22–164

Calendar No. 154

109TH CONGRESS REPORT

1st Session " ! SENATE 109–100

NUCLEAR FEES REAUTHORIZATION ACT OF 2005

JULY 1, 2005.—Ordered to be printed

Mr. INHOFE, from the Committee on Environment and Public

Works, submitted the following

REPORT

[to accompany S. 858]

The Committee on Environment and Public Works, to which was

referred the bill (S. 858) to reauthorize Nuclear Regulatory Commission user fees, and for other purposes, having considered the

same, reports favorably thereon with an amendment, and recommends that the bill, as amended, do pass.

GENERAL STATEMENT

This legislation addresses critical non-security needs that will

help to better align Nuclear Regulatory Commission’s (NRC or

Commission) limited resources and capabilities so as to accomplish

the Commission’s goals. In addition to extending NRC’s authority

to recover 90 percent of its costs from licensee fees, the legislation

provides needed NRC reforms and the incentives for the NRC to attract both young and retired technical expertise.

BACKGROUND

History of NRC Fee Authority

In 1986, Congress enacted the Consolidated Omnibus Budget

Reconciliation Act of 1985, or COBRA–85 (P.L. 99–272). Section

7601 of this legislation directed the NRC to assess and collect annual fees from its licensees in an amount that, when added to other

fees such as fees for service collected in the same fiscal year, would

not exceed 33 percent of NRC costs for that fiscal year. COBRA–

85 directed that this annual charge should be ‘reasonably related
2

to the regulatory service provided by the Commission and [must]

fairly reflect the cost to the Commission of providing such service.’

In the late 1980’s, Congress twice acted to increase the percentage of the NRC budget that was to be collected in licensee fees.

Congress enacted the Omnibus Budget Reconciliation Act of 1987

(P.L. 100–203), which directed the NRC to collect up to 45 percent

of its budget in fees in each of fiscal years 1988 and 1989. The Omnibus Budget Reconciliation Act of 1989 (P.L. 101–234) extended

this requirement through fiscal year 1990.

One year later, Congress approved the Omnibus Budget Reconciliation Act of 1990, known as OBRA–90 (P.L. 101–508). Section

6101 of that legislation required the NRC to collect fees-for-service

from NRC applicants and annual fees from NRC licensees. With regard to fees-for-service, OBRA–90 required that pursuant to the

Independent Offices Appropriations Act, the NRC continue to

charge any applicant or other person receiving a service from the

NRC a fee covering the cost to the NRC of providing the service.

With regard to annual charges, the legislation directed the NRC to

‘collect annual fees from licensees that to the maximum extent

practicable . . . have a reasonable relationship to the cost of providing regulatory services’ and in an amount that, when added to

the amount collected in fees for service and the amount appropriated for the Nuclear Waste Fund, would approximate fully 100

percent of NRC budget authority for that fiscal year. To meet the

new requirement, the NRC adopted a policy of collecting annual

fees not only from reactor licensees, but materials licensees as well.

OBRA–90 provided this fee authority for a period of 5 years,

through fiscal year 1995. Since then, that authority has been extended three times: for an additional 3 years (through fiscal year

1998) by the Omnibus Budget Reconciliation Act of 1993, or

OBRA–93 (P.L. 103–66); for an additional year (through fiscal year

1999) by the 1998 Energy and Water Development appropriations

legislation (P.L. 105–245); and for an additional year (through fiscal year 2000) by the 1999 Energy and Water Development appropriations legislation (P.L. 106–60).

Fairness Concerns

In the early 1990’s, concerns were raised regarding the fairness

of the fee assessment structure. In the Energy Policy Act of 1992

(P.L. 102–486), Congress took steps to address one perceived inequity by statutorily excluding certain federally owned research reactors from the NRC annual fee requirement. In addition, the 1992

Act directed the NRC to undertake a review of its policy for assessing annual charges, solicit public comment on necessary changes to

such policy, and make recommendations to Congress on possible

changes to existing law that could prevent an unfair burden from

being levied on certain NRC licensees.

Accordingly, in February 1994 the NRC submitted to Congress

its ‘Report to Congress on the U.S. Nuclear Regulatory Commission’s Licensee Fee Policy Review Required by the Energy Policy

Act of 1992.’ The Report took into account not only the 566 public

comments received during the compilation of the Report, but also

the more than 1,000 public comments submitted during consideration of previous fee-related rules, the thousands of letters and
3

phone calls received regarding fees, two petitions for rulemaking,

a court decision, and an NRC-requested review by the Commission’s Inspector General.

The 1994 Report identified two key concerns regarding fairness

and equity: first, that not all direct beneficiaries of NRC activities

pay fees; and second, that fees are based on the NRC’s cost of performance, rather than on the licensees’ perception of benefits received. With regard to the question of fees that are not directly related to services to licensees, the Report acknowledged that the fee

requirements inherently placed a burden on licensees when certain

activities such as some international activities, oversight of and

regulatory support to the Agreement State program, the statutory

fee exemption for Federal agencies, and the NRC’s fee exemptions

or reductions for nonprofit educational institutions and small entities are considered. As for the issue of benefits perceived, the Report concluded that the concern had merit when considered with

regard to the materials regulatory program.

Finally, the Report included legislative recommendations to Congress to remove certain costs from the fee base, the net effect of

which would be the recovery of 90 percent of the NRC’s budget authority through fees. While the NRC initiated some changes in its

fee structure, Congress did not act on the legislative recommendations.

PAST COMMITTEE ACTIONS ON RECOMMENDATIONS

On two separate occasions, the committee has acted on legislation that would address fee collection. On May 18, 1998, former Environment and Public Works Committee Chairman Chafee introduced the NRC Fairness in Funding Act of 1998 (S. 2090), legislation to extend the authority of the NRC to collect fees through

2003, and to exclude from the fee base those costs for which it

would not be fair and equitable to assess charges on licensees.

Joining him as original cosponsors were Subcommittee on Clean

Air, Wetlands, Private Property, and Nuclear Safety Chairman

Inhofe and Ranking Member Graham; Subcommittee on Superfund,

Waste Control, and Risk Assessment Chairman Smith; and Senator

Jeffords. S. 2090 was reported favorably by the full committee on

May 21; however, the bill did not receive Senate approval prior to

the end of the 105th Congress.

On September 23, 1999, Senator Inhofe introduced the NRC

Fairness in Funding Act of 1999 (S. 1627), legislation to extend the

authority of the NRC to collect fees through 2004, and to exclude

inequitable costs from the fee base. On September 29, Senator

Inhofe offered an amendment in the nature of a substitute on behalf of Senators Chafee, Baucus, and Graham. Title I of that

amendment extends the NRC’s fee authority through 2005, excludes inequitable costs from the fee base, and allows fee recovery

from other government agencies for NRC services. Title II of the

amendment amends current law to enhance nuclear safety and

physical security, increase NRC efficiency, and maximize Commission resources. The full committee adopted the substitute amendment, and then favorably reported S. 1627 as amended by unanimous consent on April 13th, 2000. S. 1627 then passed the Senate

with an amendment and an amendment to the title by unanimous
4

consent on April 13, 2000. Since the passage of S. 1627 out of committee, the NRC has proceeded to implement many of the requirements of S. 1627 through orders and rulemaking.

CURRENT COMMITTEE ACTION ON RECOMMENDATIONS

The committee continues to support recovery of NRC regulatory

costs, including the costs of the implementation of additional security measures, through the imposition of fees on licensees. However, the committee acknowledges that the NRC should retain an

appropriated account for security-related planning activities that

have dramatically increased since September 11, 2001.

On April 20th 2005, Senator Voinovich introduced S. 858 which

contains many similar provisions to S. 1627. On June 8th 2005, S.

858 was ordered to be reported by the full committee with an

amendment in the nature of a substitute by unanimous consent.

Title I of S. 858 allows the NRC to continue to recover 90 percent

of its budget from licensee fees through 2011. Title II includes several NRC reform provisions that are critical to better aligning the

NRC’s resources and capabilities. Title III includes human capital

provisions needed to ensure that NRC meets its long-term staffing

needs. A section-by-section analysis of S. 858 as amended follows.

SECTION-BY-SECTION ANALYSIS

Section 1. Short title; table of contents.

This Act may be cited as the ‘‘Nuclear Fees Reauthorization Act

of 2005’’.

TITLE I—NRC USER FEES

Sec. 101. Nuclear Regulatory Commission user fees and annual

charges.

Section 6101 of the Omnibus Budget Reconciliation Act of 1990

(42 U.S.C. 2214) is amended by extending the Nuclear Regulatory

Commission’s authority to recover 90 percent of its costs from licensee fees through 2011. Absent congressional action, amount collected via licensee fees would be reduced to approximately 33 percent at the end of December, 2005. Excluded from these fees are

costs incurred from regulating residual defense radioactive waste

and homeland security activities. The 90 percent level was set in

law in 2000 via Public Law 106–377.

TITLE II—NRC REFORM

Sec. 201. Treatment of nuclear reactor financial obligations.

Section 541(b) of title 11, United States Code, is amended to ensure that funds held to pay for decontamination and decommissioning of nuclear power plants will not be used to satisfy the claim

of any creditor in a bankruptcy proceeding under this title until decommissioning is complete. The requirement to use such funds for

decommissioning applies, under this section, regardless of who

owns or controls the funds.
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Sec. 202. Period of combined license.

Section 103(c) of the Atomic Energy Act of 1954 (42 U.S.C. 2135

(c)) is amended to ensure that the initial duration of a combined

construction and operating license may be up to 40 years from the

date on which the NRC finds that the acceptance criteria of the license are met. This clarification ensures that the duration period

of combined licenses is consistent with that of separate operating

licenses.

Sec. 203. Elimination of NRC antitrust reviews.

Section 105(c) of the Atomic Energy Act of 1954 (42 U.S.C. 2135

(c)) is amended so as to eliminate prospectively the NRC’s antitrust

review requirement in connection with applications to construct or

operate a commercial utilization or production facility. Given the

broad antitrust authority of both the Federal Energy Regulatory

Commission (FERC) and the Department of Justice, the NRC’s authority is rarely used and duplicative, and does not need to be

maintained. This provision is intended to affect only the NRC’s

antitrust responsibilities with respect to its regulatory actions. The

committee intends such reviews to be conducted, as appropriate, by

the Department of Justice and FERC, and this provision does not

diminish the authority of those agencies to conduct antitrust reviews associated with licensing actions at nuclear facilities. The

NRC remains responsible for assuring that its licensees continue to

operate plants safely, regardless of changes that may take place in

the structure of the industry. Interested members of the public

therefore will continue to have the opportunity to intervene in NRC

proceedings to raise potential safety issues related to those

changes.

Sec. 204. Medical isotope production.

Section 134 of the Atomic Energy Act of 1954 (42 U.S.C. 2160d)

is amended allowing for the U.S. to continue exporting highly enriched uranium (HEU) to Canada, Belgium, France, Germany, and

the Netherlands for the production of medical isotopes on the condition that these countries agree to switch to low enriched uranium

(LEU) as soon as possible and that LEU fuel for their reactors be

under active development. The NRC is also to review current security requirements for HEU usage. The National Academy of

Sciences is also required to study the feasibility of producing medical isotopes in LEU reactors.

Sec. 205. Cost recovery from government agencies.

Section 161(w) of the Atomic Energy Act of 1954 (42 U.S.C. 2201

(w)) is amended to allow the NRC to recover fees from other government agencies for NRC services (such as licensing and inspection services). It permits the NRC to recover fees from other Federal agencies for NRC services.

Sec. 206. Conflicts of interest relating to contracts and other arrangements.

Section 170A(b) of the Atomic Energy Act of 1954 (42 U.S.C.

2210a(b)) is amended to allow the NRC to access specialized expertise with the Department of Energy or a contractor even though
6

there may be a conflict of interest, however the contracts to do such

work require adequate justification. This is intended to be limited

to extraordinary circumstances, specifically so that NRC can access

Department of Energy labs when the expertise does not exist elsewhere.

Sec. 207. Authorization of appropriations.

Such sums as necessary are authorized to carry out this title for

fiscal year 2006 and each subsequent fiscal year.

TITLE III—NRC HUMAN CAPITAL PROVISIONS

Sec. 301. Provision of support to university nuclear safety, security,

and environmental protection programs.

Section 31(b) of the Atomic Energy Act of 1954 (42 U.S.C. 2051

(b)) to is amended to authorize the NRC to provide incentives such

as grants, loans, cooperative agreements, contracts, etc. to institutions of higher education to support studies, courses, training in

areas such as nuclear safety, security, environmental protection,

etc.

The additional authority provided by this section would enable

the Commission to foster the development of the next generation

of nuclear regulatory specialists by funding university programs

that would help address shortages of individuals with critical skills

needed by the NRC.

Sec. 302. Recruitment tools.

A new section 170C is added to the Atomic Energy Act of 1954

(42 U.S.C. 2201 et seq.) that authorizes the NRC to purchase recruitment items of nominal value to help recruit new employees.

Sec. 303. Expenses authorized to be paid by the Nuclear Regulatory

Commission.

A new section 170D is added to the Atomic Energy Act of 1954

(42 U.S.C. 2201 et seq.) that authorizes the NRC to pay for the

transportation, lodging, and subsistence of students working at the

NRC in areas critical to the mission of the NRC while attending

institutions of higher education. It addresses current NRC difficulties in hiring students, for summer and other short term periods

of employment because of the areas’ high cost of travel, housing,

and related expenses. These student employees are a valuable

source for future recruitment for NRC employment. Assistance

with the high cost of housing will help ensure the agency’s ability

to hire the best.

This section would also authorize the NRC to pay for costs of

health and medical services furnished, pursuant to an agreement

with the State Department, to NRC employees and their dependents serving in foreign countries. This provision is needed to provide NRC staff and their dependents that are assigned overseas

health and medical services from the United States embassies and

health facilities in those countries.
7

Sec. 304. Nuclear Regulatory Commission scholarship and fellowship program.

Section 243 is added to the Atomic Energy Act of 1954 (42 U.S.C.

2015a) authorizing the NRC to provide scholarships and fellowships in areas critical to the NRC’s mission. To maintain its ability

to protect the health and safety of the public and the common defense and security, the agency must be able to recruit new employees who have the skills necessary for the NRC to continue to carry

out its mission. The section would also establish a similar program

for the award by NRC of fellowships to graduate students. A student who receives such a scholarship or fellowship would have to

be a citizen of the United States.

Sec. 305. Partnership program with institutions of higher education.

A new Section 244 is added to the Atomic Energy Act of 1954 (42

U.S.C. 2015 et seq.) authorizing NRC to establish and participate

in partnership programs with institutions of higher education, including Historically Black Colleges and Universities, Hispanic

Serving Institutions and Tribal Colleges. These could include collaborative research, mentoring, instruction, and training activities

conducted at these educational institutions or conducted at NRC facilities.

Sec. 306. Elimination of pension offset for certain rehired Federal

retirees.

A new section 170E is added to the Atomic Energy Act of 1954

(42 U.S.C. 2201 et seq.) provides the NRC with the authority to rehire on a case-by-case basis retired employees as contractors without adversely affecting their pensions. This authority will enable

the agency to more expeditiously return former Federal employees

to Federal service when those employees are needed for the purpose of maintaining the agency’s ability to protect the public health

and safety and common defense and security.

Sec. 307. Authorization of appropriations.

Such sums as necessary are authorized to carry out this title for

fiscal year 2006 and each subsequent fiscal year.

HEARINGS

Since the committee approved S. 1627 on April 13, 2000, it has

held annual oversight hearings. There was one general oversight

hearing held on the Nuclear Regulatory Commission in the 109th

Congress during which testimony on S. 858 was taken. Witnesses

included: Nils J. Diaz, Chairman, U.S. Nuclear Regulatory Commission; Edward McGaffigan, Jr., Commissioner, U.S. Nuclear Regulatory Commission; Gregory B. Jaczko, Commissioner, U.S. Nuclear Regulatory Commission; Jim Wells, Director, Natural Resources and the Environment, Government Accountability Office;

Marilyn C. Kray, President, NuStart Energy Development; Dr.

Edwin Lyman, Senior Staff Scientist, Global Security Program

Union of Concerned Scientists.
8

ROLLCALL VOTES

Section 7(b) of rule XXVI of the Standing Rules of the Senate and

the rules of the Committee on Environment and Public Works require that any roll call votes taken during consideration of legislation be noted in the report.

The Committee on Environment and Public Works met to consider S. 858 on June 8, 2005. The committee voted favorably to report S. 858 by voice vote.

REGULATORY IMPACT STATEMENT

Section 11(b) of rule XXVI of the Standing Rules of the Senate

requires publication in the report of the committee’s estimate of the

regulatory impact of the bill as reported. S. 858, as reported, is expected to impose no new regulatory impact. This bill will not affect

the personal privacy of individuals.

MANDATES ASSESSMENT

In compliance with the Unfunded Mandates Reform Act of 1995

(P.L. 104–4), the committee makes the following evaluation of the

Federal mandates contained in the reported bill. S. 858, as reported, impose no Federal intergovernmental mandates on State,

local, or tribal governments.

COST OF LEGISLATION

Section 403 of the Congressional Budget and Impoundment Act

requires each report to contain a statement of the cost of a reported

bill prepared by the Congressional Budget Office. Senate Rule

XXVI paragraph 11(a)(3) allows the report to include a statement

of the reasons why compliance is impracticable. The committee has

requested this statement from the Congressional Budget Office and

will publish it in the Congressional Record when it becomes available.

CHANGES IN EXISTING LAW

In compliance with section 12 of rule XXVI of the Standing Rules

of the Senate, changes in existing law made by the bill as reported

are shown as follows: Existing law proposed to be omitted is enclosed in [black brackets], new matter is printed in italic, existing

law in which no change is proposed is shown in roman:

[11 U.S.C. 541(B)]

SEC. 541. PROPERTY OF THE ESTATE

(a) * * *

* * * * * * *

(b) Property of the estate does not include—

(1) * * *

* * * * * * *

(4) any interest of the debtor in liquid or gaseous hydrocarbons to the extent that—
9

(A)(i) the debtor has transferred or has agreed to

transfer such interest pursuant to a farmout agreement or

any written agreement directly related to a farmout agreement; and

(ii) but for the operation of this paragraph, the estate could include the interest referred to in clause (i)

only by virtue of section 365 or 544(a)(3) of this title;

or

(B)(i) the debtor has transferred such interest pursuant to a written conveyance of a production payment to an

entity that does not participate in the operation of the

property from which such production payment is transferred; and

(ii) but for the operation of this paragraph, the estate could include the interest referred to in clause (i)

only by virtue of section 542 of this title; øor¿

(5) any interest in cash or cash equivalents that constitute

proceeds of a sale by the debtor of a money order that is

made—

(A) on or after the date that is 14 days prior to the

date on which the petition is filed; and

(B) under an agreement with a money order issuer

that prohibits the commingling of such proceeds with property of the debtor (notwithstanding that, contrary to the

agreement, the proceeds may have been commingled with

property of the debtor),

unless the money order issuer had not taken action, prior

to the filing of the petition, to require compliance with the

prohibitionø.¿ ; or

(6) funds accumulated or otherwise designated for decontamination and decommissioning pursuant to a regulation or

order of the Nuclear Regulatory Commission for a nuclear

power reactor licensed under section 103 or 104 b. of the Atomic

Energy Act of 1954 (42 U.S.C. 2133, 2134(b)).

Paragraph (4) shall not be construed to exclude from the estate

any consideration the debtor retains, receives, or is entitled to receive for transferring an interest in liquid or gaseous hydrocarbons

pursuant to a farmout agreement.

* * * * * * *

ATOMIC ENERGY ACT OF 1954

* * * * * * *

CHAPTER 1. DECLARATION, FINDINGS, AND PURPOSE

SECTION 1. DECLARATION.—Atomic energy is capable of application for peaceful as well as military purposes. It is therefore declared to be the policy of the United States that—

a. * * *

* * * * * * *

SEC. 31. RESEARCH ASSISTANCE.—
10

a. * * *

* * * * * * *

øb. The Commission is further authorized to make¿

b. GRANTS AND CONTRIBUTIONS.—The Nuclear Regulatory

Commission is authorized—

(1) to make grants and contributions to the cost of construction and operation of reactors and other facilities and

other equipment to colleges, universities, hospitals, and eleemosynary or charitable institutions for the conduct of educational and training activities relating to the fields in subsection aø.¿ ; and

(2) to provide grants, loans, cooperative agreements, contracts, and equipment to institutions of higher education (as defined in section 102 of the Higher Education Act of 1965 (20

U.S.C. 1002)) to support courses, studies, training, curricula,

and disciplines pertaining to nuclear safety, security, or environmental protection, or any other field that the Nuclear Regulatory Commission determines to be critical to the regulatory

mission of the Nuclear Regulatory Commission.

* * * * * * *

SEC. 103. COMMERCIAL LICENSES.—

a. * * *

* * * * * * *

c. Each such license shall be issued for a specified period, as

determined by the Commission, depending on the type of activity

to be licensed, but not exceeding øforty years¿ 40 years from the

authorization to commence operations, and may be renewed upon

the expiration of such period.

* * * * * * *

SEC. 105. ANTITRUST PROVISIONS.—

a. * * *

* * * * * * *

c. (1) The Commission shall promptly transmit to the Attorney

General a copy of any license application provided for in paragraph

(2) of this subsection, and a copy of any written request provided

for in paragraph (3) of this subsection; and the Attorney General

shall, within a reasonable time, but in no event to exceed 180 days

after receiving a copy of such application or written request, render

such advice to the Commission as he determines to be appropriate

in regard to the finding to be made by the Commission pursuant

to paragraph (5) of this subsection. Such advice shall include an explanatory statement as to the reasons or basis therefor.

(2) Paragraph (1) of this subsection shall apply to an application for a license to construct or operate a utilization or production facility under section 103: Provided, however, That

paragraph (1) shall not apply to an application for a license to

operate a utilization or production facility for which a construction permit was issued under section 103 unless the Commission determines such review is advisable on the ground that

significant changes in the licensee’s activities or proposed activities have occurred subsequent to the previous review by the
11

Attorney General and the Commission under this subsection in

connection with the construction permit for the facility.

(3) With respect to any Commission permit for the construction of a utilization or production facility issued pursuant

to subsection 104 b. prior to the enactment into law of this subsection, any person who intervened or who sought by timely

written notice to the Commission to intervene in the construction permit proceeding for the facility to obtain a determination of antitrust considerations or to advance a jurisdiction

basis for such determination shall have the right, upon a written request to the Commission, to obtain an antitrust review

under this section of the application for an operating license.

Such written request shall be made within 25 days after the

date of initial Commission publication in the Federal Register

of notice of the filing of an application for an operating license

for the facility or the date of enactment into law of this subsection, whichever is later.

(4) Upon the request of the Attorney General, the Commission shall furnish or cause to be furnished such information as

the Attorney General determines to be appropriate for the advice called for in paragraph (1) of this subsection.

(5) Promptly upon receipt of the Attorney General’s advice,

the Commission shall publish the advice in the Federal Register. Where the Attorney General advises that there may be

adverse antitrust aspects and recommends that there be a

hearing, the Attorney General or his designee may participate

as a party in the proceedings thereafter held by the Commission on such licensing matter in connection with the subject

matter of his advice. The Commission shall give due consideration to the advice received from the Attorney General and to

such evidence as may be provided during the proceedings in

connection with such subject matter, and shall make a finding

as to whether the activities under the license would create or

maintain a situation inconsistent with the antitrust laws as

specified in subsection 105 a.

(6) In the event the Commission’s findings under paragraph (5) is in the affirmative, the Commission shall also consider, in determining whether the license should be issued or

continued, such other factors, including the need for power in

the affected area, as the Commission in its judgment deems

necessary to protect the public interest. On the basis of its

findings, the Commission shall have the authority to issue or

continue a license as applied for, to refuse to issue a license,

to rescind a license or amend it, and to issue a license with

such conditions as it deems appropriate.

(7) The Commission, with the approval of the Attorney

General, may except from any of the requirements of this subsection such classes or types of licenses as the Commission

may determine would not significantly affect the applicant’s activities under the antitrust laws as specified in subsection 105

a.

(8) With respect to any application for a construction permit on file at the time of enactment into law of this subsection,

which permit would be for issuance under section 103, and
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with respect to any application for an operating license in connection with which a written request for an antitrust review is

made as provided for in paragraph (3), the Commission, after

consultation with the Attorney General, may, upon determination that such action is necessary in the public interest to

avoid unnecessary delay, establish by rule or order periods for

Commission notification and receipt of advice differing from

those set forth above and may issue a construction permit or

operating license in advance of consideration of and findings

with respect to the matters covered in this subsection: Provided, That any construction permit or operating license so

issued shall contain such conditions as the Commission deems

appropriate to assure that any subsequent findings and orders

of the Commission with respect to such matters will be given

full force and effect.

(9) APPLICABILITY.—This subsection does not apply to an

application for a license to construct or operate a utilization facility or production facility under section 103 or 104 b., if the

application is filed on or after, or is pending on, the date of enactment of this paragraph.

* * * * * * *

SEC. 134. FURTHER RESTRICTIONS ON EXPORTS.— øb.¿ a. As used in this section—

(1) the term ‘‘alternative nuclear reactor fuel or target’’

means a nuclear reactor fuel or target which is enriched to less

than 20 percent in the isotope U–235;

(2) the term ‘‘highly enriched uranium’’ means uranium

enriched to 20 percent or more in the isotope U–235; and

(3) a fuel or target ‘‘can be used’’ in a nuclear research or

test reactor if—

(A) the fuel or target has been qualified by the Reduced Enrichment Research and Test Reactor Program of

the Department of Energy, and

(B) use of the fuel or target will permit the large majority of ongoing and planned experiments and isotope production to be conducted in the reactor without a large percentage increase in the total cost of operating the reactor.

øa.¿ øb. The Commission¿ b.RESTRICTIONS.—Except as provided in subsection c., the Nuclear Regulatory Commission may

issue a license for the export of highly enriched uranium to be used

as a fuel or target in a nuclear research or test reactor only if, in

addition to any other requirement of this Act, the Commission determines that—

(1) there is no alternative nuclear reactor fuel or target enriched in the isotope 235 to a lesser percent than the proposed

export, that can be used in that reactor;

(2) the proposed recipient of that uranium has provided assurances that, whenever an alternative nuclear reactor fuel or

target can be used in that reactor, it will use that alternative

in lieu of highly enriched uranium; and

(3) the United States Government is actively developing an

alternative nuclear reactor fuel or target that can be used in

that reactor.

c. MEDICAL ISOTOPE PRODUCTION.—
13

(1) DEFINITIONS.—In this subsection:

(A) MEDICAL ISOTOPE.—The term ‘medical isotope’ includes Molybdenum 99, Iodine 131, Xenon 133, and other

radioactive materials used to produce a radiopharmaceutical for diagnostic, therapeutic procedures or for research and development.

(B) RADIOPHARMACEUTICAL.—The term ‘radiopharmaceutical’ means a radioactive isotope that—

(i) contains byproduct material combined with

chemical or biological material; and

(ii) is designed to accumulate temporarily in a part

of the body for therapeutic purposes or for enabling the

production of a useful image for use in a diagnosis of

a medical condition.

(C) RECIPIENT COUNTRY.—The term ‘recipient country’

means Belgium, Canada, France, Germany, and the Netherlands.

(2) LICENSES.—The Nuclear Regulatory Commission may

issue a license authorizing the export (including shipment to

and use at intermediate and ultimate consignees specified in

the license) to a recipient country of highly enriched uranium

for medical isotope production if, in addition to any other requirements of this Act (except subsection b.), the Nuclear Regulatory Commission determines that—

(A) a recipient country that supplies an assurance letter to the United States Government in connection with the

consideration by the Nuclear Regulatory Commission of the

export license application has informed the United States

Government that any intermediate consignees and the ultimate consignee specified in the application are required to

use the highly enriched uranium solely to produce medical

isotopes; and

(B) the highly enriched uranium for medical isotope

production will be irradiated only in a reactor in a recipient country that—

(i) uses an alternative nuclear reactor fuel; or

(ii) is the subject of an agreement with the United

States Government to convert to an alternative nuclear

reactor fuel when alternative nuclear reactor fuel can

be used in the reactor.

(3) REVIEW OF PHYSICAL PROTECTION REQUIREMENTS.—

(A) IN GENERAL.—The Nuclear Regulatory Commission

shall review the adequacy of physical protection requirements that, as of the date of an application under paragraph (2), are applicable to the transportation and storage

of highly enriched uranium for medical isotope production

or control of residual material after irradiation and extraction of medical isotopes.

(B) IMPOSITION OF ADDITIONAL REQUIREMENTS.—If the

Nuclear Regulatory Commission determines that additional

physical protection requirements are necessary (including a

limit on the quantity of highly enriched uranium that may

be contained in a single shipment), the Nuclear Regulatory
14

Commission shall impose such requirements as license conditions or through other appropriate means.

(4) FIRST REPORT TO CONGRESS.— (A) NATIONAL ACADEMY OF SCIENCES STUDY.—The Secretary shall enter into an arrangement with the National

Academy of Sciences to conduct a study to determine—

(i) the feasibility of procuring supplies of medical

isotopes from commercial sources that do not use highly enriched uranium;

(ii) the current and projected demand and availability of medical isotopes in regular current domestic

use;

(iii) the progress that is being made by the Department of Energy and others to eliminate all use of highly enriched uranium in reactor fuel, reactor targets,

and medical isotope production facilities; and

(iv) the potential cost differential in medical isotope production in the reactors and target processing

facilities if the products were derived from production

systems that do not involve fuels and targets with

highly enriched uranium.

(B) FEASIBILITY.—For the purpose of this subsection,

the use of low enriched uranium to produce medical isotopes shall be determined to be feasible if—

(i) low enriched uranium targets have been developed and demonstrated for use in the reactors and target processing facilities that produce significant quantities of medical isotopes to serve United States needs

for such isotopes;

(ii) sufficient quantities of medical isotopes are

available from low enriched uranium targets and fuel

to meet United States domestic needs; and

(iii) the average anticipated total cost increase

from production of medical isotopes in such facilities

without use of highly enriched uranium is less than 10

percent.

(C) REPORT BY THE SECRETARY.—Not later than 5

years after the date of enactment of the Nuclear Fees Reauthorization Act of 2005, the Secretary shall submit to Congress a report that—

(i) contains the findings of the National Academy

of Sciences made in the study under subparagraph (A);

and

(ii) discloses the existence of any commitments

from commercial producers to provide domestic requirements for medical isotopes without use of highly

enriched uranium consistent with the feasibility criteria described in subparagraph (B) not later than the

date that is 4 years after the date of submission of the

report.

(5) SECOND REPORT TO CONGRESS.—If the study of the National Academy of Sciences determines under paragraph

(4)(A)(i) that the procurement of supplies of medical isotopes

from commercial sources that do not use highly enriched ura-
15

nium is feasible, but the Secretary is unable to report the existence of commitments under paragraph (4)(C)(ii), not later than

the date that is 6 years after the date of enactment of the Nuclear Fees Reauthorization Act of 2005, the Secretary shall submit to Congress a report that describes options for developing

domestic supplies of medical isotopes in quantities that are adequate to meet domestic demand without the use of highly enriched uranium consistent with the cost increase described in

paragraph (4)(B)(iii).

(6) CERTIFICATION.—At such time as commercial facilities

that do not use highly enriched uranium are capable of meeting

domestic requirements for medical isotopes, within the cost increase described in paragraph (4)(B)(iii) and without impairing

the reliable supply of medical isotopes for domestic utilization,

the Secretary shall submit to Congress a certification to that effect.

(7) SUNSET PROVISION.—After the Secretary submits a certification under paragraph (6), the Nuclear Regulatory Commission shall, by rule, terminate the review of the Nuclear Regulatory Commission of export license applications under this

subsection.

* * * * * * *

SEC. 161. GENERAL PROVISIONS.—In the performance of its

functions the Commission is authorized to—

a. * * *

* * * * * * *

w. prescribe and collect from any other Government agency, which applies øfor or is issued a license for a utilization facility designed to produce electrical or heat energy pursuant to

section 103 or 104 b., or which operates any facility regulated

or certified under section 1701 or 1702¿ to the Nuclear Regulatory Commission for, or is issued by the Nuclear Regulatory

Commission, a license or certificate, any fee, charge, or price

which it may require, in accordance with the provisions of section ø483a¿ 9701 of title 31 of the United States Code or any

other lawø, of applicants for, or holders of, such licenses or certificates¿.

* * * * * * *

SEC. 170A. CONFLICTS OF INTEREST RELATING TO CONTRACTS

AND OTHER ARRANGEMENTS.—

a. * * *

* * * * * * *

øb. The Commission¿

b. EVALUATION.—

(1) IN GENERAL.—Except as provided in paragraph (2), the

Nuclear Regulatory Commission shall not enter into any such

contract agreement or arrangement unless it finds, after evaluating all information provided under subsection a. and any

other information otherwise available to the Commission

that—

ø(1)¿(A) it is unlikely that a conflict of interest would

exist, or
16

ø(2)¿(B)such conflict has been avoided after appropriate conditions have been included in such contract,

agreement, or arrangement; except that if the Commission

determines that such conflict of interests exists and that

such conflict of interest cannot be avoided by including appropriate conditions therein, the Commission may enter

into such contract, agreement, or arrangement, if the Commission determines that it is in the best interests of the

United States to do so and includes appropriate conditions

in such contract, agreement, or arrangement to mitigate

such conflict.

(2) NUCLEAR REGULATORY COMMISSION.—Notwithstanding

any conflict of interest, the Nuclear Regulatory Commission

may enter into a contract, agreement, or arrangement with the

Department of Energy or the operator of a Department of Energy facility, if the Nuclear Regulatory Commission determines

that—

(A) the conflict of interest cannot be mitigated; and

(B) adequate justification exists to proceed without

mitigation of the conflict of interest.

* * * * * * *

SEC. 170C. RECRUITMENT TOOLS.

The Nuclear Regulatory Commission may purchase promotional items of nominal value for use in the recruitment of individuals for employment.

SEC. 170D. EXPENSES AUTHORIZED TO BE PAID BY THE NUCLEAR REGULATORY COMMISSION.

The Nuclear Regulatory Commission may—

(1) pay transportation, lodging, and subsistence expenses of

employees who—

(A) assist scientific, professional, administrative, or

technical employees of the Nuclear Regulatory Commission;

and

(B) are students in good standing at an institution of

higher education (as defined in section 102 of the Higher

Education Act of 1965 (20 U.S.C. 1002)) pursuing courses

related to the field in which the students are employed by

the Nuclear Regulatory Commission; and

(2) pay the costs of health and medical services furnished,

pursuant to an agreement between the Nuclear Regulatory

Commission and the Department of State, to employees of the

Nuclear Regulatory Commission and dependents of the employees serving in foreign countries.

SEC. 170E. ELIMINATION OF PENSION OFFSET FOR CERTAIN REHIRED

FEDERAL RETIREES.

a. IN GENERAL.—The Nuclear Regulatory Commission may

waive the application of section 8344 or 8468 of title 5, United

States Code, on a case-by-case basis for employment of an

annuitant—

(1) in a position of the Nuclear Regulatory Commission for

which there is exceptional difficulty in recruiting or retaining a

qualified employee; or

(2) when a temporary emergency hiring need exists.
17

b. PROCEDURES.—The Nuclear Regulatory Commission shall

prescribe procedures for the exercise of authority under this section,

including—

(1) criteria for any exercise of authority; and

(2) procedures for a delegation of authority.

c. EFFECT OF WAIVER.—An employee as to whom a waiver

under this section is in effect shall not be considered an employee

for purposes of subchapter II of chapter 83, or chapter 84, of title

5, United States Code.

* * * * * * *

SEC. 242. COLD STANDBY.

The Secretary is authorized to expend such funds as may be

necessary for the purposes of maintaining enrichment capability at

the Portsmouth, Ohio, facility.

SEC. 243. SCHOLARSHIP AND FELLOWSHIP PROGRAM.

a. SCHOLARSHIP PROGRAM.—To enable students to study, for at

least 1 academic semester or equivalent term, science, engineering,

or another field of study that the Nuclear Regulatory Commission

determines is in a critical skill area related to the regulatory mission of the Nuclear Regulatory Commission, the Nuclear Regulatory

Commission may carry out a program to—

(1) award scholarships to undergraduate students who—

(A) are United States citizens; and

(B) enter into an agreement under subsection c. to be

employed by the Nuclear Regulatory Commission in the

area of study for which the scholarship is awarded.

b. FELLOWSHIP PROGRAM.—To enable students to pursue education in science, engineering, or another field of study that the Nuclear Regulatory Commission determines is in a critical skill area

related to its regulatory mission, in a graduate or professional degree program offered by an institution of higher education in the

United States, the Nuclear Regulatory Commission may carry out

a program to—

(1) award fellowships to graduate students who—

(A) are United States citizens; and

(B) enter into an agreement under subsection c. to be

employed by the Nuclear Regulatory Commission in the

area of study for which the fellowship is awarded.

c. REQUIREMENTS.—

(1) IN GENERAL.—As a condition of receiving a scholarship

or fellowship under subsection a. or b., a recipient of the scholarship or fellowship shall enter into an agreement with the Nuclear Regulatory Commission under which, in return for the assistance, the recipient shall—

(A) maintain satisfactory academic progress in the

studies of the recipient, as determined by criteria established by the Nuclear Regulatory Commission;

(B) agree that failure to maintain satisfactory academic progress shall constitute grounds on which the Nuclear Regulatory Commission may terminate the assistance;

(C) on completion of the academic course of study in

connection with which the assistance was provided, and in

accordance with criteria established by the Nuclear Regu-
18

latory Commission, engage in employment by the Nuclear

Regulatory Commission for a period specified by the Nuclear Regulatory Commission, that shall be not less than 1

time and not more than 3 times the period for which the

assistance was provided; and

(D) if the recipient fails to meet the requirements of

subparagraph (A), (B), or (C), reimburse the United States

Government for—

(i) the entire amount of the assistance provided the

recipient under the scholarship or fellowship; and

(ii) interest at a rate determined by the Nuclear

Regulatory Commission.

(2) WAIVER OR SUSPENSION.—The Nuclear Regulatory Commission may establish criteria for the partial or total waiver or

suspension of any obligation of service or payment incurred by

a recipient of a scholarship or fellowship under this section.

d. COMPETITIVE PROCESS.—Recipients of scholarships or fellowships under this section shall be selected through a competitive

process primarily on the basis of academic merit and such other criteria as the Nuclear Regulatory Commission may establish, with

consideration given to financial need and the goal of promoting the

participation of individuals identified in section 33 or 34 of the

Science and Engineering Equal Opportunities Act (42 U.S.C. 1885a,

1885b).

e. DIRECT APPOINTMENT.—The Nuclear Regulatory Commission

may appoint directly, with no further competition, public notice, or

consideration of any other potential candidate, an individual who

has—

(1) received a scholarship or fellowship awarded by the Nuclear Regulatory Commission under this section; and

(2) completed the academic program for which the scholarship or fellowship was awarded.

SEC. 244. PARTNERSHIP PROGRAM WITH INSTITUTIONS OF HIGHER EDUCATION.

a. DEFINITIONS.—In this section:

(1) HISPANIC-SERVING INSTITUTION.—The term ‘Hispanicserving institution’ has the meaning given the term in section

502(a) of the Higher Education Act of 1965 (20 U.S.C.

1101a(a)).

(2) HISTORICALLY BLACK COLLEGE AND UNIVERSITY.—The

term ‘historically Black college or university’ has the meaning

given the term ‘part B institution’ in section 322 of the Higher

Education Act of 1965 (20 U.S.C. 1061).

(3) TRIBAL COLLEGE.—The term ‘Tribal college’ has the

meaning given the term ‘tribally controlled college or university’

in section 2(a) of the Tribally Controlled College or University

Assistance Act of 1978 (25 U.S.C. 1801(a)).

b. PARTNERSHIP PROGRAM.—The Nuclear Regulatory Commission may establish and participate in activities relating to research,

mentoring, instruction, and training with institutions of higher education, including Hispanic-serving institutions, historically Black

colleges or universities, and Tribal colleges, to strengthen the capacity of the institutions—
19

(1) to educate and train students (including present or potential employees of the Nuclear Regulatory Commission); and

(2) to conduct research in the field of science, engineering,

or law, or any other field that the Nuclear Regulatory Commission determines is important to the work of the Nuclear Regulatory Commission.

* * * * * * *

[42 U.S.C. 2214]

OMNIBUS BUDGET RECONCILIATION ACT OF 1990

SEC. 2214. NRC USER FEES AND ANNUAL CHARGES. (a) ANNUAL ASSESSMENT.— (1) IN GENERAL.—Except as provided in paragraph (3), the

Nuclear Regulatory Commission (in this section referred to as

the ‘‘Commission’’) shall annually assess and collect such fees

and charges as are described in subsections (b) and (c) of this

section.

(2) FIRST ASSESSMENT.—The first assessment of fees under

subsection (b) of this section and annual charges under subsection (c) of this section shall be made not later than September 30, 1991.

(3) LAST ASSESSMENT OF ANNUAL CHARGES.—The last assessment of annual charges under subsection (c) of this section

shall be made not later than September 20, ø2005¿ 2011. (b) FEES FOR SERVICE OR THING OF VALUE.—Pursuant to section

9701 of title 31, any person who receives a service or thing of value

from the Commission shall pay fees to cover the Commission’s costs

in providing any such service or thing of value.

(c) ANNUAL CHARGES.— (1) PERSONS SUBJECT TO CHARGE.—Except as provided in

paragraph (4), any licensee or certificate holder of the Commission may be required to pay, in addition to the Fees set forth

in subsection (b) of this section, an annual charge.

(2) AGGREGATE AMOUNT OF CHARGES.— (A) IN GENERAL.—The aggregate amount of the annual

charges collected from all licensees and certificate holders

in a fiscal year shall equal an amount that approximates

the percentages of the budget authority of the Commission

for the fiscal year stated in subparagraph (B), less—

(i) amounts collected under subsection (b) of this

section during the fiscal year; øand¿

(ii) amounts appropriated to the Commission from

the Nuclear Waste Fund for the fiscal yearø.¿ ;

(iii) amounts appropriated to the Nuclear Regulatory Commission for the fiscal year for implementation of section 3116 of the Ronald W. Reagan National

Defense Authorization Act for Fiscal Year 2005 (118

Stat. 2162; 50 U.S.C. 2601 note); and

(iv) amounts appropriated to the Nuclear Regulatory Commission for homeland security activities of

the Nuclear Regulatory Commission for the fiscal year,

except for the costs of fingerprinting and background
20

checks required by section 149 of the Atomic Energy

Act of 1954 (42 U.S.C. 2169) and the costs of conducting security inspections.

(B) PERCENTAGES.—The percentages referred to in

subparagraph (A) are—

(i) 98 percent for fiscal year 2001;

(ii) 96 percent for fiscal year 2002;

(iii) 94 percent for fiscal year 2003;

(iv) 92 percent for fiscal year 2004; and

(v) 90 percent for øfiscal year 2005¿ each of fiscal

years 2005 through 2011. (3) AMOUNT PER LICENSEE.—The Commission shall establish, by rule, a schedule of charges fairly and equitably allocating the aggregate amount of charges described in paragraph

(2) among licensees. To the maximum extent practicable, the

charges shall have a reasonable relationship to the cost of providing regulatory services and may be based on the allocation

of the Commission’s resources among licensees or classes of licensees.

(4) EXEMPTION.— (A) IN GENERAL.—Paragraph (1) shall not apply to the

holder of any license for a federally owned research reactor

used primarily for educational training and academic research purposes.

(B) RESEARCH REACTOR.—For purposes of subparagraph (A), the term ‘‘research reactor’’ means a nuclear reactor that—

(i) is licensed by the Nuclear Regulatory Commission under section 2134(c) of this title for operation at

a thermal power level of 10 megawatts or less; and

(ii) if so licensed for operation at a thermal power

level of more than 1 megawatt, does not contain—

(I) a circulating loop through the core in

which the licensee conducts fuel experiments;

(II) a liquid fuel loading; or

(III) an experimental facility in the core in excess of 16 square inches in cross-section.

(d) ‘‘NUCLEAR WASTE FUND’’ DEFINED.—As used in this section,

the term ‘‘Nuclear Waste Fund’’ means the fund established pursuant to section 10222(c) of this title.

* * * * * * *

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