ML21238A246

Receipts-Based NRC Size Standards Final Rule

ML21238A246
Person / Time
Issue date:	01/27/2022
From:	Clay Johnson NRC/OCFO
To:
cyl2
References
NRC-2014-0264, RIN 3150-AJ51
Download: ML21238A246 (16)

Text

[7590-01-P]

NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2 and 171

[NRC-2014-0264]

RIN 3150-AJ51

Receipts-Based NRC Size Standards

AGENCY: U.S. Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The U.S. Nuclear Regulatory Commission (NRC) is amending its small

business size standards, which are used to qualify an NRC licen see as a small entity

under the Regulatory Flexibility Act of 1980, as amended. The purpose of these size

standards is for reducing annual NRC license fees for small entities. These standards

do not apply to the NRCs contracts for goods and services. Th e NRC is increasing the

upper and lower tiers for its receipts-based small entity size standards for small

businesses and small not-for-profit organizations. This change allows NRC standards to

remain consistent with the inflation adjustments made by the Sm all Business

Administration size standard for nonmanufacturing concerns. In addition, in accordance

with the Small Business Runway Extension Act of 2018, the NRC i s changing the

calculation of annual average receipts for the receipts-based N RC size standard for

small businesses that provide a service or small businesses not engaged in

manufacturing from a 3-year averaging period to a 5-year averag ing period.

DATES: This final rule is effective on March 21, 2022.

ADDRESSES: Please refer to Docket ID NRC-2014-0264 when contacting the NRC

about the availability of information for this action. You may obtain publicly-available

information related to this action by any of the following meth ods:

• Federal Rulemaking Website: Go to https://www.regulations.gov and

search for Docket ID NRC-2014-0264. Address questions about NRC dockets to Dawn

Forder; telephone: 301-415-3407; email: Dawn.Forder@nrc.gov. For technical

questions, contact the individual listed in the FOR FURTHER INF ORMATION

CONTACT section of this final rule.

• NRCs Agencywide Documents Access and Management System

(ADAMS): You may obtain publicly-available documents online in the ADA MS Public

Documents collection at https://www.nrc.gov/reading-rm/adams.ht ml. To begin the

search, select Begin Web-based ADAMS Search. For problems wi th ADAMS, please

contact the NRCs Public Document Room (PDR) reference staff at 1-800-397-4209,

301-415-4737, or by email to pdr.resource@nrc.gov. The ADAMS a ccession number for

each document referenced (if it is available in ADAMS) is provi ded the first time that it is

mentioned in this document.

For the convenience of the reader, the ADAMS accession numbers and

instructions about obtaining materials referenced in this docum ent are provided in the

Availability of Documents section of this document.

FOR FURTHER INFORMATION CONTACT: Jo Jacobs, Office of the Chief Financial

Officer, telephone: 301-415-8388; email: Jo.Jacobs@nrc.gov; or Billy Blaney, Office of

the Chief Financial Officer, telephone: 301-415-5092; email: W illiam.Blaney@nrc.gov.

2 Both are staff of the U.S. Nuclear Regulatory Commission, Washi ngton, DC 20555-

0001.

SUPPLEMENTARY INFORMATION:

Table of Contents:

I. Background II. Discussion III. Public Comments IV. Regulatory Flexibility Certification V. Regulatory Analysis VI. Backfitting and Issue Finality VII. Plain Writing VIII. National Environmental Policy Act IX. Paperwork Reduction Act Public Protection Notification X. Congressional Review Act XI. Voluntary Consensus Standards XII. Availability of Guidance XIII. Availability of Documents

I. Background

The NRCs current size standards are provided under part 2 of t itle 10 of the

Code of Federal Regulations (10 CFR), Agency Rules of Practice and Procedure, in

§ 2.810, NRC size standards. These standards were establishe d on

December 9, 1985 (50 FR 50241), when the NRC implemented the re quirements of the

Regulatory Flexibility Act of 1980, as amended (RFA). The RFA requires agencies to

consider the impact of rulemaking on small entities and, consis tent with applicable

statutes, study alternatives to minimize these impacts on appli cable businesses,

organizations, and government jur isdictions. The NRCs regulat ions in § 2.810 and

10 CFR part 171, Annual Fees for Reactor Licenses and Fuel Cyc le Licenses and

Materials Licenses, Including Holders of Certificates of Compli ance, Registrations, and

3 Quality Assurance Program Approvals and Government Agencies Lic ensed by the

NRC, contain the criteria, in § 171.16(a) and (c), Annual fee s: Materials licensees,

holders of certificates of compliance, holders of sealed source and device registrations,

holders of quality assurance program approvals, and government agencies licensed by

the NRC, that certain licensees use to qualify as small entiti es for the purpose of

reducing annual license fees. The NRCs current size standards under § 2.810 are

based on the Small Business Administrations (SBA) receipts-bas ed size standards for

small businesses and small not-for-profit organizations, employ ee-based size standards

for business concerns that are manufacturing and for small educ ational institutions that

are not State or publicly supported entities, and population-ba sed size standards for

small governmental jurisdictions.

In establishing the fiscal year (FY) 1991 fee rule, the NRC det ermined that the

annual fees would have a significant impact on a substantial nu mber of small materials

licensees. As a result, the NRC established a small entity fee tier in § 171.16(c), which

resulted in a subsidy program whereby small entities would pay a reduced annual fee

(56 FR 31507; July 10, 1991). In FY 1992, the NRC established a second tier in

§ 171.16(c) to benefit the licensees that were very small entit ies. Pursuant to

§ 171.16(c), if a licensee qualifies as a small entity and prov ides the Commission with

the proper certification, the licensee may pay a reduced annual fee. As part of the

certification process, a licens ee that meets the NRCs size standards for a small entity

must complete NRC Form 526, Certification of Small Entity Stat us for the Purposes of

Annual Fees, certifying that i t meets the NRCs size standards for a small entity.

The last revisions to the receipts-based size standards in §§ 2.810 and 171.16(c)

to adjust for inflation were published in the Federal Register on July 3, 2012

(77 FR 39385), and in the FY 2013 final fee rule published in t he Federal Register on

July 1, 2013 (78 FR 39479), respectively. More recently, in FY 2020, the NRC surveyed

4 its materials licensees to help determine whether to change the size standards in

§ 2.810 (85 FR 6225; February 4, 2020). With the exception of inflation-related

increases and adjusting the methodology for calculating average gross-receipts to be

consistent with the Small Business Runway Extension Act of 2018 (Runway Act) and

SBA regulations, the survey results did not suggest that the NR C should change its

small entity size standards.

The Runway Act amended section 3(a)(2)(C)(ii)(II) of the Small Business Act

(15 U.S.C. 632(a)(2)(C)(ii)(II)), to modify the requirements fo r the small business size

standards prescribed by an agency without separate statutory au thority to issue size

standards. Subsequently, on December 5, 2019, the SBA publishe d a final rule

modifying its method for calculating average annual receipts us ed to prescribe size

standards for small businesses (84 FR 66561). As a result of a djustments for inflation

described more fully in the Discussion section of this docume nt, the NRC must revise

its receipts-based size standards from a 3-year averaging perio d to a 5-year averaging

period to comply with the Runway Act.

In order to amend § 2.810, the NRC must follow the procedures o f the Small

Business Act, and SBAs implement ing regulations in 13 CFR 121.903, How may an

agency use size standards for its programs that are different t han those established by

SBA? because the NRC does not have separate statutory authorit y to issue size

standards. Accordingly, the NRC has sent this final rule to SB A for review and has

received the approval of the SBA Administrator.

II. Discussion

The NRC is amending § 2.810 to increase the receipts-based smal l entity size

standard from $7.0 million to $8.0 million for small businesses and small, not-for-profit

5 organizations. These amendments are to remain consistent with inflation adjustments

made by the SBA to its size standard for nonmanufacturing conce rns. Most recently, the

SBA adjusted this standard for inflation on July 18, 2019 (84 F R 34261). In addition, the

NRC is also amending the average gross-receipts calculation pro cess to change from a

3-year averaging period to a 5-year averaging period, as requir ed by SBA regulations

and in response to the Runway Act.

Further, and analogous to the inflation adjustment in § 2.810, the NRC is

amending § 171.16(c) to increase the upper-tier receipts-based small entity size

standard from $7.0 million to $8.0 million for small businesses and small, not-for-profit

organizations. Likewise, the NRC is increasing the lower-tier receipts-based size

standard from $485,000 to $555,000, based upon the percent chan ge in the upper tier.

III. Public Comments

The NRC published a proposed rule on July 26, 2021 (86 FR 39980 ), and

requested public comment on its proposed revisions to 10 CFR pa rts 2 and 171. The

comment period on the proposed rule closed on August 25, 2021. The NRC did not

receive any public comments on the proposed rule.

IV. Regulatory Flexibility Certification

Under the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission

certifies that this final rule, if adopted, will not have a sig nificant economic impact on a

substantial number of small entities. This final rule is admin istrative in that this final rule

will revise the criteria in 10 CFR parts 2 and 171 that the NRC uses to determine which

of its licensees qualify as small entities for the purposes of compliance with the RFA.

6 The amendments to the size standards conform to the SBAs revis ed standard and is

expected to result in an increase in the number of NRC licensee s that qualify as small

entities.

V. Regulatory Analysis

The RFA requires agencies to consider the impact of rulemaking on small entities

and, consistent with applicable statutes, study alternatives to minimize the impacts on

applicable businesses, organizations, and government jurisdicti ons. In previous

rulemakings to amend its size standards, the NRC has adjusted t he criteria that the NRC

uses to determine which of its licensees qualify as small entit ies for the purposes of

compliance with the RFA.

For the NRCs size standards, rulemaking is required to amend t he methodology

for calculating average gross-receipts and the upper and lower tier receipts-based size

standards to reflect adjustments for inflation. The NRC has no t revised the receipts-

based size standards in §§ 2.810 and 171.16(c) since 2012 and 2 013, respectively;

therefore, this final rule includes adjustments for inflation. This final rule amends

§§ 2.810 and 171.16(c) to increase the NRCs upper-tier receipt s-based size standard

from $7.0 million to $8.0 million for small businesses and smal l not-for-profit

organizations, in order to remain consistent with the adjustmen ts for inflation made to the

SBAs size standard for nonmanufacturing. In addition, this fi nal rule amends

§ 171.16(c) to increase the lower-tier receipts-based size stan dard from $485,000 to

$555,000, consistent with the percentage change in the upper-ti er. Furthermore, for

consistency with the Runway Act and SBA regulations, the NRC is amending its

methodology for calculating the average gross-receipts from a 3 -year averaging period

to a 5-year averaging period.

7 The NRC estimates that the final rule provides the following be nefits and costs:

Benefits

• This action will result in continued compliance with the RFA, since the final rule

will reduce the impact of annual fees on small entities by incr easing the receipts-

based size standards in § 2.810 and the tiers in § 171.16(c) th at licensees use to

qualify as small entities.

• While it is not certain how many licensees would qualify as sm all entities under

the receipts-based size standards that are being adjusted, the staff estimates

that 95 additional licensees (a 12-percent increase) will poten tially qualify as

small entities and be eligible to pay a reduced annual fee.

• The licensees can have increased regulatory confidence that th e NRC has

amended the agencys receipts-based size standards to be consis tent with the

SBAs practices, and, as stated in SECY-20-0111, Rulemaking Pl an to Amend

the Receipts-Based NRC Size Standards (NRC-2014-0264), (ADAMS

Accession No. ML20268B327), that the NRC will review the curren t size

standards and determine whether proposed amendments are needed every

5 years or sooner based on the SBAs adjustments.

Costs

• The cost impact of changing the average gross-receipts from a 3-year averaging

period to a 5-year averaging period is not known, as the averag e gross-receipts

have been based on a 3-year averaging period since the NRC esta blished its

size standards in 1985. Every licensee will likely need to exp end some effort to

evaluate its gross-receipts and may need to provide additional information if

questions arise during the staffs certification review. Modif ying to a 5-year

averaging period of gross-receipts may result in a negative imp act in that some

8 licensees that are close to the upper limit of their size stand ard could lose their

small entity status, while others may newly qualify as small en tities. Despite this

cost, because the NRC is amending the receipts-based size stand ards to adjust

for inflation, the NRC also is amending the average gross-recei pts from a 3-year

averaging period to a 5-year averaging period pursuant to the R unway Act.

• The expected increase in additional licensees qualifying as sm all entities could

possibly increase the NRCs net budget authority as a result of additional

licensees qualifying as small entities.

The results of the regulatory analysis are cost-justified becau se the final rule

would result in an estimated 95 additional licensees (a 12-perc ent increase) who would

qualify as small entities and be eligible to pay a reduced annu al fee and the identified

cost impacts are expected to be small and would not be passed o nto other NRCs

applicants and licensees. The NRC did not identify any other a lternatives to amend the

receipts-based size standards under § 2.810, which are consiste nt with the adjustments

made by the SBA. In addition, the NRC did not identify any alt ernatives to rulemaking to

amend the upper and lower tiers under § 171.16(c) to reflect ad justments for inflation.

VI. Backfitting and Issue Finality

The NRC has determined that the backfit rule, §§ 50.109, 70.76, 72.62, and

76.76 and the issue finality provisions in 10 CFR part 52 do no t apply to this final rule

and that an analysis is not required because these amendments d o not require the

modification of, or addition to, 1) systems, structures, compon ents, or the design of a

facility; 2) the design approval or manufacturing license for a facility; or 3) the

procedures or organization required to design, construct, or op erate a facility.

9 VII. Plain Writing

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federa l agencies to

write documents in a clear, concise, and well-organized manner. The NRC wrote this

document to be consistent with the Plain Writing Act, as well a s the Presidential

Memorandum, Plain Language in Government Writing, published J une 10, 1998

(63 FR 31885).

VIII. National Environmental Policy Act

The NRC has determined that this final rule is the type of acti on described in

§ 51.22(c)(1). Therefore, neither an environmental impact stat ement nor environmental

assessment has been prepared for this final rule.

IX. Paperwork Reduction Act

This final rule does not contain a collection of information as defined in the

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and, t herefore, is not subject

to the requirements of the Act.

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not requir ed to respond

to, a collection of information unless the document requesting or requiring the collection

displays a currently valid OMB control number.

10 X. Congressional Review Act

This final rule is a rule as defined in the Congressional Revie w Act (5 U.S.C. 801-

808). However, the Office of Management and Budget has not fou nd it to be a major

rule as defined in the Congressional Review Act.

XI. Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995, P ub. L. 104-

113, requires that Federal agencies use technical standards tha t are developed or

adopted by voluntary consensus standards bodies unless the use of such a standard is

inconsistent with applicable law or otherwise impractical. In this final rule, the action

does not constitute the establishment of a standard that contai ns generally applicable

requirements.

XII. Availability of Guidance

The NRC publishes a fee guidance doc ument for small entities annually in

conjunction with the NRCs annual rule to revise its fee schedu les. The Small Entity

Compliance Guide is designed to assist businesses, organizatio ns, educational

institutions, and governmental jurisdictions in determining whe ther they qualify as small

entities by providing the qualifying factors that make up the N RCs definition of small

entity, and the current small entity fees. The NRC will updat e the compliance guide

each year when issuing the final fee rule and to align with the fee schedule of that year.

As part of a future fee rule, the NRC will update the Small Ent ity Compliance Guide to

reflect to changes in §§ 2.810 and 171.16(c). The FY 2021 Smal l Entity Compliance

11 Guide is available as indicated in the Availability of Documen ts, section of this

document.

XIII. Availability of Documents

Documents identified in the following table are available to in terested persons

through one or more of the following methods, as indicated.

ADAMS ACCESSION NO. / WEB DOCUMENT LINK / FEDERAL REGISTER CITATION Public Law (Pub. L.) 115-324, Small https://www.congress.gov/115/plaws/

Business Runway Extension Act of 2018 publ324/PLAW-115publ324.pdf NRC Size Standard for Making Determinations 50 FR 50241 Required by the Regulatory Flexibility Act of 1980 (December 9, 1985)

Revision of Fee Schedules; 100 Percent Fee 56 FR 31507 Recovery (July 10, 1991)

NRC Form 526, Certification of Small Entity https://www.nrc.gov/reading-rm/doc-Status for the Purposes of Annual Fees collections/forms/nrc526.pdf Imposed under 10 CFR Part 171 Receipts-Based, Small Business Size 77 FR 39385 Standard; Direct Final Rule (July 3, 2012)

Revision of Fee Schedules; Fee Recovery for 78 FR 39479 Fiscal Year 2013 (July 1, 2013)

Survey of NRCs Materials Licensees 85 FR 6225 Small Business Size Standards: Calculation 84 FR 66561 of Annual Average Receipts; Final Rule (December 5, 2019)

Small Business Size Standards: Adjustment of 84 FR 34261 Monetary-Based Size Standards for Inflation Receipts-Based NRC Size Standards; 86 FR 39980 Proposed Rule (July 26, 2021)

SECY-20-0111, Rulemaking Plan to Amend ML20268B327 the Receipts-Based NRC Size Standards (NRC-2014-0264)

FY 2021 U.S. Nuclear Regulatory Commission ML21105A750 Small Entity Compliance Guide

List of Subjects

12 10 CFR Part 2

Administrative practice and procedure, Antitrust, Byproduct mat erial, Classified

information, Confidential business information, Environmental p rotection, Freedom of

information, Hazardous waste, Nuclear energy, Nuclear materials, Nuclear power plants

and reactors, Penalties, Reporting and recordkeeping requireme nts, Sex discrimination,

Source material, Special nuclear material, Waste treatment and disposal.

10 CFR Part 171

Annual charges, Byproduct material, Holders of certificates, re gistrations,

approvals, Intergovernmental relations, Nonpayment penalties, N uclear materials,

Nuclear power plants and reactors, Source material, Special nuc lear material.

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 o f 1974, as amended;

and 5 U.S.C. 552 and 553, the NRC is amending 10 CFR parts 2 an d 171 as follows:

PART 2 - AGENCY RULES OF PRACTICE AND PROCEDURE

1. The authority citation for part 2 continues to read as foll ows:

Authority: Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42 U.S.C. 203 9, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201, 2231, 2232, 2233, 2234, 223 6, 2239, 2241, 2282);

Energy Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 58 41, 5846); Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42 U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act (5 U.S.C. 552, 553, 554, 557, 558);

National Environmental Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.

Section 2.205(j) also issued under 28 U.S.C. 2461 note.

2. In § 2.810, revise paragraphs (a)(1) and (b) to read as fol lows:

§ 2.810 NRC Size Standards.

(a) * *

• 13 (1) Concern that provides a service or a concern not engaged in manufacturing

with average gross receipts of $8.0 million or less over its la st 5 completed fiscal years;

or

(b) A small organization is a not-for-profit organization which is independently

owned and operated and has annual gross receipts of $8.0 millio n or less.

PART 171 -- ANNUAL FEES FOR REACTOR LICENSES AND FUEL CYCLE

LICENSES AND MATERIALS LICENSES, INCLUDING HOLDERS OF

CERTIFICATES OF COMPLIANCE, REGISTRATIONS, AND QUALITY ASSURANCE

PROGRAM APPROVALS AND GOVERNMENT AGENCIES LICENSED BY THE NRC

3. The authority citation for part 171 continues to read as fo llows:

Authority: Atomic Energy Act of 1954, secs. 11, 161(w), 223, 234 (42 U.S.C.

2014, 2201(w), 2273, 2282); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C.

5841); 42 U.S.C. 2215; 44 U.S.C. 3504 note.

4. In § 171.16, revise paragraph (c) to read as follows:

§ 171.16 Annual fees: Materials licensees, holders of certific ates of compliance,

holders of sealed source and device registrations, holders of q uality assurance

program approvals, and government agencies licensed by the NRC.

(c) A licensee who is required to pay an annual fee under this section, in addition

to 10 CFR part 72 licenses, may qualify as a small entity. If a licensee qualifies as a

small entity and provides the Commission with the proper certif ication along with its

annual fee payment, the licensee may pay reduced annual fees as shown in table 1 to

this paragraph (c). Failure to file a small entity certificati on in a timely manner could

result in the receipt of a delinquent invoice requesting the ou tstanding balance due

14 and/or denial of any refund that might otherwise be due. The s mall entity fees are as

follows:

Table 1 to Paragraph (c)

Maximum NRC Small Entity Classification Annual Fee Per Licensed Category Small Businesses Not Engaged in Manufacturing (Average gross receipts over the last 5 completed fiscal years):

$555,000 to $8 million $4,900 Less than $555,000 $1,000 Small Not-For-Profit Organizations (Annual Gross Receipts):

$555,000 to $8 million $4,900 Less than $555,000 $1,000 Manufacturing Entities that Have An Average of 500 Employees or Fewer:

35 to 500 employees $4,900 Fewer than 35 employees $1,000 Small Governmental Jurisdictions (Including publicly supported educational institutions) (Population):

20,000 to 49,999 $4,900 Fewer than 20,000 $1,000 Educational Institutions that are not State or Publicly Supported, and have 500 Employees or Fewer 35 to 500 employees $4,900 Fewer than 35 employees $1,000

January 27, 2022

For the Nuclear Regulatory Commission.

/RA/

CherishK.J ohnson, Chief Financial Officer.

15

SUBJECT:

RECEIPTS-BASED NRC SIZE STANDARDS, FINAL RULE, 10 CFR P A R T S 2 A N D 171; [NRC-2014-0264] - RIN 3150-AJ51, dated January 27, 2022

DISTRIBUTION:

RidsEDO Mail Center RidsNMSS Mail Center RidsOCIO Mail Center RidsOGC Mail Center

ADAMS: Yes No Initials: JJ SUNSI Review: JJ Publicly Available Non-Publicly Available Sensitive Non-Sensitive

ADAMS ACCESSION NO: ML21238A246 OFFICE OCFO/DOB/LFPT OCFO/DOB/LFPT OCFO/DOB/LFPT OCFO/DOB/LFPT OCIO NAME JJacobs WBlaney CGalster ACRossi DCullinson DATE 08/26/2021 08/31/2021 08/30/2021 09/01/2021 09/02/2021 OFFICE OCFO/DOC NMSS/REFS/RASB OCFO/DOB/DD OCFO/DOB OGC NLO NAME KDarling CBladey RCAllwein JEShay IIrvin DATE 09/02/2021 9/13/2021 09/21/2021 09/23/2021 10/15/2021 OFFICE DCFO EDO CFO NAME LBFicks DHDorman CKJohnson DATE 09/23/2021 10/25/2021 01/27/2021 OFFICIAL RECORD COPY