re: Proposed Amendments to 10 C.F.R. Parts 170 and 171 53 Fed. Reg. 24077 (1988)

Gentlemen:

On June 27, 1988, the NRC published in the Federal Register a proposed rule to implement Section 5601 of the Omnibus Budget Reconcilation Act of 1987. See 53 Fed. Reg. 24077 (1988) . We are pleased to submit these comments on behalf of Baltimore Gas &

Electric Company, Carolina Power & Light Company, The Cleveland Electric Illuminating Company, Consolidated Edison Company of New York, Inc., Duquesne Light Company, GPU Nuclear Corporation, Indiana & Michigan Power Company, Kansas City Power & Lig ht Com-pany, Kansas Electric Power Cooperative, Inc., Kansas Gas and Electric Company, Louisi ana Power & Light Company, Northern States Power Company, Pennsylvania Power & Light Company, Sacra-mento Municipal Utility District, The Toledo Edison Company, Union Electric Company, Wisconsin Electr i c Power Company, Wolf Creek Nuclear Operating Corporation, and Yankee Atomic Electric Company. All of these utilities hold nuclear power r eac tor oper-ating licenses .

I. INTRODUCTION Section 5601 of the Omnibus Budget Reconcilation Act of 1 987, Pub. Law 100-203, 101 Stat. 1330-275 ( 1 987), amended sec-tion 760l(b)(l) of the Consolidated Omnibus Reconcilation Act of 1 986, Pub . Law 99-272, 100 Stat. 147, to read as follows :

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SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 2

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• The Nuclear Regulatory Commission shall assess and collect annual charges from its licensees on a fiscal year basis, except that -

(A) The maximum amount of the aggregate charges assessed pursuant to this paragraph in any fiscal year may not exceed an amount that, when added to other amounts collected by the Commission for such fiscal year under other provisions of law, is estimated to be equal to 33% of the costs incurred by the Commission with respect to such fiscal yearL except that for fiscal years 1988 and 1989, such percentage shall be increased an additional 6 percent of such costs plus all other assessments made by the Nuclear Regulatory Commission pursuant to House Joint Resolution 395, 100th Congress, 1st Session as enacted; but in no event shall such percentage be less than a total of 45 percent of such costs in each such fiscal year; and (B) Any such charge assessed pursuant to this paragraph shall be reasonably related to th e r e gul ato ry se rvic es provi d ed by the Com-mission and shall fairly reflect the cost to the Commission of providing such service.

(Underscored language added by §5601).

By rule dated September 16, 1986, 51 Fed. Reg. 3324, et seq.

(1986), the NRC promulgated a new Part 171 to Title 10 C.F.R. im-posing an annual fee on NRC power reactor licensees in an amount estimated to equal 33% of the NRC budget less amounts collected under Part 170 of Title 10 C.F.R.l/ Pursuant to that Rule, an annual fee in the initial amount of $950,000 was imposed upon each of 101 power reactor licensees for Fiscal Year 1987.

1/ The Part 170 fees were promulgated in 1984 under authority granted by the Independent Offices Appropriations Act of 1952, 31 U.S.C. § 9701 ("IOAA"). See 49 Fed. Reg. 21293 (1984).

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SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 3 NRC now proposes to implement section 5601 of the 1987 Bud-get Act in two principal ways:

1. By amending Part 170 to adjust hourly fees for in-creases in NRC costs since 1984, remove ceilings on certain Part 170 fees, and collect fees for certain routine and non-routine inspections, without regard to timing or frequency; and

2. By amending Part 171 to increase the annual fee base to at least 45% of the NRC budget in both of fiscal years 1988 and 1989 and allocate the costs of certain research programs to those licensees allegedly benefiting from them. The new rule raises the annual fee to a range of between $1,196,000 to $1,534,000.

At the outset, we note that the new annual fee rule suffers from the same infirmities as the current Part 171 in that the "fee" amounts to an agency-imposed "tax" and that it seeks to charge licensees for the costs of independent public benefits.

See National Cable Television Ass'n v. United States, 415 U.S.

336 (1974). Since Part 171 has only recently been upheld on re-view, however, we will incorporate herein our earlier arguments to leave the issue open for subsequent judicial review. Compare Florida Power & Light Co. v. U.S., 846 F.2d 765 (D.C. Cir. 1988),

with Mid-America Pipeline Co. v. Dole, (No. 86-C-815-E, N.D.

Okla., December 10, 1987) (DOT annual fee invalid as impermi ss i b l e delegation of th e legislative power t o a ss e ss taxes), appeal filed sub nom. Burnley v. Mid - America Pipeline Co. (S. Ct., March 9, 1988).

Apart from this fundamental objection, we generally approve of these first, albeit insufficient, attempts by the Commission to redistribute the burden of the Annual Fee based upon some mea-sure of the benefits conferred by the Commission on individual licensees. We strongly disagree, however, with the Commission's interpretation of the statute, which effectively reads out of the legislation both the provision requiring the Commission to in-crease the fee only by 6% per year, and the reference to collec-tions under House Joint Resolution 395, 101 Stat. 1329-128-29.

We also disagree with the Commission's continued efforts to sin-gle out nuclear power reactor licensees for full cost payments under the Part 170 fee-per-service rules as well as for the annual charges set forth in Part 171. Finally, we believe that a more equitable allocation of the fee can be achieved quite easily by taking into account those variables which are a factor in NRC costs.

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 4 We accordingly urge the Commission to modify its proposed Rule as follows:

1. To provide that the annual fee base rise first to 39%

in Fiscal Year 1988 and then to 45% in Fiscal Year 1989, in each year after first taking full account of all collections received by the NRC from any source during each such fiscal year.

2. To remove all fee ceilings from the Part 170 fees, par-ticularly those applicable to materials licensees, and to impose some sort of an annual fee on those licensees as well; and

3. To better distinguish among nuclear reactor licensees by more precisely allocating "generic" costs in relation to the benefits each licensee receives.

As a final comment, we note that, whatever the NRC does, the proposed amendments to Part 171 mechanically do not accomplish what NRC currently proposes to do and further revisions of the regulatory language are necessary before any fee is imposed.

II. DISCUSSION A. The NRC Has Misinterpreted the Statute to Require A Minimum 45% Fee Base Section 5601 of the Omnibus Budget Reconciliation Act, as the NRC discussion tacitly concedes, is not a model of legis-lative draftmanship. However, it does require that for each of Fiscal Years 1988 and 1989, the maximum amount of annual charges plus other amounts collected by NRC shall not exceed the current 33% of NRC's costs plus an additional 6% of those costs plus all other assessments under House Joint Resolution 395. This would result in a 39% of budget fee base for Fiscal Year 1988. The problem, as NRC notes, is that the statute also states that "in no event shall such percentage be less than a total of 45% of such costs in each such fiscal year."

A fundamental principle of statutory construction is that "effect must be given, if possible, to every word, clause and sentence of a statute." 2A Sutherland, Statutory Construction

§ 46.06 at 104 (4th ed. 1984). What the NRC does, however, by insisting upon a 45% minimum fee for both years, is to completely

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 5 ignore both the 6% language of the statute as well as the requirement that it take into account assessments made under House Joint Resolution 395. NRC thus assumes that the 6% figure is merely a starting point for determining the amount of the annual fee, and that the resulting 39% of the budget must in-crease if other "assessments" do not add up to the required 45%.

Inexplicably, it then also proceeds to reject the inclusion in the fee base of the various "assessments" mentioned in the Joint Resolution -- the "monies received by the Commission for the co-operative nuclear safety research program services rendered to foreign governments and international organizations, and the Ma-terial and Information Act authorization programs including crim-inal history checks under Section 149 of the Atomic Energy Act, as amended." 53 Fed. Reg. at 24078.

Reasonably construed, however, the statute requires the NRC to gradually increase the fee base from the present 33% ceiling to a fee base of 39% (33% plus 6%) of the NRC budget in 1988 and to 45% (39% plus 6%) in 1989. To this 39% figure for 1988 must be added the amounts expressly identified in House Joint Resolu-tion 395. Although the resulting figure would not necessarily reach 45% in Fiscal Year 1988, that amount would most certainly be achieved or exceeded in 1989. In any event, only this inter-pretation can both give meaning to the 6% language of the statute and take into account the amounts expressly referenced in the Joint Resolution. While this interpretation may make it somewhat more difficult to reconcile the language of the final clause of the provision ("not less than 45%), it is preferable to the NRC's interpretation which completely reads out of the statute the first two clauses of the new wording (i.e., the 6% clause, and the House Joint Resolution clause).

This result is supported by crucial legislative history which the NRC ignores. See 133 Cong. Rec. S 18685-87 (Dec. 21, 1987). In remarks inserted into the Congressional Record on December 21, 1987, Sen. Alan Simpson (R-Wyo.) explained that the "contorted and convoluted" language of the conference bill was the result of Committee attempts to influence the Congressional Budget Office "scoring process" for deficit reduction efforts.

What Section 5601 actually does, however, according to Sen.

Simpson is to "authorize(] the Commission to collect increased user fees in an amount up to 45 percent of the agency's budget for 2 fiscal years". (Emphasis added). The fact that the 45%

figure is a "limit", to use Sen. Simpson's words, is confirmed by

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROF"ESSIONAL CORPORATIONS Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 6 the mechanics of the statute which adds the 6 percent annual fig-ure on to the existing 33 percent ceiling.

A further means of giving effect to all of the language of the statute would be to add to the fee base amounts collected by the Commission for fines, penalties and interest, adjustments which are expressly authorized by the first part of Section 760l(b) of COBRA, but which have been so far steadfastly resisted by the NRC. To the extent that H.J. Res. 395 assessments, plus fines, penalties and interest total 6% of the NRC budget for Fis-cal Year 1988, all provisions of the statute will have been satisfied and a fully reasonable interpretation of an admittedly difficult statute achieved.

B. The Part 170 Amendments Should Be Expanded to Remove the Caps On Materials Licensee Fees The proposed amendments to the Part 170 IOAA fees seem appropriate,llnot only because they make adjustments for in-creased costs to the NRC which have occurred over time, but be-cause by lifting ceilings or exemptions from some fees they serve the purpose of placing the cost of NRC activities on those on whose behalf the activities are undertaken. We oppose the NRC's proposed "second option" to amend only the Part 171 fees while leaving the Part 170 schedule untouched. 53 Fed. Reg. at 24079.

For the same reason, we also oppose the retention of fixed fees for many if not all of the services rendered to material licensees under Section 170.32. Fixed fees may be defensible where billing expenses are high relative to cost of the service, and where those fixed fees represent a reasonable estimate of the average cost to the NRC of performing the specified service.

However, the NRC appears to justify its retention of these fixed fees by its cryptic and unsupported statement that:

Fee ceilings for selected services are re-moved and the remaining fixed fees are ll Although the professional staff rate of $80 per hour

($138,800 per professional staff year) intuitively seems too high.

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROl'ESSIONAL C ORPORATIONS Se-.: r e t ary U.S. Nuclear Regulatory Commission J uly 27, 1988 Page 7 retained since the ratio of NRC costs to fees collected is approximately equivalent to the percentage of the budget to be collected into the General Treasury.

53 Fed. Reg. at 24080 (emphasis added). The precise meaning of this sentence is unclear and the NRC provides no support for the statement, but we assume that the NRC means that it is currently collecting approximately 45% of its costs of performing those specific services.

While retention of these fixed fees at first glance sounds reasonable (assuming that the NRC has some basis for claiming that it is collecting 45% of its material licensing costs),

charging material licensees only 45% of the costs identifiable to them cannot be justified where power reactor licensees not only are being charged at full cost for all such services, but are being assessed a substantial annual fee as well. While we be-lieve that the NRC annual fee should be amended to apply to those licensees as well, at a minimum, full cost pricing (whether on a fixed fee or an open-ended basis) should be employed.

The fact that the NRC already has in place a presumably well-functioning system for logging and billing personnel time attributable to specific licensees under Part 170 certainly cre-ates a presumption that the same could be easily accomplished for materials licensees .

e In the same spirit, the NRC should remove the fixed applica-tion fees which remain in proposed §170.21. With all these facility fees being based on pay-as-you-go, full cost recovery, a substantial arbitrary fixed application fee is no longer appro-priate.

C. The NRC Should More Closely Tie the Burden of the Annual Fee to Benefits Flowing to Individual Licensees, While Broadening the Class of Licensees Upon Which the Fee is Imposed The current Part 171 i mposes a uniform annual fee on one cl ass of li censees - holders of power reactor opera t ing licenses. The proposed Part 171 attempts f or the first t i me to relate the amount of the fee t o t he cos t s of providing regu l atory services t o categories of reactor l icensees. But t he Rule

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 8 continues to ignore completely the benefit side of the equation.

The Commission accordingly should revise the reactor licensee fee to relate to benefits accruing to individual recipients, while extending the fee burden to others who also share in the benefit from NRC regulatory services.

1. The Annual Fee Should Be More Closely Linked to the Benefits of the Regulatory Services Provided While the Court in Florida Power and Light Co. v.

United States, 846 F.2d 765 (D.C. Cir. 1988), upheld the Part 171 annual fee against both statutory and constitutional challenges, the majority opinion noted "with strong approval that the Commis-sion is attempting to develop a revised fe~ schedule which would provide a range of fees" among individual licensees. 846 F.2d at 770. In defense of the uniform fee adopted in Part 171, the Court "recall[ed] in this context the short time Congress af-forded the Commission to frame and promulgate a rule." Id. at 771.1/ -

The dissent (Starr, J.) was less forgiving, observing that while the NRC had attempted to consider the costs of providing regulatory services, it had made "no benefit side calculation whatsoever, other than the hopelessly general determination that all services that form the basis for its cost calculations bene-fit the entire class of holders of power reactor operator licens-ees to a general or lessor extent." 846 F.2d at 777. Judge Starr instead interpreted COBRA, the pertinent language of which is retained in the present statute, to require the Commission 1) to demonstrate "on a licensee-specific basis that the fee to be a assessed is reasonably related to the actual cost of the regula-tory service provided . . . " and 2) in imposing the fee to fairly approximate the "benefit inuring to the licensee". Id. at 779, 781.

In failing to consider any number of methods by which it might have drawn a closer fit between benefit and burden, the 11 Indeed, at oral argument before the Court of Appeals, the NRC acknowledged that it had been at work since the enact-ment of COBRA on a system to match expenses with recipients.

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 9 dissent noted that the NRC "effectively reads out of the statute standards requiring its fees to be reasonably related to regula-tory services provided". Id. at 781. The dissent specifically mentioned several possible means of achieving the required fit between benefit and burden, including, for example "(l) basing the annual fee upon the level of the licensee's fee assessments under the IOAA as an approximation of the licensee's use of reg-ulatory services; . . . (2) basing the fee upon the amount of time spent by the NRC on each licensee or the number of regula-tory matters pending . . . [or (3) basing the fee] on the power rating in thermal megawatts for each reactor"." l.Q_. at 781 &

n.15.

While the NRC has now made a modest effort to address more precisely the cost side of the equation through changes to the Part 171 fee structure, it still has done nothing to estimate the benefits of NRC regulatory services to individual licensees or to tie the amount of the fee to those benefits. As a result of this failure, the NRC anticipates continued applications for exemp-tions and even makes provision for an increase in the fee to the remaining licensees to account for exemptions granted. The Part 171 fee is still basically a uniform annual charge with adjust-ments for categories of reactor licensees made only on the basis of the cost to the Commission of various parts of the research budget, and not upon any "fair approximation of the use of the system". Massachusetts v. United States, 435 U.S. 444, 466-67 (1978).

2. NRC Should Expand the List of Licensees Subject to the Annual Fee Rule Finally, the NRC should reconsider its decision to impose the annual fee only on power reactor licensees. Many of NRC's generic research activities being undertaken have obvious benefits to licensees other than power reactor licensees and it is clear from a review of the NRC budget that other research ac-tivities not listed in the basis for the annual fee are being un-dertaken by NRC which can and should be properly charged against all NRC licensees. The NRC has never offered a cogent reason why a broad-based fee should not be applied other than to state that many small licensees are nonprofit institutions or that the presumed intent of Congress was not to charge these organiza-tions.17 Certainly, however, NRC has both the authority to 1/ The NRC has pointed to no evidence, and we are aware of none, that Congress incorporated an eleemosynary intent fa-voring some institutions at the expense of others.

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Secretary U.S. Nuclear Regulatory Commission July 27, 1988 Page 10 impose some sort of annual fee on these licensees as well as the discretion to grant exemptions to certain entities within that group for cause shown on the same basis as it currently does for certain power reactor licensees. NRC should treat power reactor licensees and other licensees with an even hand.

Now that the NRC has departed from the uniform annual fee there is no reason why the cost of services pertinent to materi-als licensees or "generic" nuclear research activities should not be allocated on some equitable basis among the appropriate classes of NRC licensees. A number of allocation methods are possible. For example, quantities of materials handled could serve as an appropriate measure of the annual fee for those other licensees.

D. The Proposed Amendments to 10 CFR Part 171 Do Not Accomplish What NRC Says They Do Although the NRC explained what it wished to accomplish in amending 10 CFR Part 171 at pages 24080-85 of the Federal Reg-ister Notice, those changes are not fully reflected in the pro-posed regulatory amendments. Putting aside any disagreements we may have with the NRC's interpretation of the statute, the discrepancies we note between NRC's expressed intent and its ac-tions include the following:

1. The statute clearly provides that the increased percentage figures implemented by the NRC are for fiscal years 1988 and 1989 only, yet NRC has deleted completely those parts of the Rule which reflect the current 33% ceiling fee. ~ ' 10 CFR

§§ 171.15(c), (d) & (e); 171.21.

2. The discussion at page 24081 makes reference to a factor "M", and to a formula utilizing that factor, apparently in an effort to make provision for a fiscal year 1989 charge. The "M" factor, however, is not defined and nowhere appears in the final regulation.

3. Indeed, NRC nowhere makes provision for assessment of an annual fee in fiscal year 1989. The amendments to 10 CFR

§ 171.15 merely set forth a table of charges for fiscal year 1988. There is no means specified for imposing an annual fee on individual licensees in fiscal year 1989, since the only opera-tive sections provide a basis merely for the calculation of the

SHAW, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS

• ...~retary

.s. Nuclear Regulatory Commission July 27, 1988 Page 11 total fee base and for reducing that fee base in the event it exceeds 45% of the NRC's budget.

Accordingly, the NRC must make technical changes in its amendments to 10 CFR Part 171 if it wishes to impose for an in-creased annual fee in fiscal year 1989.

E. The Proposed Amendments Improperly Attempt To Recover Costs To Which NRC Is Contractually Committed The proposed amendments to Part 171 attempt to impose additional charges for classes of power reactors based on reactor vendor and geographical location (i.e., east of the Rockies). In at least one case, it appears that the additional costs which NRC is seeking to recover for a reactor class are costs which NRC has contractually committed to pay. It is improper for the NRC to use this annual charges rulemaking to avoid its prior agreement.

The table included in proposed §171.15 shows program support costs of $2.9 million for Babcock & Wilcox reactors. These costs plus the associated professional staff (FTE) are then divided among 10 B&W reactors for an additional per reactor annual charge of $342,000 for each B&W reactor. As shown in Table IV of the Supplementary Information accompanying the rule, $1.4 million (plus 0.5 FTE) of these costs are associated with the MIST (Multi-Loop Integral System Test) program. 53 Fed. Reg. at 24084. In creating this program, however, NRC agreed to make cash contributions to it, as did the utilities owning B&W reac-tors, B&W, and the Electric Power Research Institute. See NRC Contract 04-83-168. NRC should not be entitled to change the es-sential terms of the agreement establishing the MIST program in this back-handed fashion.

F. The Costs of Reference Design Approvals Should Not Be Given Uniquely Favorable Treatment Proposed §170.12(e)(2) provides for the deferral of re-view fees for facility reference standarized design approvals until the approved/certified design is referenced in one or more applications or up to 10 years from the date of design certifica-tion. The effect of this unique treatment is to reduce, at least temporarily, the amount of fees collected under Part 170, thus requiring an increase in Part 171 fees. Thus, power reactor

SHA W, PITTMAN, POTTS & TROWBRIDGE A PARTNERSHIP INCLUDING PROFESSIONAL CORPORATIONS Sec ei:ary U.S. Nuclear Regulatory Commission July 27, 1988 Page 12 licensee annual charges will be higher than if the entities using NRC staff resources for review of reference designs had been charged for the costs of the staff review as that review prog-resses. While licensees must pay the review costs on an on-going basis (generally quarterly), applicants for reference design ap-provals need pay nothing until well after the review is complet-ed. While the Commission should properly seek to encourage stan-dardization, we believe that it is inappropriate to do this by increasing the annual charges paid by licensees.

CONCLUSION For these reasons, we believe that the proposed amendments to the Part 170 user fees and the Part 171 annual fee could be substantially improved and made more equitable with some rela-t ively minor modifications. Accordingly, we urge the Commission to adopt a rule which will appropriately construe the statute wh ile making broader and more equitable the allocation of the an nual fee.

Very tru{yL~.

s i lberg, P. c ..

M. Brownell

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USNRC WILLIAM E. BAER, ,JR.

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• THO MAS A. SCHM UTZ ,JANE I. RYAN M ICHA E L F. HEA LY .JACOLYN A. SIMMONS RO BERT I. W HITE RO B ERT H SOLOMON S CO TT A . HARM AN CHARLES C. THEBAU D , .J R.

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BR IAN R , GISH COUNSEL HAND DELIVERED Secretary United States Nuclear Regulatory Commission Washington, D.C. 20555 Attention: Docketing and Service Branch

• Re: Proposed Revision of Part 170 and Part 171 Fee Schedules

Dear Sir:

,e On behalf of Florida Power & Light Company, Illinois Power Company and Iowa Electric Light and Power Company, we hereby submit comments in response to the proposed rule, entitled hRevision of Fee Schedules,h issued on June 27, 1988 and publ i shed at 53 Fed. Reg. 24,077 (1988). The proposed rule would amend the fees schedules found in Parts 170 and 171 of the Commission's regulations. Our comments are directed to certain aspects of each part.

Part 170 Our principal objection to the proposed revis i ons of Part 170 relates to the removal of the current ceil i ngs on the collection of fees. As the Commission recognizes, thes e ceilings "were established by the Commi ssion at the r e que st o f the regulated industry as a means of assigning pred i ctabi l ity as to what the final costs of a regulatory service would be."

53 Fed. Reg. at 24,679. We submit that the reasons for assign ing predictability are as compell i ng tod ay as they were whe n the 8

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Commission imposed the ceilings. Indeed, because of the proposed increase in the agency-wide professional staff-hour rate, con-siderations of predictability more than ever require the reten-tion of ceilings.

Part 171 Our objections to the proposed revisions of Part 171 of the Commission's regulations are threefold. First, the proposal does not remove the most fundamental of the defects which we and others have expressed concerning the Commission's present assessment and collection of Part 171 annual fees.

The Commission continues to believe that there has been delegated to it authority to assess and collect annual fees for "generic" regulatory services benefitting broad "classes" or "types" of power reactor licensees. 53 Fed. Reg. at 24,078, 24,080-82.

It does not feel compelled to identify any special benefits rendered to individual licensees, as the Commission believes that such a matching of special benefits and fees is not required by Section 7601 of the Consolidated Omnibus Budget Reconciliation Act of 1985 ("COBRA"), as amended by Section 5601 of the Omnibus Budget Reconciliation Act of 1987 ("OBRA"). In the Commission's opinion, the requirement that fees match "individually identifi-able services" is applicable only to Part 170 fees assessed under the authority of Title V of the Independent Offices Appro-priation Act of 1951. Id. at 24,078.

We expressed our strong disagreement with the Commis-sion's interpretation of its statutory authority to collect annual fees in our comments, filed on July 16, 1986, when the Commission first proposed to add Part 171 to its regulations.

When the Commission issued a final rule providing for the re-covery of the "generic" costs of regulating classes of licensees, 51 Fed. Reg. 33,224 (1986), we sought judicial review. That effort resulted in the split decision in Florida Power & Light Co. v. United States, Nos. 86-1512, et al. (D.C. Cir. May 13, 1988), upon which the Commission nowrelies. However, we are seeking review of that decision in the Supreme Court. In the meantime, we continue to express our belief that amended Section 7601 of COBRA, when read in the context of the body of judicial decisions construing similar user fee statutes, compels the Commission to first identify specific services benefitting individual licensees before proceeding to assess annual fees intended to recoup the costs associated with these services.

In brief, the proposed rule relies upon legal judgments which we questioned in our July 16, 1986 comments and have continued to question in the on-going litigation over the legality of

NEWMAN & HOLTZINGER, P. C.

the Commission's annual fee legislations. We therefore incorpo-rate herein the views which we have expressed in the comments and in the litigation.

Second, the Commission's decision to assess an annual fee that is distinguished only by the geographic location of the power reactor (east or west of the Rocky Mountains) and the reactor vendor (General Electric, Combustion Engineering, Babcock & Wilcox, or Westinghouse) is inconsistent with its stated belief that those licensees requiring the largest expendi-tures of NRC resources should pay the largest fees. 53 Fed.

Reg. at 24,077, 24,079, 24,082. As proposed, each member of a defined "class" will pay the same annual fee regardless of the individual demands imposed on the agency or the individual benefits received. Id. at 24,080, 24,082. If the Commission truly were dedicatedto the concept expressed in the preamble to the proposed rule, it would make an effort to further sub-divide the few classes identified down to the level of individual power reactor operating licenses, of which there are only 110.

The Commission cannot seriously believe that all of one vendor's power reactors east of the Rockies, for example, impose identical demands on the Commission and accordingly should be assessed the same annual fee. The Commission therefore stops short of its articulated goals, and the classification is not rational-ly justified.

Finally, the Commission reads Section 5601 of OBRA as removing the 33 percent ceiling found in Section 7601 of COBRA and inserting in its place a direction that the agency collect at least 45 percent of its budget during fiscal years 1988 andl989. 53 Fed. Reg. at 24,078. The Commission reasons that as its fee collections now can exceed the percentage target found in the governing statute, there no longer is any need to provide refunds if this target is exceeded. Id. at 24,078, 24,084. We submit the Commission is in error inreading the 45 percent referred to in OBRA as a floor rather than a ceiling.

In adopting its view, the Commission failed to consult the single best explanation of the unclear language of OBRA, namely, the statement of Senator Simpson on the floor of Congress clari-fying the intention of Congress in enacting the provision.

133 Cong. Rec. Sl8,685 (daily ed. Dec. 21, 1987). Senator Simpson explained that the "contorted" and "convoluted language of Section 5601 is attributable to the arcane Congressional Budget Office scoring" process and the "crediting" of user fees to certain Congressional committees. Id. at 18,685-87.

Stripped of unnecessary complexities, Section 5601 of OBRA "authorizes the NRC to collect increased user fees in an amount

~ to 45 percent of the agency's budget for 2 fiscal y~ars

-- fiscal years 1988 and 1989." Id. at 18,685 (emphasis added).

'NEWMAN & HOLTZINGER, P. C .

The legislative history of Section 5601 therefore clearly suggests that the Commission is mistaken in treating the 45 percent referred to in the legislation as a floor rather than as a ceiling. Regardless of whether the Commission is correct or incorrect in its belief that it legally can recover the "generic" costs of regulating classes of licensees, it must take action to ensure that the aggregate of its fee collec-tions does not exceed 45 percent of the NRC's 1988 and 1989 fiscal year budgets. The obvious method of ensuring this result is to retain the refund mechanism found in Part 171.21 of the Commission's annual fee regulations.

Sincerely, NEWMAN & HOLTZINGER, P.C .

I

• ADVANCED NUCLEAR FUELS CORPORATION 2101 HORN RAPIDS ROAD, PO BOX 130, RICHLAND, WA 99352-0130 CORPORATE LICENSING (509) 375-8100 TELEX: 15-2878

• aa Jl 26 P2 :05 U. S. Nuclear Regulatory Commission Attention: Docketing Services Branch Secretary of the Commission Washington, DC 20555

Dear Sirs:

Subject:

Revision of Fee Schedules Advanced Nuclear Fuels Corporation (ANF) has reviewed the proposed rule on revised fee schedules which was published in the Federal Register in Vol.

53, No. 123 on Monday, June 27, 1988. (p. 24077) Our comments are given below.

ANF is a fabricator and supplier of low enriched uranium reactor fuels and related services. ANF is concerned primarily with those sections of Part 170 which cover fees for license renewal, routine inspections for health and safety and safeguards, and the reviews of topical reports needed to support the operation of reactors containing ANF designed fuel. ANF has been a strong proponent of ceilings for the maximum fee chargeable for each of these NRC activities. We believe that the fee ceilings provide benefits to both the industry and the NRC. Those benefits which have been enunciated by the NRC in the past are restated herein.

To meet revised Congressional requirements for the NRC costs to be recovered by fees, ANF recommends that the Commission exercise the second option noted in Section III of the Supplementary Information. We understand that this option would involve changes only to 10 CFR 171 (p. 24079) and 10 CFR 170 would remain unchanged except for changes in the professional staff rates. The advantage of this option is that because of the time remaining in FY 1988, the Part 170 changes will generate little increase in revenue and ~e- .

i neons i stent with FY 1989 revenue actions. If this second option noted i n Section I II is not ex ere i sed and changes to Part 170 are proposed, ANF has three points for consideration:

I. The concept of fee ceilings should be retained;

2. The actual ceilings should be adjusted individually to allow for an equitable distribution of the required NRC revenue increase; and

~UL 28

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W.S. Nuclear Regulatory Commission July 21, 1988 Page 2

3. The professional charge-out rate should be used to escalate the fee ceilings to maintain the equitable distribution in subsequent years as the NRC costs change.

The existence of fee ceilings provides benefits to both industry and the NRC. The primary benefit for industry is that the ceilings provide a manageable and predictable basis for ANF' s handling of NRC costs in pricing ANF' s products and services. The benefits to the NRC are the same as were cited when the ceilings were initially established. For topical reports, these benefits include a fair recovery of NRC costs while not potent i a11 y discouraging submittals because of the potential for an open-ended fee .

The rule, as currently proposed, would eliminate fee ceilings. This elimination would place all of ANF's NRC reviews and routine inspections on a full cost basis. According to Table II of Section IV of the Supplemental Information, this change in Part 170 is equivalent to a recovery rate of 59%

of NRC budget instead of the legislated 45% recovery. Also, the increase in rate can be much greater than the 36% increase in NRC revenues that has been legislated (the increase from 33% to 45%). For example, based on information obtained from the NRC for topical report reviews, the last NRC bi 11 i ng for topical report reviews included 90 reviews. Of these 90 reviews, 20 exceeded the $20K ceiling . Based on other NRC evaluations, this 20%-25% of reviews exceeding the limits is typical. For this billing, the NRC recovered $644K of its $1.392M costs. If the ceilings were removed, the NRC revenue for these reviews would be increased by 116% instead of being increased by the 36%

consistent with the total revenue increase needed. Thus, the cost to the licensees for topical report reviews would be inequitably increased.

An alternative that would more equitably distribute the increase would be to adjust the ceiling by the ratio of the revised to previous professional staff hourly rate. The percentage increases in rate are 29% (80/62) and 36%

(80/50) for topical report reviews and inspections, respectively. These increases are comparable with the total revenue increase needed by the NRC, and would therefore more equitably distribute the necessary additional charges. Also, by adjusting the ceiling annually based on the professional staff hourly rate ratio, subsequent escalations in NRC costs will be included while maintaining the equitable distribution. If the above ratio method does not prove to provide an equitable basis for cost recovery, we suggest that a one time adjustment be made to individual fee ceilings on the basis of actual costs experience.

In summary, ANF favors the option of modifying Part 171 and not changing Part 170. If this option is not exercised, ANF believes that the currently proposed rule will not equitably distribute the needed NRC revenue increase.

ANF strongly supports the need for fee ceilings, and believes that a fair way to apportion the NRC revenue increase while maintaining the benefits of ceilings would be to adjust the ceilings based on the professional staff

W.S. Nuclear Regulatory Commission Jul y 21 , 1988 Page 3 hourly rates. This method could then be used in subsequent years to adjust for escalations in the NRC costs. If the hourly rate ratio method does not provide an equitable basis for the initial adjustment of fee ceilings, actual cost experience should be used.

We appreciate this opportunity to comment.

Sincerely, c~C~

Corporate Licensing CWM:jrs

DOCKET NUMBER PRO?0SEu .1JLE HEALTH PHYSICS ASSOCIATES, INC.

RADIATION PROTECTION CONSULTANTS BOX 796 LENHARTSVILLE, PA 19534 (215) 756-4153 *as JI. 26 All :01 Secretary US NUclear Regulatory Commission Washington, DC 20555 Attn: Docketing and Service Branch re: Proposed Revision of Fees, 10 CFR Parts 170 and 171 June 27, 1988 Federal Register Vol 53, No. 123, Pages 24077 throuqh 24093

Dear Gentlemen:

Heal th Physics Associates Nould like to register its opposition to the proposed eliaination of the maximum inspection frequency in Part 170.32. The NRC has not offered any real justification for eliminating this protection to the licensee and we are concerned with the potential for abuse.

As presently written, Part 170.32 lists a maximum inspection frequency for routine inspections for each license category. Non-routine inspections have no maximum. This arrangement satisfies the needs of both the Commission which can inspect any number of times as a result of a complaint, and the licensee who knows that if he provides a good radiation control program, he will be inspected a m1n1111u11 number of times. In a discussion on a recent listing of records retention periods, the Commission answered co11aentors that were asking for permanent records retention by stating that the periodic inspections, averaging about once &very five years, for most licensees was sufficient to determine if records were being properly maintained. We assumed from this that the Commission was not anticipating increasing its inspection frequency. While the proposed change to Part 170.32 does not indicate an actual increase in inspection frequency, we are concerned that this 11ay beco11e a defacto situation for certain licensees.

Should a licensee have a good radiation protection program, the licensee represents a relatively easy inspection, both technically and psychologically for an inspector who knows that the inspection will probably be a non-confrontational one. There could easily be a tendency to inspect such licensees more frequently. Since we are a small business, grossing less than $100,000 per year, such a practice would have a severe financial impact on us due to both the actual inspection fees and the lost productivity of our primary employee who would have to accollpany the inspector.

Mr. LaMastra performs management audits, akin to your inspections, at various facilities around the country for several clients. He too must efficiently arrange travel. We are, therefore, sure that with some ingenuity, the NRC can efficiently work out inspection schedules JUL 2 7 1988 Acknowledged by card . * * . .... .. .,., _, *

(

UCLEAR REGULATon COMMISSl()ff Ocm G & VIC£ SECTION OPFICE OF THE SECRElARY OF Tl-ff C Ml .:ON

2 so that maxi111ua inspection frequencies and travel optimization are combined.

Since the Commission has not provided any real justification for this change, and the potential for abuse would have an impact on licensees, potentially penalizing those 1i11ith good programs, 1i11e strongly request that the NRC retain the maxi111ua inspection frequencies in 170.32.

We dso 1i11ould like to hke this opportunity to object to a fee for a specific license category (3N). It appears that the justification used by the NRC in regard to specific fees is that those licenses requiring more review ti*e should be assessed larger fees.

We are a licensee that uses our own byproduct aaterial to test detection systeas, calibrate survey aeters for ourselves and clients, and install devices containing byproduct material. For this we are required to pay $930 for the initial license, $930 for the renewal and

$120 for an amendment. A manufacturer who distributes several speci fie devices to P.irt 30 licensees (3B), has a $460 initial and renewal license fee which covers both the manufacture .ind distribution. A manufacturer who distributes byproduct material that requires device review, to persons exempt from specific Part 30 licenses (3H) has a $580 initial and a $230 renewal fee. We cannot imagine that it takes twice as much tiae to review our application as opposed to a 3B or 3H application.

Or compare the 3N fees with a license authorizing industrial radiography at field sites (30), carrying a $700 initial and renewal fee. Having prepared both types of applications, there certainly is no difference in preparation time.

If we were installing our own devices .it our own facilities, testing our own detection systems in several states and calibrating our own survey instruments, our license fee would be $230 for the initial application and $120 for a renewal. For a large gauge user, the program and resulting application is at least as extensive as our 3N program, and we assume, 1i11ould take the same amount of time to review.

However, there is a substantial disparity in fees.

We would appreciate it if the Commission would review this apparent disparity and provide some equity to the fee schedule.

Thank you for your consideration of these comments.

Sincerely, Q£~

A. Lal-lastra President

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July 19, 1988 US Nuclear Regulatory Commission Washington DC 20555

- Attention: Docketing and Service Branch Gentlemen:

I write to comment on the proposed revision to 10CFR170, especially 170.32, Schedule of fees for health and safety, and safeguards inspections for material licenses. My main concern for the proposed change involves the potential for significant increased charges to licensees due to a possible increase in routine inspection frequencies coupled with the newly proposed charge per routine inspection. Since the licensee has no control over the frequency of routine inspections, he has no fiscal control over this expense proposed. In fact, the Commission creates a potential conflict of interest with this change in that increased frequencies of routine inspections will yield increased revenues to the Commission.

In my opinion, the current regulations better address this issue with a per inspection charge for non-routine inspections, but a fixed frequency charge for routine inspections. This provides the licensee with a predictable inspection expense unless his program becomes problematic to the point where non-routine inspections are warranted. I urge you to retain the current provision.

Yours truly,

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• aa Jl 26 AlO :54 WllP July 18, 1988 SECRETARY U. S . N. R. C.

Washington , D. C. 20555 Attn : License Fee Management Branch RE : Proposed Revisions to 10 CFR 170 and 171 on License and Annual Fees Gentlemen ;

As stated in your notice dated June 27 , 1988 , Section 170 . 32 - your intention to char ge for unscheduled inspections We believe the intent of this section is legitimate , but in the long term_-m9 y provide a viable option to produce cash when necessary. Small businesses such as ours can barely pay for annual inspection as it is . Should we be required to pay for unscheduled audits , this will create a severe burden on our ability to compete , especially if one licensee should receive more inspections than another . We feel more stringent corrective action for violations is more appropriate rather than more frequent inspection .

Sincerely ,

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,m J1 25 P3 :55 JUL 2 5 1988 Mr. Samuel J. Chilk Secretary of the Commission ATTN: Docketing and Service Branch U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Dear Mr. Chilk:

- The purpose of this letter is to provide comments on the Nuclear Regulatory Commission (NRC) proposal to revise its fee schedules i n 10 CFR Parts 170 and 171, as set out in a Federal Register notice dated June 27, 1988, at page 24077. Our particular concerns relate to the manner in which you propose to treat standard plant licensing fees.

The Department of Energy is engaged in cooperative programs with the industry to help remove obstacles to the realization of a sound nuclear energy base. As a part of these efforts, the industry is developing advanced standard plant designs and, at the appropriate time, submitting these designs for Design Certification. Because of the advanced nature of these plants which will incorporate new approaches to ensuring safety, it is possible that extensive safety reviews of first-of-a-kind features will be necessary to ensure that all relevant safety concerns have been fully aired. Since the development and certification of these advanced plant designs is in the national interest, it does not appear desirable for the Federal Government to increase the economic disincentive to their development through a licensing fee policy of the type proposed in the Federal Register notice.

As we understand your proposed treatment of standardized plants, although there is some relief given through deferral of fees, the basic approach sti 11 ca 11 s for 11 ful l cost" recovery of the expenditures made by NRC in reviewing the standard plant designs.

In our view, the most desirable approach would be for the NRC to grant a waiver of the fees for design reviews and certification of advanced standard plant designs. Once the certification for a given standard plant is obtained, fees could then be assessed when a utility orders a plant. In the event there are no orders or action on the application is terminated, there would be no fee charged.

JUL 2 7 1988 nowtedgf:d by card . *****..*** **-----

&& AOetE,._R REGULA.TOlY COMMISSICIII DOOCEtlNG & SERVICE SECTIOM OFFICE OF THE SECRET ARY OF THE C l'f ISSION

2 The Department believes that action by the Commission to grant such waivers woul d contribute substantially to the success of a program vital to the national interest. Therefore, we urge revision of your proposed fee schedule along these lines.

Sincerely, De l bert F. Bunch Pri nc i pal Deputy Assis tap t Sec,reta ry for Nuclear Energy

DOCKET NUMBER PR (J PR0P0SE.u ,{JLE @ F,t, 'rO?~cKET Et:

-BS- TRANSNUCLEAR, INC. usNHC Jtt88' zim.. 259 ro :24 Secretary U.S. Nuclear Regulatory Commission Washington, DC 20555 Attention: Docketing and Service Branch

Subject:

Comments on Proposed Revisions to 10CFR Parts 170 and 171 (53FR 24077)

Gentlemen:

Transnuclear, Inc. is a small business involved in all activities associated with the transportation and storage of radioactive materials. We design, develop, analyze, fabricate, test, operate and maintain packagings for all types of radioactive materials including spent nuclear fuel.

Transnuclear has a vital interest in the fees charged for reviews of applications submitted in accordance with 10CFR Parts 71 and 72.

Under Part 71, we hold Certificates of Compliance 9015 and 9016 for the TN - 8 , TN - 8 L , and TN - 9 spent f u e 1 c ask s . The s e Ce rt i f i c at e s have been revised numerous times to allow additional types of material to be shipped and to provide for modifications to the cask design. Our TN-GEMINI system has been assigned Docket No. 71-9213 for review of our application scheduled to be submitted later this year. Under Part 72, we have a Topical Report for a spent fuel storage cask under review by the NRC staff (Project M-42).

We ask that our comments be considered carefully as the proposed fees would have a significant economic impact on the company and would adversely affect our competitive position. Our interest in the fee schedule is well documented; we have submitted comments by letter dated June 28, 1977 on proposed rule changes at 42FR84 and by letter dated April 2, 1980 on proposed rule changes at 45FR20899. Many of our concerns expressed in these letters are still applicable.

Our specific comments and suggestions on the proposed revision published at 53FR24077 are discussed in the following paragraphs.

Option 2 Transnuclear recommends strongly that the Commission adopt the second option as defined on page 24079 of the Federal Register.

This option will result in the primary beneficiaries of the NRC TWO SKYLINE DRIVE* HAWTHORNE, NEW YORK 10532-2120 TELEPHONE: 914-347-2345

• FAX: 914-347-2346

• TELEX: 681-8082 JUL , 'i ll;d8 I

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-8§- TRANSNUCLEAR, INC.

regulatory process paying for the efforts expended. Many of the activities for which fees are paid in accordance with 10CFR170.31 are conducted in support of the commercial nuclear power industry.

Therefore, the reactor owners will ultimately pay higher prices for products and services as the vendors recover increased costs if higher fees are imposed.

Furthermore, those companies which have paid fees under the present schedule will have a significant competitive advantage over those who are developing new products to be licensed in the future.

Maintaining the present 10CFR170 with no changes by recovering the Congressionally mandated percentage of NRC's budget through revision of 10CFR171 eliminates these inequities and should not result in higher overall costs to the reactor owners and operators.

Part 170 If the second option is not adopted as recommended above, Transnuclear, Inc. has comments on many of the proposed revisions to 10CFR170.

Topical Reports The proposed removal of the $20,000 ceiling fee for Topical Reports in 170.31(12) should not be implemented. The Commission has twice proposed and rejected open ended fees on Topical Reports.

When fees were first assessed on Topical Reports in 1978, the Commission set the upper limit " ... because it believes that the submission of topical report requests should not be discouraged by the possibility of an open-ended fee" (43FR7216).

In 1982 the Commission proposed to eliminate the upper limit of

$20,000 chargeable for the review of a topical report (47FR52456).

However, when the final rule was adopted in 1984 the ceiling was not removed (49FR21295). The comment at that time: "The Commission believes that the upper limit of $20,000 for a topical report review is fair and equitable and should not discourage the submission of such reports."

There is no reason at this time to question the validity of the Commission's earlier conclusions. The possibility of an open-ended fee will inhibit the development of new products and service procedures by smaller companies. As many new ideas are directed toward safety enhancement, their development should not be discouraged. We recommend retention of the $20,000 ceiling on the fee for a review of a topical report. However, we can support a modest increase in the ceiling to reflect increased staff costs since the original amount was established.

If the ceiling is removed, the rules should not be changed for reports submitted prior to the effective date of the revised

-8§- TRANSNUCLEAR, INC.

10CFR170. This also has a precedent as applications filed prior to the effective date of the 1978 rule were not charged fees for those categories where no fees were previously being charged (43FR7214).

Transportation of Radioactive Material The elimination of ceilings on review of applications for Certificates of Compliance for transport packages has also been proposed (47FR52458) and rejected (49FR21296). Transnuclear recommends that ceilings be retained for the existing categories of packages.

Projects now underway at Transnuclear and other companies have been justified as economically viable based on the certainty of the license fee. Being unable to predict the total cost of a packaging because of an open-ended review fee could result in projects being cancelled or never initiated.

We can support a periodic rev1s1on in the ceiling levels to reflect current costs as was done in 1984. However, we would not expect the percentage increase in the revised ceilings to be greater than that in the hourly cost for professional staff.

Small Entity The Commission in Section VIII of the proposed rule (53FR24085) requested comments by any small entity which determines that it is likely to bear a disproportionate economic impact as a result of the revised fee schedule.

(a) Transnuclear, Inc. is a small business with less than 100 employees and annual revenues of only a miniscule percentage of many of our competitors. Removal of the $20,000 ceiling on topical report reviews would result in a significant increase in Transnuclear's costs whereas an increase to the expected maximum level of $443,200 shown in Appendix B (53FR24093) would not be noticed on the Profit and Loss Statements of our Fortune 500 competitors.

The review of the Topical Report for Transnuclear' s TN-24 dry storage cask (Project M-42) is not scheduled to be completed until the end of CY1988. Imposition of an open-ended fee for completion of the review would impose an unfair competitive burden on Transnuclear as many of our large and small competitors for the supply of dry storage systems have only paid the current fee of $20,000 for the approval of their topical reports.

Similarly, removal of the ceilings for review of transport packages would have a much greater impact on Transnuclear's operating results than it would on a large company.

• TRANSNUCLEAR, INC.

(b) The proposed revisions could be modified as recommended earlier in these comments by adopting the second option or by retaining the fee ceiling for reviews of topical reports and transport packages.

(c) As discussed under (a) above, the detriment that would be avoided is the unfair competitive burden placed on Transnuclear and other small entities and the stifling of innovations which come from small companies.

(d) The proposed regulation, if modified as recommended by Transnuclear, would maintain equilibrium in the market for dry storage systems and transport packages. Transnuclear wishes to continue to compete on an equal basis in these markets and can do so if the Commission maintains the current fee structure which enables us to predict accurately the impact of fees on total project costs.

Summary Transnuclear recommends:

1. Adoption of the second option with no change to 10CFR170; or

2. Maintaining ceilings on review fees for topical reports and transport packages.

We will be pleased to discuss our comments with the NRC staff at any time. Please contact us if clarification of any of our comments is required.

Very truly yours, QA/rV-_,,,

Bill R. Teer Senior Vice President BRT:nb 1540N DOCKET NUMBER PROPOSED RULE Bethlehem Steel Corpi!J°~!i-ion BETHLEHEM, PA 18016 113 Jl. 25 A11 :16 OFF!C* ~ __ \,, t 1A '

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BRANCl-1 July PJ; 1988 Secretary US Nuclear Regulatory Commission Washington, DC 20555 Attn: Docketing and Service Branch Gentlemen:

This is in regard to the proposed revision of fees, 10CFR Parts 170 and 171 published in the June 27, 1988 Federal Register, Vol 53, number 123, pages 24077 through 24093.

Bethlehem Steel Corporation wishes to strongly object to the proposed elimination of the maximum inspection frequency in part 170.32. We do not see adequate justification for eliminating this protection to the licensee and are concerned with the potential for abuse. As presently written a category 3P license would be routinely inspected once every 5 years.

Should a licensee have a good radiation protection program, that licensee represents a relatively problem free inspection, both technically and psychologically, for an inspector. There could easily be a tendency to inspect such licensees more frequently to meet certain quotas. This approach is presently practiced by state and federal regulatory agencies that do not assess inspection fees. Such a practice involves lost productivity on the part of employees who accompany the inspector and for those employees working in the areas being inspected. If inspection fees are added, it increases the "penalty" paid for having a "good" program.

We are confident that the USNRC can efficiently work out inspection schedules so that maximum inspection frequencies and travel optimization are combined.

Sincerely yours, n.1G>W T. E. Kobrick TEK:lsb

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~ 077 July 19, 1988 Secretary of the U. S.

Nuclear Regulatory Commission Washington DC 20555 Attn: Docketing and Service Branch Subject : Proposed revisions to 10CFR 170 and 171 on License and annual fees

Dear Sir:

We wish to point out an inequ ity in the current license fee schedule.

Under category 7. "Human use of byproduct, source or special nuclear material", there is no di stinction made between a user with one or two sealed sources for di agnostic use and a hosp i tal that has many sources for teletherapy use .

In 1983 , when the NRC began issuing l icenses to doctors for I- 125 Lixi Imaging Scopes, they were placed in Category 7(C) whi ch was or ig i nally intended for hospita l s with teletherapy devices . The Lixi Imaging Scope, like the Bone Mineral Ana l yzer, is a diagnostic instrument which uses a sealed I-1 25 source . It cannot be used as a teletherapy device. Its primary user is the individual doctor and not a hospital.

The NRC placed the Lixi Imaging Scope and the Bone Mineral Analyzer in category 7(C) because i t had no other choice at t hat time. The NRC simpli fied the li censing procedure for this device in 1985, see attached "Policy and Guidance Directive FC 85-1 ". Recordkeeping by the doctors has been si mplified and so has the NRC's inspection of these users.

We request that the NRC create a new category for diagnostic devices. Some Agreement States such as Texas have al ready done this . The license and inspection fees should also be reduced accordingly. Currently the NRC charges a doct or or clinic $580 for a license and $460 for an inspection which is the same as a hospital. At the same time, an i ndustrial user is charged only $230 for a license and $210 for an in spection for use of a Lixi Imaging Scope, refer to category 3(E). We believe that doctors should be charged the same as an industrial user since there is no additional work required by the NRC to wri te or i nspect the medical l icense over the industrial license.

JUL 2 6 1988 card *. * .....- -

Lixi, Inc. Telephone (312) 620-4646 Telex 68710TT DKROB 1438 Brook Drive Downers Grove. Illinois 6051 5

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We were advised by various NRC personnel that this change was under consideration three years ago. We request that the NRC take this opportunity to correct this deficiency in its license categories.

Sincerely, LIX,~ . ,

~(..,_)~

Robert J. Savini Executive Vice President RJS/dh Enclosure

UNITED STATES

• NUCLEAR .REGULATORY COMMISSION WASHINGTON, D. C. 20555 JAN 2 5 1985 MEMORANDUM FOR: Regional Administrators Branch . Chiefs Division of Fuel Cycle and Material Safety FROM: Richard E. Cunningham, Director Division of .Eu&I *Eycte" IDrd Mater f1tt Sa£et,y

SUBJECT:

POLICY AND GUIDANCE DIRECTIVE FC 85-1; LICENSING THE LIXISCOPE AND BONE MINERAL ANALYZER

1. Introduction Policy and Guidance Directive FC 83-24, dated November 10, 1983, provided

, . guidance on licensing human use of lixiscopes and bone mineral analyzers.

However, additional questions have been raised about licensing policy for these devices. In particular, questions are being raised about instructors' and customers* qualifications, because in many cases these devices are being distributed to sales representatives and customers who had no previous training or experience in radiation safety prior to their interest in the 1ixiscope-s and bone mineral analyzers. This revised directive provides more comprehensive guidance, particularly with respect to: (a) user quali-fications, (b) instructor qualifications, and (c) human use at temporary job sites.

2. Training Criteria for Human Use of Lixiscopes* and Bone Mineral Analyzers by Physicians '

Currentiy, lixiscopes and bone mineral analyzers containing iodine-125 or americium-241 may be distributed to: (a) medical institutions holding broad licenses, (b) group medical licensees, and (c) certain specifically

... licensed medical institutions and physicians. By definition, broad medical

. licensees and Group VI licensees* have users who possess adequate training and experience to use these devices. Other specifically licensed institiJ-.

tions and physicians must demonstrate that proposed physician-users have adequate training.

Proposed physician-users are considered to have adequate ;training and experience if they: *

a. Are specifically named as an authorized user on a Nuclear Regulatory Commission (NRC) or Agreement State license to use byproduct material

.specified in one or more of Groups. I through VI, inclusive~ of Section 35.100,or

Multiple .Addressees JAN 2 5 1985

• b. Are certified by the American Board of Nuclear Medicine, or the American Board of Radiology in Radiology, Therapeutic Radiology, or Diagnostic Radiology with Special Competence in Nuclear Radiology (certification as a British 11 Fellow of the Faculty of Radiology" or 11 fellow of the Royal College of Radiology" or Canadian certification from the Royal College 0

of Physicians and Surgeons in therapeutic radiology is also acceptable),

or

c.

• Are specifically named (or have in the past been specifically named) as a user on an NRC or Agreement State license *authorizing use of the lixiscope or bone mineral analyzer, or

d. As a minimum, have received a total of eight hours of training as described in Enclosure *1 of this directiye.

The training described in Enclosure l must have been received within five years of the date of the application, except as follows:

• if *more than * *

• five years have elapsed since the completion of training in the *topics in

• Groups A and B of Enclosure 1, then the proposed physician-user must be able to demonstrate his continuing involvement *with* radioactive materials or radiation-producing equipment (e.g., physician routinely performing x-ray examinations in his office or hospital). * . * .

Supplement A of Form NRC-313M may be used to document this training , Note that the training need not have been received all at one time, at one institutio~, or from one instructor. The following individuals are consid-ered by the NRC to be qualified to provide the formal training as described in Enclosure 1: a health physicist certified by the American Board of Health 0 .

Physics, an institution lic~nsed by the State to provide education in the medical arts, an NRC or Agreement State licensee whose license authorizes medical use of the lixiscope and/or bone mineral analyzer, and/or other instructors who may be found qualified on a case-by-ca~e basis (see Item #5 below). Additionally, all applicants shall provid~ written evidence, s11ch as a signed certificate of completion, that they have successfully completed the training described in E~closure l. * * *

3. Training Criteria for Human Use of ~ixiscopes by Dentists or Podiatrists The NRC staff has been advised that dentists and podiatrists may be interested in using the lixiscope on their patients and has considered whether these professionals meet the definit*ion

• of a "physician" found in 10 CFR 35.3(b). Enclosure 2 discusses this matter in greater detail and concludes that an exemption can be granted provided that *the proposed podiatri~t-user or dentist-user: *

a. Is licensed to practice dentistry or podiatry by a State or territory of the United States, District of Columbia, or Commonwealth of Puerto Rico, and

Multiple Adressees . JAN 2 5 i9SS C b. As a m1n1mum, has received a total of eight hours of training as described in Enclosure 1 and Item #2.d. above.

In these cases, Condition 12 of the license should be worded as follows:

"Notwithstanding the provisions of Sections 35.3{b) and 35.13 of 10 CFR Part 35 and pursuant .to Section 30. ll{a) o_f 10 CFR Part- 30, the lixiscope may be used by {podiatrists's or dentist's name) on those portions of the human body upon which (he or she) is authorized by.(his or her) state license to practice (podiatry or dentistry}." This exemption need not be coordinated with Headquarters staff. However, Office of the Executive Legal Director .

staff recommends that, in each of these cases, the official license file

• show that the exemption was granted in accordance with the policy and guidance in this directive and document that the criteria of Sections 3a. and b. above are satisfied.

4. Training Criteria for*Non-Human Use of Lixiscopes The llxiscope may al so be 1 icensed for various non-human uses: Lixi, Inc *.,

the manufacturer, has designed a short course and manual for safe non-human use of the lixiscope. Lixi, Inc., Stan A. Huber Consultants, Inc. (the consulting company who helped develop the course), and Lixiscope of America, ***

Inc., a marketing organization, have all described in their license applications their instructors' qualifications and their programs for teaching the course. The course covers basically the same topics ;n Enclosure 1 as related to non-human use. For students with* no previous training or experience in radiation safety, all topics are covered and a minimum .of 5-6 hours is spent on the course. Course certificates issued by these three licensees may be accepted as evidence of adequate training for non-human use. However, the reviewer may wish to verify on a case-by-case basis that the instruction was actually provided by a paid employee of the licensee, and that the appropriate number of hours was devoted to training. j Other ljcensees in either Agreement or non-Agreement States, particularly sales representatives, might also offer lixiscope training courses.

If these courses .have been evaluated and approved by NRC or an Agreement State as part of a license .application, they may be accepted as evidence of adequate training. *

• In evaluating proposed courses, the NRC staff should pay careful attention to the course topics, length of the course, and instructors' qualifications  !

• f (see Item #5 below). * . * . - .

• Applications may be received for proposed users who have* not completed a formal lixiscope course, but who have other training and experience.

The training and experience should be reviewed on a case-by-case basis, considering its relevance, length of time, and instructors' qualifications (see Item /15 below). The applicant must demonstrate that his training covers the manufacturer's 11 device specific" instructions .and literature.

A shortened version of the formal courses discussed above is one acceptable way to meet this requirement.

• JPiN 2 5 1985 Multiple Addr~ssees 5. Instructors' Qualifications for Lixiscope Training A person who merely obtains the minimum training required for a li~ense*

• to use the lixiscope is not qualified to be a lixiscope instructor. _

Although this position has been stated verbally and in writing by the 0

NRC staff on many occasions, confusion persists on this point. This is in part because NRC does not license instructors as such, but rather licenses possession of radioactive material. Also, the manufacturer's marketing strategy has involved sales representati~es who had no previous

• knowledge of radiation safety prior to involvement with lixiscopes.

Because of the wide variety of training and experience among people in the radiation safety professions, exact criteria cannot be established for instructors. However, the following information is provided to assist in evaluation, particularly where the instructor's training appears to be minimal: *

a. Lixi, Inc., has established the following minimum qualifications for its instructors: high school graduate, completion of the users' training course, and completion of 20 hours2.314815e-4 days <br />0.00556 hours <br />3.306878e-5 weeks <br />7.61e-6 months <br /> additional training covering regulations, radiation safety, and use of the device.

b. Consistent with Item #2.d above and general medical licensing pol icy, physicians,. podiatrists, and dentists who are licensed to use the lixiscope are considered qualified to instruct other

• physicians, podiatrists, and dentists.

6. Human Use of the Lixiscope and Bone .Mineral Analyzers at Temporary Job Sites In the past, NRC has not routinely authorized,.human use of radioactive material at non-medical temporary job sites; for example, shopping centers, sporting events, and conventions. Any applications involving such use should be referred to Headquarters. (Human use at medical facilities -*

such as hospitals, clinics, doctors' offices, and nursing homes may be licensed without coordination with Headquarters.) *

7. Physical Presence of Users for Non-Human Use of Lixiscopes In order to avoid misunderstandings as to whether lixiscopes are used by .

trained people, lice*nses for non-human use .should specify that a:'! authorized user must be physically present ~uring use.

8. Personnel Monitoring and Survey Meters for Routin; ~se*of. Lixiscopes Individual reviewers may make a case-by-case determination as to whether personnel monitoring or survey meters are required for -routine use of lixiscopes. For intermittent use, such as in research and development or

• medical uset we have not usually required personnel monitors or survey meters. However, for continuous use by an operator, who constantly places his hand near the radiation beam, personnel monitoring may be appropriate; for example, an inspector on an assembly line. Where personnel monitoring . V is required, extremity monitors are preferable to whole body monitors.

Multiple Addressees JAN 2 5 1985 He have not normally required survey meters for routine use of lixiscopes. ,

However, the new 10 CFR Part 35 will probably require that a survey meter be available for users of sealed diagnostic sources. Therefore, when the new Part 35 becomes effec*tive, it should be reviewed for applicable requirements *

. 9. Exchange of Lixiscope Sources The lixiscope is designed so that the entire source*assembly can be removed by the user, returned to the manufacturer for a new source, and reinstalled .

by the user. Users need not remove the source from*its shielded container, and they should not normally be authorized to perfonn this operation.

I Any request from a user, service company, distributor, or manufacturer to remove sources from their shielded positions for service or exchange should be carefully reviewed. Some iodine-125 sources contain iodine-126 as an impurity. The sources must be held for decay prior to distribution in .order to avoid excessive radiation levels on the surface of the lixiscope.

This directive supersedes Policy and Guidance Directive FC 83-24, dated November 10, 1983. If you have further questions, please contact Vandy Miller

( FTS: 427 -4002) * *

• ./

,iV.-/4.-G.""-, -;;>~---

Richard E. Cunningham, .Director Division of Fuel Cycle and Material Safety, NMSS

Enclosures:

l. Training Criteria for Medical Users of Lixiscope and Bone Mineral r Analyzer Devices

2. Memo from VLMiller to RECunningham dtd 11/7/83

]) ,

• aa JUN 21 P3 :15 NUCLEAR REGULATORY COMMISSION 10 CF R Parts 170 and lU Revision of Fee Schedules AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

SUMMARY

The Nuclear Regulatory Commission is proposing to amend its regulations by revising its fee schedules in 10 CFR Parts 170 and 171. This revision is necessary both to update the current fees and to implement the most recent fee a me n d men ts legislation wo uid : ( 1) enacted by remove the 10 CFR the Congress. The proposed Part 170 fee cei1ings for l

application reviews and inspections for power reactors; fuel cycle facilities, transportation cask packages and shipping containers; (2) revise the hourly rate for NRC *professional time spent providing various regulatory services and provide for an annual adjustment; ( 3) revise upward the ceiling on annual fees assessed pursuant to 10 CFR Part 171; (4) include, when appropriate, reimbursements from the Department of Energy Nuclear

• Waste Fund; (5) charge for each routine and nonroutine inspection conducted by the NRC, (6) remove the app

• ation fee and defer payment of costs for standardized reactor design reviews and certifications until a standardized design is referenced, and (7) remove amendment application filing fees for power reactors and reactor related (topical) reports. he proposed changes listed above will result in those applicants and licensees requiring the rJ~~

greatest expenditure of NRC resources paying the greatest fees. All applicants and licensees currently subject to fee collections would be affected by the proposed rule in 10 CFR Parts 170 and 171.

DATES: The comment period expires July 25; 1988.

Comments received after this date wi11 be considered if it is practical to do so, but the Commission is able to assure consideration only for comments received on or before this date. Because of the need to implement the legislation promptly, requests for extension of time will not be granted.

ADDRESSES: Submit written comments to Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555, ATTN: Docketing and' Service Branch.

Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852 between 7:30 a.m. and 4:15 p.m. {Telephone (301) - 492-1966)

Copies of comments received may be examined at the NRC Public Document Room, 1717 H Street, NW, Washington, DC.

FOR FURTHER INFORMATION CONTACT: Lee Hiller, Assistant Controller, U.S. Nuclear Regulatory Commission, w*ashington, DC 20555, telephone (301) 492-7351.

SUPPLEMENTARY INFORMATION:

t

• I. Background II. Analysis of legislation III. Proposed action iV. Section-by-Section Analysis V. Finding of No Significant Environmental Impact: Availability VI. Paperwork Reduction Act Statement VII. Regulatory Analysis VIII. Regulatory Flexibility Certification IX. Backftt Analysis X. List of Subjects I. Bac k g ro u n d Section 5601 of the Omnibus Budget Reconciliation Act of 1987, signed into law on December 22, 1987 (Pub. L. 100-203), amended section 7601 of the Consolidated Omnibus Budget Reconciliation Act of 1985 (COBRA) (Pub.

l L.99-272), which requires the Nucl~ar Regulatory Commission (NRC) to collect annual charges from its licensees. The amendment, in pertinent part, requires the Commission to collect under 10 CFR Parts 170 and 171, as we11 as under other provisions of law, not less than ~5 percent of its costs for each of Fiscal Years 1988 and 1989.

Part 170 implements Title V of the Independent Offices Appropriation Act of 1952 (31 U.S.C. 9701). The fees charged under Part 170 recover the costs to the NRC of providing individually identifiab1e services to applicants for and holders of NRC licenses and approvals. The fee schedules under Part 170 were last revised on May 21, 1984 (49 FR 21293), based on cost and manpower data from FY 81.

Part 171 implements COBRA by charging an annual fee to NRC power reactor licensees (51 FR 33224; September 18, 1986). NRC's Part 171 fee schedule was recently upheld by the courts. Florida Power and Light vs.

United States No. 86-1512 (D. C. Cir. May 13, 1988). The annual fee recovers NRC costs incurred in providing generic regulatory servfces to these licensees. Section 7601, prior to its amendment, limited NRC recovery of its costs under Parts 170 and 171, and other provisions of law to 33 percent of its budget. As amended, section 7601 of COBRA, in pertinent part, now provides that:

11 The Nuclear Regulatory Commission shall assess and collect annual charges from its licensees on a fiscal year basis, exce*pt that--

(A) the maximum amount of the aggregate charges assessed pursuant to this paragraph in any fiscal year may not exceed an amount that, when added to other amounts collected by the Commission for such fiscal year under other provisions of law, is estimated to be equal to 33 percent of the costs incurred by the Commission with respect to such fiscal year, except that for fiscal years 1988 and 1989, such percentage shall be increased an additional 6 percent of such costs plus all other assessments made by NRC pursuant to House Joint Resolution 395, 100th Congress, 1st Session, as enacted; but in no event shall such percentage be less than a total of 45 percent of such costs in each such fiscal year. 11 The requirement under section 7601 that such charges be reasonably related to the regulatory service provided by the Commission and fairly reflect the cost to the Commission of providing this service is unaffected by the recent amendments.

II. Analysis of Legislation Section 5601 of the Omnibus Buaget Reconciliation Act of 1987 (Pub. L.

100-203, Dec. 22, 1987), read literally, makes the following points:

,J

1. The previous limitation under COBRA of 33 percent on collections by the NRC for regulatory services is raised to at least 39 percent (33% + 6%).

2. Added to the 39 percent are all -other assessments made* by the NRC pursuant to House Joint Resolution 395, as enacted (P. L.

100-202, Dec. 22, 1987).

3. However, in any event the NRC must collect no less than 45 percent of its costs in each of fiscal years 1988 and 1989.

The first point is clear and builds on Parts 170 and 171, as currently applied by the NRC to its applicants and licensees. However, the second 11 point is am bia uous because of its reference to

~

other assessments. .11 Two

- categories of IJlOneys received by the NRC are addressed in Resolution 395.

The first category includes 11 moneys received by the Commission for the cooperative nuclear safety research program, services rendered to foreign governments and international organizations, and the material and info~mation access authorization programs including criminal history checks under section 149 of the Atomic Energy Act, as amended. 11 The second category includes 11 reven ues from licensing fees, inspection services, and other services and collections 11 estimated at one-half the NRC's FY 1988 appropriation of S392,800,000.

11 Usually, the term assessment 11 refers to a tax, fee or other charge on something or for some service. The Commission believes that the moneys co11ected as a result of contractual arrangements entered pursuant to the cooperative nuclear safety research program should not be construed as 11 assessments 11 , as that term is normally -used. Similarly, payment for services rendered to foreign governments and international organizations 4t should not be considerea "assessments 11 due to the cooperative nature of these endeavors. Thus, of the items included in the first category, only moneys collected under the material and information access authorization programs could possibly be considered assessments. Those amounts are estimated to be $3 million for FY 1988, with no significant increase expected in FY 1989. However, it is apparent that under the terms of H.J.

Resolution 395, neither these collections nor collections for coo.perative research program and services to foreign governments were to be considered 9 fees. These moneys are expressly excluded from the user fee collections that are to be applied under H.J. Resolution 395 as an offset to the full appropriation for the NRC. Thus, the Commission believes that it was not the intent of the Congress to inc1ude those co11ections, ex pres sly referenced as exclu dab le in H. J. Resolution 395, in the calculation of moneys to be collected pursuant to Section 5601 for the purpose of offsetting one,-half of its fiscal appropriation. Accordingly, these moneys, approximately $7 million total, will not be included within the 45 percent target on NRC collections.

11 With regard to the phrase in no event shall such percentage (total charges collected) be less than a total of 45 percent of such costs in each

such fiscal year. 11 Read alone, this phrase could be read to mean that the NRC must collect at least 45 percent of its budget and may collect significantly more than that amount. However, when read in the context of all of section 7601, the Commission believes that _the intent of Congress was to raise the overall percentage of fees collected a minimum of 6 percent but, if other collections ( Part 170, etc.) did not result in collecting 45 percent of

- the NRC budget, then the annual charge should be raised so that a total of no less than 45 percent of NRC costs is recovered. Although the 33 percent level was a ceiling under section 7601 prior to amendment of the section, the Com mission notes that the statute,* as indicated above, requires collection of no less than 45 percent for fiscal years 1988 and 1989.

• The 45 percent does not represent a ceiling. The best reading of the statute is that Congress intended collections to be not less than 45 percent of the NRC budget.

Accordingly, actual collections will approximate but be at least 45 percent of the Commission's budget. Consistent with the view that collections may exceed 45 percent, the current § 171.21, which provides for .refunds if the statutory ceiling is exceeded, is no longer necessary. Therefore, we propose to delete this section.

The issue remains as to whether the requirement to increase charges so as to collect 45 percent of the NRC budget should be applied to all of FY 1988. The enacted legislation addresses recovery of NRC costs for both fiscal years 1988 and 1989. The Commission concludes that it is the intent of Congress that the Com mission recover 45 percent of its costs for both years, which leads to the result that the revised annual charge (Part 171)

will be applicable to a11 of FY 1988. Consistent with past practices, the changes to Part 170 (increased fees) will app1y from the effective date of the final rule.

III. Proposed Action The Commission proposes to amend 10 CF R Parts 170 and 171 in a way that will accomplish recovery of approximately, but not less than 45 percent of its costs for fiscal years 1988 and 1989, respectively. This objective will be met by:

1. Changing the hourly rate under Part 170 to reflect current fiscal costs and providing for an annual adjustments;

2. Removing the ceilings on .certain collections made pursuant to Part 170;

3. Charging for each routine and nonroutine inspection conducted;

4. Raising, when necessary, the annual fee assessed pursuant to Part 171. Additionally the Part 171 fees to licensees will be based upon the principal that licensees which require the greatest expenditure of NRC resources, shall pay the greatest fee.

5. Including moneys recovered from the Nuclear Waste Fund, as managed by the Department of Energy pursuant to the Nuclear Waste Policy Act, as amended, for costs incurred by the NRC

. associated with licensing a high-level waste repository.

6. Removing the application fee and deferring payment of costs for standardized reactor design review and certification for up to 10 years.

7. Removing amendment application fees for power reactors and reactor related (topical) reports.

The Commissfon is proposing to remove many of the current ceilings on the collection of fees. It should be noted that the ceilings under the current rule were established by the Commission at the request of the regulated industry as a means of assigning predictability as to what the final costs of a regulatory service would be. Since the effective date of the rule in 1984 and as a direct result of these ceilings, we estimate that ov_er the years the NRC has not collected $23 million in fees for regulatory services provided to some applicants/licensees.

Additionally, the Com mission strongly sup ports the concept that those requiring the greatest expenditure of NRC resources should pay the greatest fees. This is the rationale for the Commission 1 s proposal to remove some fee ceilings. The lifting of ceilings will not result in unnecessary NRC

resources being devoted to a given task. The NRC has an increasingly limited budget and therefore cannot afford to use its limited resources unwisely if it is to successfully perform its mission. In order to provide our applicants and licensees an estimate of what NRC fees for performing services might be, we are providing in Appendices A and B a non-binding schedule of estimated fees which may be used for planning purposes in the absence of cefiings.

The Commission also seeks comment on a second option. Under this option, the Commission at this time would not adopt changes to Parts 170 or Part 171 other than to raise the annual fee so that the amount of fees collected by the Commission under 10 CFR Part 171.15 when added to fees that would be collected under Part 170 as currently codified, would approximate, but not be less than 45 percent of the NRC budget.

The agency work papers which sup port the proposed changes to 10 CF R Parts 170 and 171 are available in the Public Document Room, 1717 H Street NW., Washington, DC 20555.

The NRC will hold a public meeting on July 7 at 3:00 pm in Room 2F17 White Flint North, 11555 Rockville Pike, Rockville, Maryland to discuss the proposed changes and answer any questions.

IV. Section-*by-Section Analysis

To accomplish these objectives, under Option 1, the Com mission is proposing to revise certain sections* of 10 CFR 170 and 171. The following section-by-section analysis of those sections affected

• provides additional explanatory information. All references are to Tjtle 10, Chapter I, Code of Federal Regulations.

Part 170 Section 170. 12 Payment of fees.

Paragraphs (c), (d), (e), and (f) are changed to remove the $150 application fee for reactor license amendments and other approvals.

Within paragraph (e), Approval fees, the current reference to facility standard reference design approvals is changed to remove the application fee and to permit deferral of review and certification fees until the design is referenced, payable thereafter in 20 percent increments as the design is referenced. How ever, regardless of whether the design is referenced, the full costs will be recovered by the NRC from the holder of the design approval within 5 years from the date of a preliminary design af>proval (PDA)/final design approval (FDA). Upon request, the five-year period may be extended to 10 years from the date of the design certification .. In the event the standardized design approval application is denied, withdrawn, suspended, or action on the application is postponed, fees will be collected when the review, to that point, is completed and the five (5) installment payment procedure will not apply.

Section 170. 20 Average cost per professional staff-hour.

This section is modified to reflect an agency-wide professional staff-hour rate based on current fiscal costs to the Agency. The section is also modified to reflect that the hourly rate will be adjusted each fiscal year, with notice of the new rate published in the Federal Register.

Accordingly, the proposed professional staff rate for the NRC for FY 1988 is S80 per hour, or $138.8 thousand per FTE (professional staff year). In each subsequent year, the hourly rate will be adjusted to reflect current cost per direct staff FTE. An analysis of the costs which generated this rate is provided in the Part 171 Section-by-Section analysis. The resultant hourly rate will be published in the Federal Register prior to the next f is cal y e a r as a fi n al r ule .

Section 170.21 Schedule of fees for production and utilization facilities, review of standard reference design approvals, special projects, and inspections.

Within the schedule of fees, all services (other than most application filing fees) will be changed from the current specified cost to "Full cost."

The schedule for Standard Reference Design Review is modified to reflect the amendment of §170.12 addressed above.

With the removal of ceilings for certain services, the costs for those reviews for which a ceiling previously established has been reached will not

be billed if prior to the effective date of this rule the review of the application is completed. For administrative reasons, where such review has not yet been completed, NRC will not seek to recover those costs which it incurred after current ceiling

• was reached and before a revised rule is enacted and becomes effective as a resu1t of this rulemaking. Costs incurred after the effective date of a final rule resulting from this rulemaking will be billed. The professional staff-hours expended up to the effective date of this rule will be at the professional rates established for the June 20, 1984 rule. Any professional hours expended after the effective date of this rule will be assessed at the F V 1988 rates reflected in this proposed rule. (The same applies to the removal of ceilings under the proposed revisions of §§ 170.31 and 170.32 below.) The footnotes. to this sch.edule also are modified to bring them into conformity with the proposed amendments to this schedule.

Section 170.31 Schedule of fees for materials licenses and other regulatory services.

Like § 170.21, this section is modified to reflect the removal of .ceilings on certain categories of fees and to charge full costs for those services.

Fees for each ensuing year will be published in the Federal Register, as in the case of § 170.20. Footnotes to the schedule that are affected by this action are revised to be consistent with this revision.

Section 170.32 Schedule of fees for health, safety, and safeguards inspections for materials licenses.

Fee ceilings for selected services are removed and the remaining fixed fees are retained since the ratio of NRC costs to fees collected is approximately equivalent to the percentage of the budget to be collected into the General Treasury. The schedule of fees for each ensuing year will be published as a final rule in the Federal Register for this schedule.

Footnote 3 is revised. Currently if the frequency of inspection, for example, for a category is 2 years and an inspection is next conducted 1 year and 11 months after the previous inspection, no fee is assessed. Often times inspections of different licensees are scheduled because of their close proximity. Such scheduling represents a more efficient use of resources.

Accordingly, § 170.32 and footnote 3 are being revised to indicate that the fee will be assessed for each inspection conducted by the NRC. Other footnotes are revised as well to make them consistent with the revised schedule.

Part 171 In light of the above, the Commission is proposing to revise certain sections of 10 CFR Part 171. The following section-by-section analysis of

those sections affected provides additional explanatory information. All references are to Title 10, Chapter I, Code of Federal Regulations.

Section 171. 5 Definitions.

The following definitions are being added *

.e The term "Budgeted obligations 11 is defined to be the projected obligations of the NRC that likely will result in payments by the NRC during the same or a future fiscal year to provide regulatory services to licensees.

Budgeted obligations include, but are not limited to amounts of orders to be placed, contracts to be awarded, and serv1ces to be provided to licensees.

Fees billed to licensees are based on budgeted obligations because the NRC 1 s annual budget is prepared on an obligation basis.

9 The term. "Overhead costs 11 is defined to include three components: (1)

Government benefits for each employee such as leave and holidays, retirement and disability costs, health and life insurance costs, and social security costs; (2) Travel costs; (3) Direct overhead, e.g., super_vision, program support staff, etc.; and (4) Indirect costs, e.g., funding and staff for administrative support activities. Factors have been developed for these overhead costs which are applied to hourly rates developed for employees providing the regulatory services within the categories and activities applicable to specified types or classes of reactors. The Commission views these costs as being reasonably related to the regulatory

services provided to the licensees and, therefore, within the meaning of section 7601, COBRA.

. Section 171.13 Notice.

Under the current rule, one fee is applicable to all licensed reactors.

-

• Under the proposed revision, each reactor will be billed individually, based en those NRC activities from which it benefits as a type or within a class of reactors. Accordingly, annual fees are expected to be different for each of the various types or classes of reactor operating licenses. Each bill will reflect those specific activities applicable to each operating license as required by the revised § 171.15 discussed below. Prior to issuance of the bill, the annual fee for each applicable licensee will be published in the Federal Register.

Section 171.15 Annual Fee: Power reactor operating licenses.

Paragraph (c) is modified to reflect a target percentage of 45 p_ercent rather than a maximum percentage of 33 percent. The formula used to calculate the annual fee is modified to reflect the inclusion of moneys expected to be collected from the Nuclear High Level Waste ( HLW) Fund administered by the Department of Energy and the estimated collections under Part 170 for each fiscal year. Funds will be collected from the Nuclear HL\~ Fund beginning in FY 1989. The sum of these funds will be

subtracted from the amount reflecting 45 percent of the NRC budget prior to determining the annual fee for each licensed power reactor.

In FY 1988, the Commission must recover 45 percent of its approved bud get of $392,800,000. Applying the fee rates proposed herein, the NRC

- estimates that it wi11 collect $36.5 million pursuant to Part 170 this fiscal year, but no money from the Nuclear Waste fund in FY 1988. In accordance with the formula provided in § 171.15, for FY 1988: $177 million minus approximately S36.5 million for Part 170 + $0 million for Nuclear Waste Fund) equals approximately $140.5 million to be recovered through annual fees.

Since at least 45 percent is to be collected, the amount charged under Part 171 will also be dependent on the number of exemptions granted pursuant to

§ 171.11 and the number of new power reactor licenses issued during the fiscal year.

The following areas are those NRC programs which comprise the annual fee.

They have been expressed in terms of the NRC 1 s budget program elements and associated activities.

PROGRAM ELEMENT ACTIVITY

--Reactor Performance Evaluation -Generic Communications

-Engineering/Safety Assessments

-Reactor Maintenance and -Maintenance and Surveillance Surveillance

-License Performance Evaluation -Quality Assurance

-License and Examine Reactor -Program Development and Assessment/

Operators Regional Oversight

-Generic Activities

-Region-Based Inspections -Lab and Technical Support

-Regional Assessment

-Specialized Inspections -Vendor Inspections

-Project Management -Project Management (only partly 171)

-Regulatory Improvements -Technical Specifications

-Safety Goal Implementation

-Inspection/Licensing Integration and Research and Standards Coordination

-Licensee Reactor Accident -Concept of Operations and Management Evaluation Implementing Technical Procedures

-Regional Assistance Colffllittees

-Safeguards Licensing and -Regulatory Effectiveness Reviews Inspection

-Reactor Vessel and Piping -Pressure Vessel Safety Integrity -Piping Integrity

-Inspection Procedures and Techniques

-Aging of Reactor Components -Aging Research

-Chemical Effects

PROGRAM ELEMENT ACTIVITY

-Reactor Equipment Qualification -Equipment Qualification Methods

-Seismic and Fire Protection -Earth Sciences Research -Component Response to Earthquakes

-Va1idation of Seismic Analysis

-Setsmic Design Margin Methods

-Plant Performance -MIST

-2D/30

-ROSA IV and Other Foreign Experiments

-Continuing Experimental Capability

-Once-Through Steam Generator

{B&W)

-Basic Studies

-Development and Assessment of Codes

-Code Uncertainty

-Technical Support Center

-Human Performance -Human Factors Research '

-Human Error Data Collection and Analysis

-Reliability of Reactor Systems -Performance Indicators

-Plant and Systems Risk and Reliability

-Dependent Failure Analysis

-External Event Safety Margins

-Radionuclide Source Terms -Fission Product Behavior and Chemical Form

-Natural Circulation in the Reactor Coolant System

-Reactor Containment -Structural Tests

-Core Melt Progression and Hydrogen Generation

-Core/Concrete Interactions

-Direct Containment Heating

-Steam Explosions

-Code Models Validation and Analyses

-Hydrogen Transport and Combustion

PROGRAM ELEMENT ACTIVITY

-Reactor Accident Risk Analysis -Severe Accident Management

-Risk model development

-Risk Uncertainty Methodology

--Risk Rebaseline Analyses

-Risk-Based Management Methodology

-Severe Accident Program -Severe Accident Policy Implementation Implementation

-Regulatory Application of New Source Terms

-Radiation Protection and -Reduce Uncertainty in Hea 1th Effects Health Risk Estimates

-Health Physics Technology Improvements

-Dose reduction

-Generic and Unresolved Safety -Engineering Issues Issues -Reactor System Issues

-Human Factors Issues

-Severe Accident Issues

-Management of Safety Issue Resolution

-Developing and Improving Regulations -Develop or Modify Regulations

-Independent Review and Control of Rulemaking

-Regulatory Analysis

-Safety Goal Implementation

-Decorrmissioning *

-RES Grants

-RES Small Business Innovative Research

-Performance Indicators -Manage Performance.

Indicator Program

-Diagnostic Evaluations -Conduct Diagnostic Evaluations of Licensee Performance

PROGRAM ACTIVITY ACTIVITY

-Incident Investigation -Management Incident Investigation Program

-NRC Incident Response -Emergency Response Data System

-Develop and Maintain Response Center Equipment, Procedures

- and Analytical Tools

-Program Coordination and Development

-Operations Officers

-Technical Training Center -PWR/BWR Technology Training

-Operational Data Analysis -Analysis of Operational Experience

-Analysis of Operational Trends and Patterns

-Operational Data Collection -Collect, Screen and Feed Back and Dissemination Operational Data

-Operational and Reliability Data Systems

Each of these activities is related to providing services to operating nuclear power plants. NRC 1 s efforts in each of these areas contribute to the licensees' continued safe operation of their facilities and therefore are of benefit to them. A broader description of these programs is contained in the NRC 1 s annual budget submission to Cong-ress. See NUREG-1100, Volume 11 4, Budget Estimates Fiscal Year 1989 11 ( February 1988). While these activities also provide benefits to the public, because they benefit our 11 licensees, these are not independent public benefits" as that term is used in user fee case law. Accordingly, it is legally permissible to charge licensees for these services.

Paragraph (c) is being revised to reflect that the basis for each annual fee will be the budgeted obligations for activities (regulatory services) applicable to each nuclear power reactor as one of a type or class of reactors, e.g., boiling water reactors or pressurized water reactors. Using this approach, the Commission will, each year, establish the budgeted obligations (including overhead costs) for each activity on a per reactor unit basis, and establish the total costs for those regulatory services provi_ded to each reactor licensed to operate. NRC labor costs attributable to these activities will be determined using the hourly rates established on the basis of an analysis of direct and in direct ( overhead as defined herein). staffing costs attributable to the regulatory services provided. Each revision of these hourly rates will be available for public inspection at the time the annual fee is published. Each activity applicable to a licensed power reactor will be indicated on the bill issued to the licensed reactor for the next fiscal

year's annual fee. Prior to the issuance of the bill, the annual fee for each applicable licensee will be published in the Federal Register.

Paragraphs (d) and (e) of the current rule are being deleted as superfluous to the proposed approach to ann-ual fees.

Supplemental Analysis on Annual Fee Determination Under§ 171.15 Under current legislation the NRC is to collect, and deposit to the General Fund of the Treasury, an amount to approximate but not be less than 45 percent of its budget. In fiscal year 1988 the President's budget for the NRC is $392.8 million. Thus, in FY 1988 the NRC should collect at least $177 million. In FY 1988, it is estimated that approximately $36.5 million will be collected from specific licensees under Part 170, but no money collected from the Department of Energy High-Level ~Jaste Fund. Thus, the remaining funds, approximately $140.5 million ($177 million less $36.5 million), will have to be collected under Part 171. A multiplier will ~e used such that the amount to be collected will be equal to Part 170 collections, plus High-Level Waste Fund collections, plus Part 171 potential collections multiplied by a factor II M, 11 which in future years, will probably be less than one.

For FY 1988 Total amount to Part 170 collections+ High-Level-Waste Fund be collected = Collections+ (M x P~rt 171 potential co 11 ecti ons) -

$177 million= $36.5 million+ $0 millfon + (M x $140.5 million)

M = 1.0 The following analysis supports a potential Part 171 fee schedule which could total about $140.5 million. In identifying the universe of plants/licensees for each program the following categories of program beneficiaries were identified:

1. All commercial nuclear power reactors (with 0L's) - llO plants

2. All commercial nuclear power reactors East of the Rockies - 98 plants

3. A11 General Electric (GE) nuclear power reactors ( BWR 1 s) - 36 plants

4. All Combustion Engineering (CE) nuclear power reactors - 14 plants

5. All Westinghouse nuclear power reactors - 49 plants

6. All Babcock & Wilcox (B&W) nuclear power reactors - 10 plants In these instances the costs to NRC for these programs should be paid for on a prorata basis, by all plants included in the above specified categories. By adding the program support costs to the NRC staff cost for each category of effort and prorating these costs over the population (plants) of that category, a fee is established which requires those licensees who require the greatest expenditure of NRC resources to pay the largest annual fee. The following documentation identifies how the NRC determined the cost of a direct staff Full-Time Equivalent employee (FTE) and how it allocated, based upon the fiscal year 1988 budget, staff and program support costs to each category of plant/licensee.

For fis.cal year 1988, the budgeted obligations by direct program are:

(1) Salaries and Benefits, $182.9 million; (2) Administrative Support, $62.02 million; (3) Travel, $10.45 million; and (4) Program Support, $137.43 1J1illion.

In fiscal year 1988 1,674.2 FTEs are considered to be in direct support of NRC programs applicable to fees (See Table I about 369.6 FTEs are utilized in efforts associated with Part 171, with the remainder being utilized in efforts associated with Part 170, or to be recovered from the DOE Nuclear Waste Fund or other efforts). Of the total 3,250 FTEs; 1,575.8 FTEs (3250-1674.2) will be considered administrative, overhead (supervisory and support) or exempted (due to their program function). Of the 1575 .. 8 FTEs,

a total of 292 FTEs and the resulting $22.98 million in support are exempted from the fee base due to the nature of their functions (i.e., enforcement activities and other NRC functions currently exempted by Commission policy).

In determining the cost for each direct labor FTE (an FTE whose position/function is such that it can be identified to a specific licensee or e class of licensees) whose function, in the NRC's judgment, is necessary to the regulatory process, the following rationale is used:

1. All such direct FTEs are identified by office.

2. NRC plans, budgets, and controls on the following four major categories ( see Table II):

a. Salaries and Benefits

b. Administrative Support

c. Travel

d. Program Support

3. Program Support, the use of contract or other services for which the NRC pays for support from outside the Commission, is charged to various categories as used.

4. All other costs (i.e., Salaries and Benefits, Travel, and

Administrative Support) represent 11 in-house 11 costs and are to be collected by allocating them uniformly over the total number of direct FTEs.

Although this method differs from previous methods for recovery of costs, it 11 is equally accurate because it allocates all in-hou se 11 resource requirements over the universe of direct FT Es ( those staff members who would be billed to licensees based upon work performed either directly for a specific licensee or a specific group of licensees).

Using this approach, and excluding budgeted Program Support obligations, the remaining $232.4 million allocated uniformly to the direct FTEs (1,674.2) results in a calculation of $138.8 thousand per FTE for FY 1988.

TABLE I Allocation of Direct FTEs by Office Office Number of Direct FTE s 1 1

NRR 1045.0 Research 162.7 NMSS 294.3 AEOD 92.0 ASLAP 5.2 ASLBP 17 .o ACRS 25.0 OGC 33.0 1674.2 1 Regional employees are counted in the office of the program each supports.

TABLE II FY 1988 Budget By Major Category

($ In Millions)

Salaries and Benefits 182.90 Administrative Support - 62. 02 Travel 10.45 Total Non Program Support Obligations 255.37 Program Support 137.43 Total Budget 392.80 The Direct FTE Productive Hourly Rate ($80/hour) is calculated by dividing the annual non program support costs ($255.4 million) less the amount applicable to exempted functions ($22.98 million) by the product of the direct FTE (1,674.3 FTE) and the number of productive hours in one year (1,744 hours0.00861 days <br />0.207 hours <br />0.00123 weeks <br />2.83092e-4 months <br />) as indicated in 0MB Circular A-76, 11 Performance of Commercial Activities. 11 Since Part 171 is designed to collect fees for NRC efforts of a generic or multi-license nature concerning licensees with power reactor operating licenses, the most feasible method to accomplish this is to develop fees based on NRC budgeted obligations for each NRC generic or multi-licensee p_rogram concerning plants with operating licenses. Additionally, since many of the research programs expend effort for specific types of reactors (i.e.,

Westinghouse, CE, B&W, and GE) or plants in a specific geographic location (e.g., reactors east of the Rockies); these parameters were also used in refining NRC cost by reactor/operating license. Table III presents a summary of Part 171 fees, by reactor category, using the current fiscal year 1988 budget for Program Support costs and FTE's.

As can be seen from Table III, a reactor which is a B&W reactor, east of the Rockies would have a fee imposed which is higher than the fee imposed on a Westinghouse reactor west of the Rockies (i.e., $1,154 thousand + $342 thousand + $38 thousand = $1,534 thousand versus $1,154 thousand + $42 thousand = $1,196 thousand,. T-his example also represents the normal range of fees to be charged under Part 171 of $1,196 thousand to 4t Sl,534 thousand. The attachment following this analysis provides a detailed presentation of the budgeted obligations by budget program element and activity.

I

TABLE II I Part 171 Fees By Reactor Category - Surrmary

($ In Thousands)

No. of Program Support Per Reactor Reactor Category Reactors $ FTE Total $ Fee A11 Reactors 110 $77,118 359 .* 2 $126,975 $1,154

- Research NRR AEOD Additional Charges 66,811 2,928 7,379 118.0 153.7 87.5 83,189 24,262 19,524 By Type

.i.

Reactors (East of the Rockies) 98 3,290 3.0 $ 3,706 $ 38 B&W 10 2,889 3.8 3,416 342 CE 14 1,855 1.4 2,049 146.

Westinghouse 49 1,855 1.4 2,049 42 GE 36 2,150 .8 2,261 63 Totals $89,137 369.6 $140 2456

- Table IV provides detailed analysis of the composition of Table III.

1 Special seismic studies that benefit eastern reactors Eastern seismisity studies are performed to determine that reactor construction meets seismic criteria. These are performed only on reactors east of the Rockies. Reactors west of the Rockies already have seismic criteria included in their "as built design".

Table IV Part 171 Fees by Category - Detail

{$ in thousands)

FY 1988 Program Support$ FTE I. Part 171 Work for All Reactors A. Part 171 Work by Research (Program/Activity)

1. Reactor Vessel and Piping Integrity $10,050 5.0

2. Aging of Reactor Components 7,280 12.0

3. Reactor Equipment Qualifications 1,100 1.5

4. Seismic and Fire Protection Research (less Earth Sciences $3,990/3.0 FTE 4,060 4.5

5. Plant Performance

a. Basic Studies 1,291 1.8

b. Development and Assessment of Codes (less GE plants only ($750) 2,740 3.6

6. Human Performance 2,630 3.6

7. Reliability of Reactor Systems 3,020 4.9

8. Radicinuclide Source Terms 1,304 2.0

9. Reactor Containment Safety (less GE only -

($1,150/.8 FTE) 15,523 9.7

10. Reactor Accident Risk Analysis (less Reviews of PRA's $1,100/3.0 FTE's) 7,118 10.0

11. Severe Accident Program Implementation 950 7.2

12. Radiation Protection and Health Effects 1,655 6.5

13. Generic and Unresolved Safety Issues (less Reactor Systems Issues - GE only - $250) 5,215 33.7

14. Developing and Improving Regulations 2,875 12.0 Total Part 171 Work by Research $66,811 118.0

FY 1988 Program Support$ FTE I. Part 171 Work for All Reactors (Continued)

B. Part 171 Work b~ NRR (Program/Activity)

1. Reactor Performance Evaluation -

a. Generic Co1T1Tiunications $ 300 7.8

b. Engineering/Safety Assessments 414 6.7 C* Reactor Maintenance and Surveillance 100 3.0

2. Licensee Performance Evaluation Quality Assurance Program 50 8.1

3. License and Examine Reactor Operations

a. Program Development and Assessment/

Regional Oversight 180 10.9

4. Region-Based Inspections

a. Lab and Technical Support 184 10.6

b. Regional Assessment 0 1. 7

5. Specialized Inspections Vendor Inspections 1,160 19.9

- 6.

7.

Project Management (Project Engineers)

(Licensing Assistants)

Regulatory Improvements 0

0 20.2 15.1

a. Technical Specifications 150 16.1

b. Safety Goal Implementation 0 .4

c. Inspection/Licensing Integration and Research and Standards Coordination 0 21. 7

8. Licensee Reactor Accident Management Evaluation

a. Concept of Operations and Implementing 1.0

b. Regional Assistance Committees 2.2

9. Safeguards Licensing and Inspection Regulatory Effectiveness Reviews 390 8.3 Total Part 171 $ 2,928 153.7

FY 1988 Program Support$ FTE I. Part 171 Work for All Reactors (Continued)

C. Part 171 Work by AEOD (Program Elements)

1. Performance Indicators $ 228 3.9

- 2.

3.

4.

Diagnostic Evaluations Incident Investigation NRC Incident Response 0

50 1,129 2.0 2.5 27.1

5. Technical Training Center 2,102 21.0

6. Operationai Data Analysis 2,115 25.0

7. Operational Data Collection and Dissemination 1,755 6.0 Total Part 171 Work by AEOD $ 7,379 87.5 D. Total NRC for All Reactors

1. Cost for AEOD Staff= 87.5 x 138.8 = $12,145 Program Support AEOD 7,379 Total AEOD Cost $ 19,524

2. Cost for NRR Staff= 153.7 x 138.8 = $ 21,334 Program Support NRR 2,928 Total NRR Cost $ 24,262

3. Cost for Research Staff= 118.0 x 138.8 = $16,378 Program Support Research 66,811 Total Research Cost $ 83,189

4. Total (All Reactors) Cost to NRC $126,975

FY 1988 Program Support$ Fit I I. Part 171 Work - Reactors East of the Rockies Seismic and Fire Protection Research - Earth Sciences $ 3,290 3.0 Cost of Research Staff= 3 X 138.8 = $ 416

- III.

Program Support 3,290 Total Cost (Reactors East of the Rockies) $ 3,706 Part 171 Work - B&W Reactors Plant Performance (Research)

a. MIST s 1,390 .5

b. 2D/3D (10 percent of effort) 220 *1

c. Continuing Experimental Capability 150 0

d. Once-Through Steam Generator (B&W) 229 1.7

e. Technical Integration Center 900 1.5 Total Part 171 Work - B&W Reactors $ 2,889 3.8 Cost of Research Staff= 3.8 x 138.8 = $ 527 Program Support 2 2889 Total Cost (B&W Reactors) $ 3,416 IV. Part 171 Work - CE Reactors Plant Performance

a. 2D/3D (45 percent of effort) $ 1,020 .7

b. ROSA IV and Other Foreign Experiments (50%) 250 .2

c. Code Uncertainty (50%) 585 .5 Total Part 171 Work - GE Reactors $ 1,855 1.4 Cost of Research Staff= 1.4 x 138.8 = $ 194 Program Support* 1 2855 Total Cost (CE Reactors) $2,049

FY 1988 Program Support$ FTE V. Part 171 Work - Westinghouse Reactors Plant Performance

a. 2D/3D (45 percent of effort) $ 1,020 .7

b. ROSA IV and Other Foreign Experiments 250 .2

c. Code Uncertainty 585 .5 Total Part 171 Work - Westinghouse Reactors$ 1,855 1.4 Cost of Research Staff= 1.4 x 138.8 = $ 194 Program Support 1,855 Total Cost (Westinghouse Reactors) $ 2,049 VI. Part 171 Work - GE Reactors

1. Plant Performance - Development of Assessment of Codes $ 750 0

2. Reactor Containment Safety - Code Models Validation and Analysis 1,150 .8

3. Generic and Unresolved Safety Issues - Reactor.

System Issues 250 0 e Total Part 171 Work - GE Reactors $ 2,150 .8 Cost of Research Staff= .8 x 138.8 = $ 111 Program Support 2,150 Total Cost (GE Reactors) $ 2,261

Due to the multi-recipient nature of these NRC efforts; the need to collect fees in a practicable manner; and 0MB Circular A-25, User Fees, requirements for advance or simultaneous billing; Part 171 user fees should be established and assessed based upon the budget for that year. This will allow for equitable fees, established and collected with the minimum resource expenditure; such ex pen ditu re affects overhead cost which must ultimately be recovered from all American tax payers or from the organizations regulated by the N RC.

Section 171.21 Refunds.

This section is being eliminated. Under current legislation, at least 45 percent should be collected. No refunds will be provided, although the fees will be calculated in such a manner as to not greatly exceed the 45 percent 11 floor 11 imposed by the legislation.

V. Environmental Impact: Categorical Exclusion The NRC has determined that this proposed rule is the type of action described in categorical exclusion 10 CFR 51.22(c) (1). Therefore, neither an environ mental impact statement nor an environ mental assessment has been prepared for this proposed rule.

VI. Paperwork Reduction Act Statement

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

VII. Regulatory Arralysis Section 7601 of COBRA required the NRC, by rule, to establish an annual charge for regulatory services provided to its applicants and licensees, that when added to other amounts collected, equaled up to 33 percent of Com mission costs in providing those services. Section 5601 of the Omnibus Budget Reconciliation Act of 1987 requires that the NRC, for the fiscal years 1988 and 1989, increase the moneys collected pursuant to section 7601 and other authority to at least 45 percent of the Com mission's costs.

In order to accompllsh this statutory requirement, the NRC is proposing to revise its fee schedules in 10 CF R Part 170 to remove the fee ceilings on certain categories, to revise its professional hourly rate to reflect inflationary and other increases since FY 1981, to revise the ceiling of 33 percent contained in 10 CF R Part 171 to a target of which approximates but will be at least 45 percent, and to include the collection of moneys from the High Level Waste Fund administered by the Department of Energy.

This proposed rule revision will not have significant impacts on state and local governments and geographical regions; on health, safety, and the environment; or, create substantial costs to licensees, the NRC, or other

Federal agencies. The foregoing discussion constitutes the regulatory analysis for this proposed rule.

VIII. Regulatory Flexibility Certification As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.

4t 605( b), the Com mission certifies that this rule, if adopted, will not have a significant economic impact upon a substantial number of small entities. The proposed rule affects about 10,000 specific licenses under 10 C FR Parts 30-35, 39, 40, 50, 60, 61, 70, 71, and -72. Approximately 9,000 of these licensees could be considered small entities, particularly in the area of materials licensing under Parts 30-35 and 39. The annual record keeping burden imposed by the proposed rule will not be increased for these licensees.

Any small entity subject to this regulation which determines that, because of its size, it is likely to bear a disproportionate adverse e~onomic impact should notify the Commission of this in a comment that indicates the following:

(a) The licensee's size and how the proposed regulation would result in a significant economic burden upon the licensee as compared to the economic burden on a larger licensee.

(b) How the proposed regulations could be modified to take into account the licensee 1 s differing needs or capabilities.

(c) The benefits that would accrue, or the detriments that would be avoided, if the proposed regulations were modified as suggested by the licensee.

(d) How the proposed regulation, as modified, would more closely equalize ',

the impact of NRC regulations or create more equal access to the benefits of Federal programs as opposed to providing special advantages to a ny i n di vi d ua1 o r g ro u p .

IX. Backfit Analysis The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed rule, and therefore, that a backfit analysis' is not required for this proposed rule, because these amendments are mandated by 31 U.S.C. 9701 and section 7601, Consolidated Omnibus Budget Reconciliation Act of 1985 (Pub. L.99-272, 100 Stat. 146), as amended by section 5601, Omnibus Budget Reconciliation Act of 1987 (Pub. L. 100-203, _Stat._).

X. List Of Subjects Part 170 - Byproduct material, Nuclear materials, Nuclear power plants and reactors, Penalty, Source material, Special nuclear material.

Part 171 - Annual charges, Nuclear power plants and reactors, Penalty.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is proposing to adopt the following amendments to 10 CFR Parts 170 and 171.

PART 170 - FEES FOR FACILITIES AND MATERIALS LICENSES AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT OF 1954, AS AMENDED

1. The authority citation for Part 170 continues to read as follows:

AUTHORITY: 31 U.S.C. 9701, 96 Stat. 1051; sec. 301, Pub. L.92-314, 86 Stat. 222 (42 U.S.C. 2201w); sec. 201, 88 Stat. 1242, as amended (42 u.s.c. 5841).

2. In § 170.12, paragraphs (b) through (g) are revised to read as follows:

§ 170.12 Payment of fees.

(b) License fees. Fees for applications for permits and licenses that are subject to fees based on the full cost of the reviews are payable upon notification by the Commission. Each applicant will be billed at six-month intervals for all accumulated costs for each application the applicant has on

file for review by the Com mission until the review is completed. Each bill will identify the applications and costs related to each. Fees for applications for materials licenses not subject to full costs must accompany the application when it is filed.

(c) Amendment fees and other required approvals. Fees for applications for license amendments, other required approvals and requests for dismantling, decommissioning and termination of licensed activities that are subject to full cost are payable upon notification by the Commission.

Each applicant will be billed at six-month intervals for all accumulated costs for each application the applicant has on file for review by the Commission, until the review is completed. Each bill will identify the applications and costs related to each. Amendment fees for materials licenses and approvals not subject to full cost reviews must accompany the application when it is filed.

(d) Renewal fees. Fees for applications for renewals that are subject to full cost of the review are payable upon notification by the Commission.

Each applicant will be billed at six-month intervals for all accumulate.d costs on each application that the applicant has on file for review by the Commission until the review is completed. Each bill will identify the applications and the costs related to each. Renewal fees for materials licenses and approvals not subject to full cost reviews must accompany the application when it is filed.

• (e) Approval fees. (1) Applications for transportation casks, packages, and shipping container approvals, spent fuel storage facility design approvals, and construction approvals for plutonium fuel processing and fabrication plants must be accompanied by an application fee of $150.

(2) There is no application fee for standardized design approvals.. The review fees for facility reference standardized design approvals and

- certifications will be paid by the holder of the design approval or certification in five (5) installments based on payment of 20 percent of the application and approval/certification fee (see footnote 4 § 170.21) as each of the first five units ut the approved/certified design is referenced' in an application(s) filed by a utility or utilities. If the design(s) is not referenced or if all costs are not recovered within 5 years after the preliminary design approval (PDA) or the final design approval (FDA), the vendor applicant wili pay the costs, or remainder of those costs, at that

- time. 1 he 5-year period is extended to 10 years from the date of the design certification.

(3) Fees for other applications that are subject to full cost reviev1s are payable upon notification by the Commission. Each subject applicant will be billed at six-month intervals until the review is completed. Each bill will identify the applications and the costs related to each. Fee5 for applications for materials approvals that are not subject to full cost must accompany the application when it i5 filed.

(f) Special project fees. Fees for applications ~or special projects such as topical reports, are based on full cost of the reviews and are payable u pan notification by the Com mission. Each applicant will be billed at six-month intervals until the review is completed. Each bill will identify the applications and the costs related to each.

(g) Inspection fees. Fees for all routine and non-routine inspections will be assessed on a per inspection basis, and will be billed quarterly.

Inspection fees are payable upon notification by the Commission. Inspection costs include preparation time, time on site and documentation time and any associated contractual service costs but exclude the time involved in the processing and issuance of a notice of violati,on or civil penalty.

3. Section 170.20 is revised to read as follows:

§ 170.20 - Average cost per professional staff-hour.

Fees for permits, licenses, amendments, renewals, special projects, Part 55 req ualification and replacement examinations and tests, other required approvals and inspections under*§§ 170.21, 170.31 and 170.32 will be calculated based upon the full costs for the review using a professional staff rate per hour equivalent to the sum of the average cost to th.e agency for a professional staff member, including salary and benefits, administrative

support and travel. The professional staff rate will be revised on a fiscal year basis using the most current fiscal data available and the revised hourly rate will be published in the Federal Register for each fiscal year.

The professional staff rate for the NRC for FY 88 is $80 per hour.

4. Section 170. 21 is revised to read as follows:

§ 170.21 Schedule of fees for production and utilization facilities, review of standard reference design approvals, special projects, and inspections.

Applicants for construction permits, manufacturing licenses, operating licenses, approvals of facility standard reference designs, req ualification and replacement examinations for reactor operators, and special projects and holders of construction permits, licenses, and other approvals shall pay fees for the following categories of services.

SCHEDULE OF FACILITY FEES

( See footnotes at end of table) 1 2 Facility categories and type of fees Fees '

A. Nuclear Power Reactors Application for Construction Permit *****************************.** $125,000 Construction Permit, Operating License **************************** Full Cost Amendment, Renewal, Dismantling-Decommissioning 'and Termination, Other Approvals **.****.**************************** Full Cost 3

Inspections *******.**.*.*..*..************************.********* Full Cost B. Standard Reference Design Review 4 Preliminary Design Approvals, Final Design Approvals, Certification ***.*.********.**..***.****...****.*.... Full Cost Amendment, Renewal; Other Approvals **...******************.**** Full Cost C. Test Facility/Research Reactor/Critical Facility Application for Construction Permit, **.*.***..**...*.*******...* $ 5,000 Construction Permit, Operating License ****....******...*********** Ful1 Cost Amendment, Renewal, Dismantling, Decommissioning and Termination, Other Approvals ********************.*.******.*.***. Full Cost Inspections 3 ********************.********.****.******************* Full Cost D. Manufacturing License

AppHcation *******************************************..*.*******.* $125,000 Preliminary Design Approval, Final Design Approval *******.*.****** Full Cost Amendment, Renewal, Other Approvals ***************************** Full Cost 3 .

Ins pecti on s ********.*. o ********** II, **** o ******************* It ****** Fu11 Cost E. Uranium Enrichment Plant Application for Construction Permit **..**************************** $125,000 Construction Permit, Operating License ..****.*.*.**..**..**....*** Full Cost Amendment, Renewal, Other Approvals .***..**.**.*.**.*.******** Full Cost Inspections 3 *.***********.********.***.*************.*************** Full Cost F. Advanced Reactors Application for Construction Permit **.***.******.*****.***********. $125,000

- Construction Permit, Operating License **************..**...*.****. Fu11 Cost Amendment, Renewal, Other Approvals *.*****...************.*.**** Fu11 Cost Inspections 3 *..*.*...*..*.**.*********.**..*****.*..*..*.********* Full Cost G. Other Production and Utilization Faciliti' Application for Construction Permit ***.**************.**.****.***** $125,000 Construction Permit, Operating License **.********..**..**********. Full Cost Amendment, Renewal, Other Approvals *************.*********.***** Full Cost Inspections 3 **..******************..******************.*********** Full Cost

H. Production or Utilization Facility Permanently Closed Down 3

Inspections *****.************************************************ Full Cost I. Part 55 Reviews Requalification and Replacement Examinations for Reactor Operators ............................................... Full Cost J. S pecia l Prejects App ro val s ........****....*******...*.************************.**** Fu11 Cost 1 Fees will not be charged for orders issued by the Com mission pursuant to §2.204 of this chapter nor for amendments resulting specifically from such Commission orders. Fees will be charged for approvals issued pursuant to a specific exemption provision of the Commission's regu_lations under Title 10 of the Code of Federal Regulations (e.g., §§ 50.12, 73.5),

and any other such sections now or hereafter in effect regardless of whether the approval is in the form of a license amendment, letter of approval, safety evaluation report, or other form. Fees for licenses in this schedule that are initially issued for less than full power are based on review through the issuance of a full power license ( generally full power is considered 100~.;

of the facility's full rated power). Thus, if a licensee received a low power

license or a temporary license for less than full power and subsequently receives full power authority ( by way of license amendment or otherwise),

the total costs for the license will be determined through that period when authority is granted for full power operation. If a situation arises in which the Commission determines that full operating power for a particular facility should be less than 100% of full rated power, the total costs for the .license will be at that decided lower operating power level and not at the 100%

ca pa city.

2 All charges will be based on expenditures for professional staff time and appropriate contractual support services. However, in no event will the charges be less than $150. For those applications currently on file, the professional staff hours expended for the review of the application up to the effective date of this rule will be determined at the professional rates established for the June 20, 1984 rule. For those applications currently on file for which review costs have reached an applicable fee ceiling established by the June 20, 1984 rule, but are still pending completion of the review, the costs incurred after the ceiling was reached up to the effective ~ate of this rule will not be billed :to the applicant. Any professional hours ex pended on or after the effective date of this rule will be assessed at the rate established by § 170.20. This rate will be reviewed and adjusted annually as necessary to take into consideration increased or decreased costs to the Commission. The rate for each fiscal year will be published in the Federal Register. In the event a review covers a combination of licensing actions in a one-step licensing process such as a combined construction

permit and operating 1icense review (interim, temporary, or other), the fees charged will be the tota1 of the costs for the 1icensing action.

3 Inspections covered by this schedu1e are both routine and nonroutine safety and safeguards inspections performed by NRC for the purpose of review or follow up of a licensed program. Inspections are performed throughout the fu1l term of the 1icense to ensure that the authorized activities are being conducted in accordance with the Atomic Energy Act of 1954, as amended, other legislation, Commission regu1ations or orders, and the terms and conditions of the license. Non-routine inspections that result from third-party allegations wi1l not be subject to fees.

4 Collection of the review costs for *a preliminary design approval (PDA) and final design approval (F.DA) are deferred, respectively, for a period of five years from the approva1; except that, if the design is referenced during ihat period, 20 percent of the total costs will be payable by the ho1der of design approval or certificate as each reference is made until the full costs are paid. If the design is certified, the deferral period is extended to 10 years from the certification, with the same proviso that 20 percent of the costs will be payable each time the design is referenced. In the event the full costs are not recovered by the end of the applicable deferral period, the holder of the design approval or certificate must pay the remainder of any costs not previously recovered by the NRC. Applications for amendments to PDA's, FDA's and certifications are subject to full costs and will be billed u pan completion of the review.

5. Section 170.31 is revised to read as follows:

§ 170.31 Schedule of fees for materials licenses and other regulatory services.

Applicants for materials licenses and- other regulatory services and holders of materials licenses shall pay fees for the following categories of services.

SCHEDULE OF FEES FOR ~iATERIALS LICENSES AND OTHER REGULATORY SERVICES

( See footnotes at end of tab le)

Category of materials licenses and type of fee 1 Fee 2

1. Special Nuclear Material 3 A. Licenses for possession and use of 200 grams or more of plutonium in unsealed form or 350 grams or more of contained U-235 in unsealed form or 200 grams or more of U-233 in unsealed form.

This includes applications to terminate licenses and to authorize decommissioning, decontamination, reclamation, or site restora-

tion activities as well as licenses authorizing possession only.

Application ....................................... $150 License, Renewal, Amendm-ent ***********.****** Full Cost B. Licenses for receipt and storage of spent fuel at an independent spent fuel storage installation (IS FSI):

Application . ..*...............*.....*........*.... $150 License, Renewal, Amendment ****************** Full Cost C. Licenses for possession and use of special nuclear material in sealed sources contained in devices used in industrial measuring

. 4 systems:

Application - New license *****.*******..********** $230 Renewal ............................ ~ ***.*..*.****** Sl20 Amend ment .******.....******.*********.************* $60 D. All other special nuclear material licenses, except licenses authorizing special nuclear material in unsealed form in com bi nation that

would constitute a critical quantity, as defined in § 150~11 of this chapter, for which the licensee shall pay the same rate as that for Category lA:

Application - New license ****************************** $350 Renewal ******************************************* $350 Amend ment **.********.*.******.*********.********.* $120 3

2 Source material :

A. Licenses for possession and use of source material in recovery operations such as milling, in-situ leaching, heap-leaching, refining uranium mill concentrates to uranium hexafluoride, ore buying stations, ion exchange facilities and in processing of ores containing source material for extraction of metals other than uranium or thorium, including licenses authorizing the possession of byproduct waste material

{tailing) from source material recovery operations, and licenses authorizing decommissioning, reclamation or restoration activities as well as licenses authorizing

the possession and maintenance of a facility in a standby mode.'

Application .. ..............*...*.....*...*.....*.. $150 License, Renewal, Amendment ****************** Full Cost B. Licenses for possession* and use of source material for shielding, except as provided for in§ 170.ll(a)(8):

Application - New license .************************ $60 Renewal *******.***.******.********...*.*********... S60 Amend me nt * ***************************************** $60 C. All other source material licenses:

App1ication - New license ************************* $350 Renewal ******************************************* $230-Amendment ****.************************************ $120

3. Byproduct material:

A. Licenses of broad scope for possession and

. use of byproduct material issued pursuant to

Parts 30 and ,33 of this chapter for processing or manufacturing of' items containing byproduct material for commercial distribution to licensees:

Application - New license *********************** $1,200 Renewal **.*.******.**********.******************** $700 Amendment *********..********..*.**********.******* $120 B. Other licenses for possession and use of byproduct material .issued pursuant to Part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution to licensees:

Application - New license ****.**.*******.*..*****. S460' Renewal ******************************************* $466 Amendment ***************************************** $12'0 C. Licenses issued pursuant to §§ 32.72, 32.73, and/or 32. 74 of Part 32 of this chapter authorizing the processing or manufacture and distribution of radiop harrnaceuticals, generators. reagent kits and/or sources and devices containing by product material:

Application - New license ******.***.************ $1,400 Renewal ******* '****.**.***************.********.** $1400 Amendment ...*****..*.***************************** $230 D. Licenses and approvals issued purs-uant to e §§ 32.72, 32.73, and/or 32.74 of Part 32 of this chapter authorizing distribution or radiop harmaceuticals, generators, reagent kits and/or sources or devices not involving processing of byproduct material:

Application - New license ********.*..************* $700 Renewal **..**.**.*.*..*.*..*..**...**************. $700 Amend ment ....***..*.*.***...*.***.*....*..***..... Sl20 E. Licenses for possession and use of byproduct material in sealed sources for irradiation of materials in which the source is not removed from its shield (self-shielded units):

Application - New license ************************** $230 Renewal ............................................ Sl 70 Amendment .*.*.*.*****..**...**.**.*.*. , .*.********* $120

F. Licenses for possession and use of less than 10,000 curies of byproduct material in sealed sources for irradiation of materials in which the source is ex posed for irradiation purposes:

Application - New license ******************.*****. $580 Renewal ******.***********.*********.************** $350 Amend ment **************************.*************. $230 G. Licenses for possession and use of 10,000 curies or more of byproduct material in sealed sources for irradiation of materials in which the source is ex posed for irradiation purposes:

Application - New license ...*************.****** $2,300

• Renewal ******************************************* $930 -

Amend ment ********************************** ******* $230 H. Licenses issued pursuant to Subpart A of Part 32 of this chapter to distribute items containing byproduct material that require device review to persons exempt from the licensing requirements of Part 30 of this

chapter, exc~pt specific licenses authorizing redistribution of ite,ms that have been authorized for distribution to persons exempt from the licensing requirements of Part 30 of this chapter:

• App1ication-New license *****.**********.********** $580 Renewal ****.**.**.*.********.*********.*.***.**.*** $230 Amendment *.************.****.*.******************* Sl20 I. Licenses issuea pursuant to Subpart A of Part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require device evaluation to persons exempt from the licensing requirements of Part 30 of this chapter, except for specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of Part 30 of this chapter:

Application-New license *.**.***.********.********* $290 Renewal *.**.************************.************* $230 Amend ment **.*.******.*************.**************.* $60

J. Licenses issued pursuant to Subpart B of Part 32 of this chapter to distribute items containing byproduct material that require sealed source and/or device review to persons generally licensed under Part 31 -

• of this chapter, except specific licenses authorizing redistribution of items that have been authorized for aistribution to persons generally licensed under Part 31 of this chapter:

Application - New'license .**********.*********.. Slt200 Renewal *************************.**********.***.** S700 I Amendment **************************************..* $230 K. Licenses issued pursuant to Subpart B of Part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require sealed source and/or device review to persons generally licensed under Part 31 of this chapter, except for specific licenses authorizing redistribution of items that have been authorized for

distribution to persons generally licensed under Part 31 of this chapter:

Application-New license ************************** $290 Renewal .*********************.*****.**.*********. $230 Amendment ..**.*..*..*...*****.*.**..**.****.*...** $60 L. Licenses of broad scope for possession and use of byproduct material issued pursuant to Parts 30 and 33 of this chapter for research and development that do not authorize commercial distribution:

• Application - New license ***.******.*.********** Sl,200 Renewal ****.************************************** $700 Amendment ****.**.**..*.***.*.************.******.. $120 M. Other licenses for possession and use of by product material ;ssued pursuant to Part 30 of this chapter for research and development that do not authorize commercial distribution:

Application - New license *****.**.**************** $700.

Renewal,*.****.*..*** , *****. Ill * * * * * * * * * * * * * * * * * * * * * * $460 Amendment ****' ****.*******.******.***********.***** $120 N. Licenses that authorize services for other licensees, except for leak testing a-nd waste disposal pickup services:

Application - New license .****.******************* $930 Renewal *********.*.*.******.**.*****.**.********** $930 Amen d men t .. ......................................... S12 0

0. Licenses for possession and use of byproduct material issued pursuant to Part 34 of this

• chapter for ind1Jstrial radiography operations:

Application - New license .......................... $700 Renew a1*............................................. $700 Amendment ********.*****.**.*******.*************** $230 P. All other specific byproduct material licenses, except those in Categories 4A through 90:

Application - New license ......................... $230 Renewal ***********.************..***************** $120 Amendment. ******************* °' ********************* $60

4. Waste disposal: 3 A. Licenses specifically authorizing the receipt of waste byproduct material, source material, or special nuclear material from other -persons for the purpose of commercial disposal by land burial by the licensee; or licenses authorizing contingency storage of low level radioactive waste at the site of nuclear power reactors; or licenses for treatment or disposal by incineration, packaging of residues resulting from incineration and transfer of packages to another person

• authorized to receive or dispose of waste materia1:

Application .....*.......................**....***. $150 License, renewal, amendment ****************** Full Cost B. Licenses specifically authorizing the receipt of waste byproduct material, source material, or special nuclear material from other persons for the purpose of packaging or repackaging the material. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material:

Application - New license *****.***************** $1,400 Renewal ******************************************* $930 Am,endment * ***********************.*********.**** ** $350 C. Licenses specifically authorizing the receipt of prepackaged waste byproduct materialt source material, or special nuclear material from other

, persons. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material:

Application - New license .***.******....*.******** $930 Renewal ********.***************************.****** $460 Amend ment ******..** *.********.***.*****.***.****** * $120 Well logging : 3 A. Licenses specifically authorizing use of byproduct material, source material, and/or special nuclear material for well logging, well surveys, and tracer studies other than field flooding tracer studies:

Application - New license *********.*************** $700 Renewal ******..*************************.**.****** $700 Amendment ****.*.*********************************** $170

B. Licenses specifically authorizing use of byproduct material for field flaodin g tracer studies:

AppHcation *************************************** $150 License, renewal, amendment ****************** Full Cost

6. Nuclear laundries:

A. Licenses for commercial collection and laundry of items contaminated with byproduct material, source material, or special nuclear material:

Application - New license **.********************* $700

• Renewal .*.*******.***********..*********** "' ** " .** $700 Amendment ***.*.*.****.**.. ., *.***.*******.*.*****. $170

, . Human use of byproduct, source, or special nuclear material:

A. Licenses issued pursuant to Parts 30, 35, 40, and 70 of this chapter for human use of by product material, source material, or special nuclear material in sealed sources contained in teletherapy devices:

Application - New license ........................ $580

Renewal ***.*.****.****************.************** $350 Amend ment ****** *************.******************** $230

8. Licenses of broad scope issued to medical

• institutions or two or more physicians pursuant to Parts 30, 33, 35, 40 and 70 of this chapter authorizing research and development, including human use of byproduct material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices:

• Application - New license ****.***************** $1,200 Renewal **********.********.******..******.****.** $700 Amen dment ****..********************************** $120 C. Other licenses issued pursuant to Parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in telethera p y devices:

Applicati'on - New license ************************* $580 I

Renew~ ******************************************* $580 Amend ment ........................................... $120

8. Civil defense:

A. Licenses for possession and use of byproduct materia 1, source material, or special nuclear materia1 for civil defense activities:

Application - New license *******.****************. $290 Renewal ***.********* o **************************** * $230 Amendment ........................................... $60

9. Device, product or sealed source safety evaluation:

A. Safety evaluation of devices or products containing byproduct material, source material, or special nuclear material, except reactor fuel devices, for commercial distribution:

Application - each device ********.************** $1,600 Amendment - each device *************************** $580

B. Safety evaluation of devices or products containing byproduct material, source material, or special nuclear material manufactured in accordance with the unique specifications of, and for use by a single applicant, -except

• reactor fuel devices:

Application - each device ************.************ $800 Amendment - each device ******************.*****.** $290 C. Safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, except reactor fuel, for commercial distribution:

• AppHcation - each source **..************.*******. $350 Amendment each source *****.****.***.***.*.***.** $120 D. Safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, manufactured in accordance with the unique specifications of, and for use by a single applicant, except reactor fuel:

Application - each source *******.*.*****.*****.*** $175 Amendment-each source ****.****.******************** $60

10. Transportation of radioactive material:

A. Evaluation of casks, packages, and shipping containers:

Application ......*.........*............*......... $150

' B.

Approval, Renewal, Amendment ***.************* Full Evaluation of Part 71 quality assurance programs:

Cost3 Application - New license *********************** $150 Renewal **.***.*********.*.**.**...*********.***** Fu11 Cost3 Amendment ***************.***.*******.*********** Full Cost,J I 11. Review of standardized spent fuel facilities: 3 AppHcation *.************************.********************** $150 Al)proval, amendment ************************************ Full Cost.

3

12. Special projects :

Application .............*...*......*....*...**...*....**...* $150 Approval .**.*...*..**..........**...*...*.....*...*.... Full Cost

~

1 '

Types of fees - Separate charges as shown in the schedule will be assessed for applications for new licenses and approvals, issuance of new licenses and approvals, and amendments and renewals to existing licenses and approvals. The following guidelines apply to these charges:

' (a) Application fees - Applications for new materials licenses and approvals or those applications filed in support of expired licenses and approvals must be accompanied by the prescribed application fee for each category, except that applications for licenses covering more than one fee category of special nuclear material or source material must be acco,mpanied by the prescribed application fee for the highest fee category.

I (b) License/approval fees - For new licenses and approvals is*sued in fee Categories lA and 18, 2A, 4A, 58, lOA, 11 and 12, the recipient shall pay the license or approval fee as determined by . the Commission in accordance with§ 170.12(b), (e), and (f).

(c) Renewal fees - Applications for renewal of materials licenses and approvals must be accompanied by the prescribed renewal fee for each category, except that applications for renewal of licenses and approvals in fee Categories lA and 18, 2A, 4A, 5B, lOA, and 11 must be accompanied by an application fee of $150, with the balance due upon notification by the Commission in accordance with the procedures specified in §170.12(d).

(d) Amendment fees Applications for amendments must be accompanied by the prescribed amendment fees. An application for an amendment to a license or approval classified in more than one category must be accompanied by the prescribed amendment fee for the category affected by the amendment unless the amendment is applicable to two or more fee categories in which case the amendment fee for the highest fee category

' would apply, except that applications for amendment of licenses in fee Categories lA and 1B, 2A, 4A, 5B, lOA, 11, and 12 must be accompanied by an application foe of $150 with the balance due upon notification by the Commission in accordance with § 170.12(c).

An application for amendment to a materials license or approval that wvu1d place the license or approval in a higher fee category or add a new fee category rr.ust be accorr.panied by the prescribed application fee for the I new category.

Applications to terminate licenses authorizing small materials programs, when no dismantling or decontamination procedure is required, shall :not be subject to fees.

An application for amendment to a license or approval that would reduce the scope of a licensee's program to a lower fee category must be accompanied by the prescribed amendment fee for the lower fee category.

2 Fees will not be charged for orders issued by the Commission pursuant to § 2.204 of Part 2 nor for amendments resulting specifically from I

such Commission orders. However, fees will be charged for approvals issued pursuant to a specific exemption provision of the Commission's regulations under Title 10 of the Code of Federal Regulations (e.g., §§ 30.11, 40.14, 70.14, 73.5, and any other such sections now or hereafter in effect)

' regardless of whether the approval is in the form of a license amendment, 1etu:r of approval, safety evaluation report, or other form. In addition tc the fee shown, an applicant may be assessed an additional fee for sealed

$ource and device evaluations as shown in Cagegories 9A through 9D.

1

. . Full cost fees will be determined based on the professional staff time and appropriate contractual support services expended for review of the I application. For those applications currently on file and for which fees are de:termineci based on the full cost expended for the review, the professional staff hours expended for the review of the application up to the effective date of this rule will be determined at the professional rate established for the June 20, 1984 rule. For those applications currently on file for which review costs have reached an applicable fee ceiling established by the June 20, 1984 rule, but are still pending completion of the review, the cost incurred after the ceiling was reached up to the effective date of this rule will not be billed to the applicant. Any professional hours expended on or after the effective date of this rule will be assessed at the rate established by § 170.20 of this part. This rate will be reviewed and adjusted annually

as necessary to take into consideration increased or decreased costs to the Commission. In no event will the total review costs be less than the a pp 1ication fee. The professional rate will be published in the Federal Register for each fiscal year.

4 Licensees paying fees under Categories lA and 1B are not subject to I fees under Categories lC and lD for sealed sources authorized in the same license except in those instances in which an application deals only with the sealed sources authorizeci by the license. Applicants for new licenses or renev al of existing 1icenses that cover both byproduct material and special nuclear material in sealed sources for use in gauging devices will pay the appropriate application or renewal fee for fee Category IC only.

6. Section 170.32 is revised to read as follows:

I § 170.32 Schedule of fees for health and safety, and safeguards inspections for materials licenses.

SCHEDULE OF MATERIALS LICENSE INSPECTION FEES (See footnotes at end of table)

Type of Frequency Inspection 1 3 2

Cate gory of license Fee of Billin g

1. Special nuclear material: ,

A. Licenses for possession and use of 200 grams or more of plutonium in unsealed form or 350 grams or more of contained U-235 in unsealed

' form or 200 grams or more of U-233 in unsealed form. This includes applications to terminate licenses and to authorize decommissioning, decontamination, reclamation, or site restoration activities as wen as licenses authorizing possession only Routine .*.*****.*****..*.*.**...*** Full Cost4 Per Inspection

• B.

Non-routine ****.*****.*.******.**** Full Cost4 Licenses for receipt and storage of spent fuel Do at an independent spent fuel storage installation (ISFSI):

4 Routine **.***********.**.****.***.****.*.*.*. Fu11 Cost Co 4

Non - ro uti ne . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. Fu11 Cost Do C. Licenses for possession and use of special nuclear

,.. "*~ .. ~* ~ .. ; . - . - ' ~ . - . ~* ~. - . .,

material in sealed sources contained in devices used in ind us trial measuring systems:

Routine ****..**..**.***....*** o ************* * $210 Do Non-routine ***.********.********************* $640 Do

' D. All other special nuclear material licenses, except licenses authorizing special nuclear material in unsealed form in combination that would constitute a critical quantity as defined in § 15C.11 of this chapter for which the licensee shall pay an inspection fee based on the full cost method indicated in category lA *

• Routine ...*. c . o * * * * * * * * * "' * * * * * * * * * * * * * * * * * * * * *

• Non-routine ............................... .,0 * * * *

$320

$370 Do Do

2. Source material:

A. Licenses for possession and use of source material in recovery operations such as milling, in-situ leaching and heap-leaching, refining uranium mill concentrates to

' uranium hexafluoride, ore buying stations, ion exchange facilities, and in processing of ores containing source material for extraction of metals other than uranium or thorium, iracluding 1ic1:11ses authorizing the possession of byproduct waste material (tailing) from source material recovery operations, and licenses authorizing I decommissioning, reciamation or restoration activities i:I.S well as licenses authorizing the possessior, ar.d maintenance of a facility in a standby mode:

Routine * ............................ II * * * * * * * * * *

• Fu 11 Cost 4 Do 4

Non-routine ...*.**.............*.***.*....*.*** Fu11-Cost Do

B. Licenses for po~session and use of source material for shielding,, except as provided for in § 170.ll(a)S:

Routine *.***..******.**.******************.**.* $130 Do

• Non-routine .................................... $160 C. All other source material licenses:

Do Routine .*..*.****.**.******.**.*****.***.**...* $370 Do Non-routine *****.******..***.***.************** $690 Do 3* Byproduct material:

• A. Licenses of broad scope for possession and use of byproduct material issued pursuant to Parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution to licensees:

Routine ****************************.**********.** $950 5 Do 5

Non-routine .****************************.****** $1,000 Do

B. Other licenses for possession and use of byproduct material issued pursuant to Part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution to licensees:

' Routine .***..* o Non-routine .....

e ************************* o ****

$480 5

$900 5 Do Do C. Licenses issued pursuant to§§ 32.72, 32.73 and/or 32.74 of Part 32 of this chapter authorizing the processing or manufacturing and distribution of ra diop harmaceuticals, I generators, reagent kits anc/or devices containing byproduct rnateria1:

Routine *.*.....*...******......*.***.*.*..**.** $640 Do Non-routine ************************************ $850 Do D. Licenses and approvals issued pursuant to§§ 32.72, 32.73 and/or 32.74 of Part 32 of this chapter authorizing distribution of radiopharmaceuticals, generators, reagent

kits and/or sources or devices not involving processing of byproduct material:

Routine **.......*. ,. .* o ************ o ************ $370 Do Non-routine ********** ~*************************$530 Do E. Licenses for possession and use of byproduct material in sealed sources for irradiation of materials in which the source is not removed from its shield (self-shielded units):

Rau ti ne *********.****************** o " ********** $210 Do Non-routine ..********.**********...**.*.**.**** $320 Do F. Licenses for possession and use of less than 10,000 curies of byproduct material iri sealed sources for irradiation of materials in which the source is ex posed for irradiation purposes:

Routine ..**.***.**.. Iii ************************* * $270 Do Non-routine *************.********************** $580 Do G. Licenses for possession and use of 10,000 curies or more of byproduct material in sealed sources for irradiation of materials in which the source is exposed for irradiation purposes:

i Ro utine ..........*..*........*.....*........... $480 Do Non-routine . ....**..* _.*....*.***..*.*..**.*.** $640 Do H. Licenses issued pursuant to Subpart A of Part 32 of this chapter to distribute items containing byproduct material that require device review to persons exempt from the licensing requirements of Part 30 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of Part 30 of this chapter:

RoutinE .*.*.........*.....*.....*...*...*...... $320 Do Non-routine .***********.************..********* $320 Do I. Licenses issued pursuant to subpart A of Part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require device evaluation to persons exempt from the licensing requirements of Part 30 of this chapter, except specific

licenses authorizing redistribution of items that have been ~uthorized for distribution to persons exempt from the licensing requirements of Part 30 of this chapter:

Routine .................................*...... $210 Do Non-routine ****.**.**************************** $320 Do J. Licenses issued pursuant to Subpart B of Part 32 of this cl'lapter to distribute iterns containing byproduct material that require sealed source and/or device review to persons generally licensed under Part 31 of this chapter, except specific licenses authorizing redistribution to persons generally licensed under Part 31 of this chapter:

Routine **.************************************* $320 Do Non-routine .......................*......*..... $320 Po K. Licenses issued pursuant to Subpart B of Part 32 of this chapter to distribute items containing byproduct material or

quantities of byproduct material that do not require sealed source and/or device review to persons generally licensed under Part 31 of this chapter, except specific licenses authorizing redistribution to persons generally licensed under Part 31 of this chapter:

Routi ne **************************************** $3 20 Do Non-routine .................................... $320 Do L. Licenses of broad scope for possession and use of byproduct material issued pursuant to Parts 30 and 33 of this chapter for research and development that do not authorize commercial distribution Routine ......***....***.**...****.****......*.* $420 Do Non-routine .*************.********************* $530 Do M. Other licenses for possession and use of byproduct material issued pursuant to Part 30 of this chapter for research and development

that do not authorize com mercia1 distribution:

Routine ........................................ $3 7O Do Non-routine ***.*.*********.******************** $420 Do N. Licenses that authorize services for other licenses, except for leak testing and waste disposal pickup services:

Routine ****.******...******.*..*.....*....**.** $320 Do Non-routine .................................... $320 Do

0. Licenses for possession and use of byproduct material issued pursuant to Part 34 of this chapter for industrial radiography operations:

Routine ...*..***.*..*..**.....*.**.*.....**..** $530 5 Do 5

Nun-routine ********.**.********..******.*.*** $1,200 Do P. All other specific byproduct material licenses except those in categories 4A through 9D:

Routine . . . . . . . . . . . . . . . ......*.................. $53O Do Non-routine .................................... $530 Do

4. Waste disposal:

A. Licenses specifically aµthorizing the receipt of waste byproduct rnaterial,source material, or special nuclear material from other persons for the purpose of commercial disposal by land burial by the licensee; or licenses authorizing contingency storage of low-level radioactive wastes at the site of nuclear power reactors; or licenses for treatment or disposal by incint:ration, packaging of residues, resulting from incineration, and transfer of packages to another person authorized to receive or dispose of waste material 4

Routine ***.*...******** Full cost Do Nonroutine .************ Full Cost 4 Do B. Licenses specifically authorizing the receipt of waste byproduct material, source material, or special nuclear material from other persons for the purpose of packaging or repackaging the material. The licensee wm dispose of the material by transfer to another person authorized to receive or dispose of the material Routine .*********** $1,000 Do Nonroutine......... 740 Do

C. Licenses specifically authorizing the receipt of prepackaged waste byproduct material, source material, or special nuclear material from other persons. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material Routine ************ $740 Do Nonroutine .******.* $950 Do

5. \Jell logging:

A. Licenses specifically authorizing use of byproduct material, source material, and/or special nuclear mate-rial for well logging, wel1 surveys, and tracer studies other than field flooding tracer studies Routine *.******...* $370 Do Non routine ****.**.. $370 Do P.. Licenses specifically authorizing use of byproduct material for field flooding tracer studies Routine ************ $320 Do Nonroutine ********* $480 Do

6. Nuclear laundries:

A. Licenses for commercial collection and laundry of items contaminated with byproduct material, source

rnateria 1, or special nu clear materia 1 Routine ******** '**.* $530 Do Nonroutine ********* $850 Do

7. Human use of byproduct, source, or special nuclear material:

A. Licenses issued pursuant to Parts 30, 40, and 70 of this chapter for human use of by-product material, source material, or special nuclear material in sealed sources contained in teletherapy devices Routine ************ $530 Do Non routine ..**.**** $850 Do B. Licenses of broad scope issued to medical insti-tutions or two or more physicians pursuant to Parts 30, 33, 35, 40, and 70 of this chapter authorizing research and development, including human use of by-product material, except licenses for byproduct mate-rial, source material, or special nuclear material in sealed sources contained in telethera py devices Routine .......... $740 Do Nonroutine .***..* $800 Do C. Other licenses issued pursuant to Parts 30, 35, 40, and 70 of this chapter for human use of byproduct mate-rial, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in

telethera py devices Routine ...*.*********** $480 I

Do Non routine ****.******** $690 Do

8. Civil defense:

Licenses for possession and use of byproduct material, source material, or special nuclear material for civil defense activities Routine .............. $320 Do Non routi11 e ****.****** $320 Do

9. Device, product, or sealed source safety evaluation:

Safr:ty evaluation of devices,products or sea1eci scurces containing byproduct, source, or special nuclear material, except reactor fuel No inspections conducted

10. T ransportaticn of radioactive Do material A. Eva1uation of casks, packages, and shipping containers.

B. Evaluation of Part 71 quality assurance programs Do

11. Review of standardized spent Do

fuel facilities 1~. Special projects Do 1

Types of inspections -- Separate charges will be assessed for each routine and non-routine inspection whie h is performed, except those investigations conducted by the Office of Investigations. Non-routine inspections that result from third-party allegations will not be subject to f£:eS.

2 If a license holds more than one rr:aterials license at a single lo,cation, a fee equal to the highest fee category covered by the licenses will be assessed if the inspections are conducted at the same time, except in cases when the inspection fees are based on the full cost to conduct the inspection.

3 Fees for all routine and non-routine inspections will be assessed on a per inspection basis.

4 The fees assessed at full cost will be determined based on the professional staff time required to conduct the inspection multiplied by the rate established under § 170.20 of this part, to which any appropriate contractual support service costs incurred will be added. This rate will be

reviewed and adjusted annually as necessary to take into consideration increased or decreased costs tp the Com mission.

5 For a license authorizing shielded radiographic installations or manufacturing installations at more than one address, a separate fee will be assessed for inspection of each location, except that if the multiple installations are inspected during a single visit, a single inspection fee will l:E: assessed.

P.A.RT 171 - ANNUAL FEE FOR POWER REACTOR OPERATING LICENSES

7. The authority citation for Part 171 is revised tu read as follows:

AUTHORITY: Sec. 7601, Pub. L.99-272, 100 Stat. 146, as amended by sec. 5601, Pub. L. 100-203, Stat.  ; sec. 301, Pub. L.92-314, 86 Stat. 222, (42 U.S.C. 2201(w)); sec. 201, 82 Stat. 1242, as amended (42 U

• S

• C

• 5841) *

8. In § 171.5, the following definitions are added:

§171.5 Definitions 11 The term Budgeted obligations 11 is defined to be the projected obligations of the NRC that likely will result in payments by the NRC during