[Federal Register Volume 74, Number 39 (Monday, March 2, 2009)]
[Proposed Rules]
[Pages 9130-9157]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-4229]



[[Page 9129]]

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Part II





Nuclear Regulatory Commission





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10 CFR Parts 170 and 171



Revision of Fee Schedules; Fee Recovery for FY 2009; Proposed Rule

Federal Register / Vol. 74, No. 39 / Monday, March 2, 2009 / Proposed 
Rules

[[Page 9130]]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 170 and 171

RIN 3150-AI52
[NRC-2008-0620]


Revision of Fee Schedules; Fee Recovery for FY 2009

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend 
the licensing, inspection, and annual fees charged to its applicants 
and licensees. The proposed amendments are necessary to implement the 
Omnibus Budget Reconciliation Act of 1990 (OBRA-90), as amended, which 
requires that the NRC recover through fees approximately 90 percent of 
its budget authority in fiscal year (FY) 2009, less the amounts 
appropriated from the Nuclear Waste Fund (NWF), amounts appropriated 
for Waste Incidental to Reprocessing (WIR), and amounts appropriated 
for generic homeland security activities. Based on the FY 2009 Energy 
and Water Development Appropriations Bill, reported by the U.S. House 
of Representatives Appropriations Committee, the NRC's required fee 
recovery amount for the FY 2009 budget would be approximately $870.6 
million. After accounting for billing adjustments, the total amount to 
be billed as fees would be approximately $864.8 million.

DATES: The comment period expires April 1, 2009. Comments received 
after this date will be considered if it is practical to do so, but the 
NRC is able to ensure only that comments received on or before this 
date will be considered. Because OBRA-90 requires that the NRC collect 
the FY 2009 fees by September 30, 2009, requests for extensions of the 
comment period will not be granted.

ADDRESSES: You may submit comments by any one of the following methods. 
Please include number RIN 3150-AI52 in the subject line of your 
comments. Comments submitted in writing or in electronic form will be 
made available for public inspection. Because your comments will not be 
edited to remove any identifying or contact information, the NRC 
cautions you against including any information in your submission that 
you do not want to be publicly disclosed.
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID NRC-2008-0620. Address 
questions about NRC dockets to Carol Gallagher 301-492-3668; e-mail 
<a href="/cdn-cgi/l/email-protection#612200130e0d4f26000d0d0006090413210f13024f060e17"><span class="__cf_email__" data-cfemail="3d7e5c4f5251137a5c51515c5a55584f7d534f5e135a524b">[email protected]</span></a>.
    Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
    E-mail comments to: <a href="/cdn-cgi/l/email-protection#fba98e979e969a9092959cd5b89496969e958f88bb958998d59c948d"><span class="__cf_email__" data-cfemail="1b496e777e767a7072757c35587476767e756f685b756978357c746d">[email protected]</span></a>. If you do not 
receive a reply e-mail confirming that we have received your comments, 
contact us directly at 301-415-1677.
    Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 
20852, between 7:30 a.m. and 4:15 p.m. Federal workdays. (Telephone 
301-415-1677).
    Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 
301-415-1101.
    You can access publicly available documents related to this 
document using the following methods:
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Public 
File Area O1 F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agencywide Documents Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC after 
November 1, 1999, are available electronically at the NRC's Electronic 
Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this 
page, the public can gain entry into ADAMS, which provides text and 
image files of NRC's public documents. If you do not have access to 
ADAMS or if there are problems in accessing the documents located in 
ADAMS, contact the NRC's PDR reference staff at 1-800-397-4209, 301-
415-4737, or by e-mail to <a href="/cdn-cgi/l/email-protection#daaabea8f4a8bfa9b5afa8b9bf9ab4a8b9f4bdb5ac"><span class="__cf_email__" data-cfemail="d1a1b5a3ffa3b4a2bea4a3b2b491bfa3b2ffb6bea7">[email protected]</span></a>.
    To obtain additional information on the NRC's FY 2009 budget 
request, commenters and others may review NUREG-1100, Volume 24, 
``Performance Budget: Fiscal Year 2009'' (February 2008), which 
describes the NRC's budget for FY 2009, including the activities to be 
performed in each program. This document is available on the NRC's 
public Web site at http://www.nrc.gov/reading-rm.html. Note, however, 
that NUREG-1100, Volume 24, is based on the NRC's FY 2009 budget 
request to Congress, and that the fees in this rulemaking are based on 
the NRC appropriation in the H.R. 7324. The allocation of the H.R. 7324 
budget to planned activities within each program, and to each fee class 
and fee-relief activities category, is included in the publicly 
available work papers supporting this rulemaking.

FOR FURTHER INFORMATION CONTACT: Rebecca I. Erickson, Office of the 
Chief Financial Officer, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone 301-415-7126, e-mail 
<a href="/cdn-cgi/l/email-protection#25774047404646440b60574c464e564a4b656b77660b424a53"><span class="__cf_email__" data-cfemail="dc8eb9beb9bfbfbdf299aeb5bfb7afb3b29c928e9ff2bbb3aa">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 
I. Background
II. Proposed Action
    A. Amendments to 10 CFR Part 170: Fees for Facilities, 
Materials, Import and Export Licenses, and Other Regulatory Services 
Under the Atomic Energy Act of 1954, as Amended
    B. Amendments to 10 CFR Part 171: Annual Fees for Reactor 
Licenses and Fuel Cycle Licenses and Materials Licenses, Including 
Holders of Certificates of Compliance, Registrations, and Quality 
Assurance Program Approvals and Government Agencies Licensed by the 
NRC
III. Plain Language
IV. Voluntary Consensus Standards
V. Environmental Impact: Categorical Exclusion
VI. Paperwork Reduction Act Statement
VII. Regulatory Analysis
VIII. Regulatory Flexibility Analysis
IX. Backfit Analysis

I. Background

    The NRC is required each year, under OBRA-90 (42 U.S.C. 2214), as 
amended, to recover approximately 90 percent of its budget authority, 
less the amounts appropriated from the NWF, amounts appropriated for 
WIR, and amounts appropriated for generic homeland security activities 
(non-fee items), through fees to NRC licensees and applicants. The NRC 
receives 10 percent of its budget authority (less non-fee items) from 
the general fund each year to pay for the cost of agency activities 
that do not provide a direct benefit to NRC licensees, such as 
international assistance and Agreement State activities (as defined 
under section 274 of the Atomic Energy Act of 1954, as amended).
    The NRC assesses two types of fees to meet the requirements of 
OBRA-90, as amended. First, license and inspection fees, established in 
10 CFR part 170 under the authority of the Independent Offices 
Appropriation Act of 1952 (IOAA) (31 U.S.C. 9701) recover the NRC's 
cost of providing special benefits to identifiable applicants and 
licensees. Examples of the services provided by the NRC for which these 
fees are assessed include the review of applications for new licenses 
and the review of renewal applications, the review of license amendment 
requests, and inspections. Second, annual fees

[[Page 9131]]

established in 10 CFR part 171 under the authority of OBRA-90, as 
amended, recover generic and other regulatory costs not otherwise 
recovered through 10 CFR part 170 fees.
    The NRC is currently operating under a continuing resolution (CR) 
for FY 2009 (H.R. 2638) that is effective through March 6, 2009. This 
means that the FY 2009 funds currently available are similar to the 
NRC's funding in FY 2008. Although the NRC has not received a new 
appropriation for FY 2009 at the time this proposed fee rule was 
submitted for publication in the Federal Register, the NRC must proceed 
with this rulemaking to collect the required fee amounts by September 
30, 2009. Therefore, the NRC is establishing fees in this rulemaking 
based on the FY 2009 Energy and Water Development Appropriations Bill 
(H.R. 7324), reported by the U.S. House of Representatives 
Appropriations Committee. Although, neither the House nor the Senate 
Appropriations Committees' bills have been brought to the floor of the 
chamber for approval, the NRC is proposing to use the House bill since 
it has a higher NRC Appropriation amount. If the actual Appropriation 
signed by the President is lower than this bill, the fee amounts in the 
final rule will be lower than the proposed rule amounts.
    If Congress enacts a different version of the NRC budget than that 
included in H.R. 7324, the fees in the NRC's FY 2009 final fee rule 
will be adjusted to reflect the enacted budget. Therefore, fees in the 
FY 2009 final fee rule may differ from the fees in this proposed rule. 
The NRC will adjust the FY 2009 final fees based on the enacted version 
of the budget without seeking further public comment.
    For example, if Congress enacts legislation that requires the NRC 
to operate under a CR for the full FY 2009 and appropriates 
significantly less to the NRC, the fees in the FY 2009 final fee rule 
will be modified from the fees in this proposed fee rule, to reflect 
the reductions in budgeted resources. The NRC's total required fee 
recovery could be reduced by approximately $144 million under a full-
year CR, as compared to H.R. 7324, although the NRC's exact fee 
recovery amount would depend on the specific provisions in such 
legislation. A given licensee's part 171 annual fees under a full-year 
CR would be either similar to, or less than, the fees included in this 
proposed fee rule. Fees in the FY 2009 final fee rule may also change 
from this proposed fee rule for other reasons, such as changes in the 
amount expected to be received from part 170 fees in FY 2009. Under a 
full-year CR, annual fees for some license fee classes may be affected 
more than other license fee classes, based on which NRC activities are 
subject to budget reductions. It is possible that some annual fees may 
increase from this proposed rule under a full-year CR, because the 
NRC's ten percent fee relief, which is used to reduce all annual fees 
in this proposed rule (discussed more in Section II.B.1, Application of 
``Fee Relief/Surcharge'' of this document), would be reduced. This may 
occur if a particular license fee class is not subject to budget 
reductions under a CR, and also receives a smaller annual fee reduction 
than that included in this proposed fee rule from the NRC's fee relief.
    Based on the H.R. 7324, the NRC's required fee recovery amount for 
the FY 2009 budget is approximately $870.6 million, which is reduced by 
approximately $5.8 million to account for billing adjustments (i.e., 
expected unpaid invoices, payments for prior year invoices), resulting 
in a total of approximately $864.8 million to be billed as fees in FY 
2009.
    In accordance with OBRA-90, as amended, $27.1 million of the 
budgeted resources associated with generic homeland security activities 
are excluded from the NRC's fee base in FY 2009. These funds cover 
generic activities that support an entire license fee class or classes 
of licensees such as rulemakings and guidance development. Under the 
authority of the IOAA, the NRC will continue to bill under part 170 for 
all licensee-specific homeland security-related services provided, 
including security inspections and security plan reviews.
    The amount of the NRC's required fee collections is set by law, and 
is, therefore, outside the scope of this rulemaking. In FY 2009, the 
NRC's total fee recovery amount increases by $91.5 million from FY 
2008, mostly in response to increased regulatory and infrastructure 
support workload for reactor renewal activities, new uranium recovery 
facility applications, new uranium enrichment facilities, and materials 
licensing. The FY 2009 budget was allocated to the fee classes that the 
budgeted activities support. As such, the proposed annual fees for 
reactor, fuel facility, most uranium recovery, and small materials 
licensees increases. Another factor affecting the amount of annual fees 
for each fee class is the estimated collection under part 170, 
discussed in the Proposed Action section of this document.

II. Proposed Action

    The NRC is proposing to amend its licensing, inspection, and annual 
fees to recover approximately 90 percent of its FY 2009 budget 
authority (under H.R. 7324) less the appropriations for non-fee items. 
The NRC's total budget authority for FY 2009 would be $1,069.8 million. 
The non-fee items include $73.3 million appropriated from the NWF, $2 
million for WIR activities, and $27.1 million for generic homeland 
security activities. Based on the 90 percent fee-recovery requirement, 
the NRC would have to recover approximately $870.6 million in FY 2009 
through part 170 licensing and inspection fees and part 171 annual 
fees. The amount required by law to be recovered through fees for FY 
2009 would be $91.5 million more than the amount estimated for recovery 
in FY 2008, an increase of approximately 12 percent.
    The FY 2009 fee recovery amount is reduced by $5.8 million to 
account for billing adjustments (i.e., for FY 2009 invoices that the 
NRC estimates will not be paid during the fiscal year, less payments 
received in FY 2009 for prior year invoices). This leaves approximately 
$864.8 million to be billed as fees in FY 2009 through part 170 
licensing and inspection fees and part 171 annual fees.
    Table I summarizes the budget and fee recovery amounts for FY 2009. 
(Individual values may not sum to totals due to rounding.)

          Table I--Budget and Fee Recovery Amounts for FY 2009
                          [Dollars in millions]
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total Budget Authority..................................        $1,069.8
  Less Non-Fee Items....................................          -102.4
                                                         ---------------
    Balance.............................................          $967.4
  Fee Recovery Rate for FY 2009.........................          x90.0%
                                                         ---------------
    Total Amount to be Recovered for FY 2009............          $870.6
Less Part 171 Billing Adjustments:
  Unpaid FY 2009 Invoices (estimated)...................             1.9
  Less Payments Received in FY 2009 for Prior Year                  -7.7
   Invoices (estimated).................................
                                                         ---------------
    Subtotal............................................            -5.8
Amount to be Recovered Through Parts 170 and 171 Fees...          $864.8
  Less Estimated Part 170 Fees..........................          -320.2
                                                         ---------------
Part 171 Fee Collections Required.......................          $544.6
------------------------------------------------------------------------


[[Page 9132]]

    The NRC estimates that $320.2 million would be recovered from part 
170 fees in FY 2009. This represents an increase of approximately 15 
percent as compared to the actual part 170 collections of $277.3 
million for FY 2008. The NRC derived the FY 2009 estimate of part 170 
fee collections based on the previous four quarters of billing data for 
each license fee class, with adjustments to account for changes in the 
NRC's FY 2009 budget, as appropriate. The remaining $544.6 million 
would be recovered through the part 171 annual fees in FY 2009 which is 
an increase of approximately 15 percent compared to actual part 171 
collections of $472.9 million for FY 2008.
    The NRC plans to publish the final fee rule no later than June 
2009. The FY 2009 final fee rule will be a ``major rule'' as defined by 
the Congressional Review Act of 1996 (5 U.S.C. 801-808). Therefore, the 
NRC's fee schedules for FY 2009 will become effective 60 days after 
publication of the final rule in the Federal Register. The NRC will 
send an invoice for the amount of the annual fee to reactors, part 72 
licensees, major fuel cycle facilities, and other licensees with annual 
fees of $100,000 or more, upon publication of the FY 2009 final rule. 
For these licensees, payment is due on the effective date of the FY 
2009 final rule. Because these licensees are billed quarterly, the 
payment due is the amount of the total FY 2009 annual fee, less 
payments made in the first three quarters of the fiscal year.
    Materials licensees with annual fees of less than $100,000 are 
billed annually. Those materials licensees whose license anniversary 
date during FY 2009 falls before the effective date of the FY 2009 
final rule will be billed for the annual fee during the anniversary 
month of the license at the FY 2008 annual fee rate. Those materials 
licensees whose license anniversary date falls on or after the 
effective date of the FY 2009 final rule will be billed for the annual 
fee at the FY 2009 annual fee rate during the anniversary month of the 
license, and payment will be due on the date of the invoice.
    As a matter of courtesy, the NRC plans to continue mailing the 
proposed fee rule to all licensees, although, as a cost saving measure, 
in accordance with its FY 1998 announcement, the NRC has discontinued 
mailing the final fee rule to all licensees. Accordingly, the NRC does 
not plan to routinely mail the FY 2009 final fee rule or future final 
fee rules to licensees.
    The NRC will send the final rule to any licensee or other person 
upon specific request. To request a copy, contact the License Fee Team, 
Division of the Controller, Office of the Chief Financial Officer, at 
301-415-7554, or e-mail <a href="/cdn-cgi/l/email-protection#75131010065b0710061a00071610351b07165b121a03"><span class="__cf_email__" data-cfemail="62040707114c1007110d17100107220c10014c050d14">[email protected]</span></a>. In addition to 
publication in the Federal Register, the final rule will be available 
on the Internet at regulations.gov.
    The NRC is proposing to amend 10 CFR parts 170 and 171 as discussed 
in Sections II.A and II.B of this document.

A. Amendments to 10 CFR Part 170: Fees for Facilities, Materials, 
Import and Export Licenses, and Other Regulatory Services Under the 
Atomic Energy Act of 1954, As Amended

    In FY 2009, the NRC is proposing to increase the hourly rate to 
recover the full cost of activities under part 170, and using this rate 
to calculate ``flat'' application fees. The NRC is also proposing to 
revise descriptions of some fee categories.
    The NRC is proposing the following changes:
1. Hourly Rate
    The NRC's hourly rate is used in assessing full cost fees for 
specific services provided, as well as flat fees for certain 
application reviews. The NRC is proposing to change the FY 2009 hourly 
rate to $257. This rate would be applicable to all activities for which 
fees are assessed under Sec. Sec.  170.21 and 170.31. The FY 2009 
proposed hourly rate is higher than the hourly rate of $238 in the FY 
2008 final fee rule. The increase is primarily due to the higher FY 
2009 budget supporting increased regulatory and infrastructure support 
workload for reactor license renewals and applications from new uranium 
recovery and enrichment facilities. The hourly rate calculation is 
described in further detail in the following paragraphs.
    The NRC's hourly rate is derived by dividing the sum of recoverable 
budgeted resources for (1) mission direct program salaries and 
benefits; (2) mission indirect salaries and benefits and contract 
activity; and (3) agency management and support and Inspector General 
(IG), by mission direct full-time equivalent (FTE) hours. The mission 
direct FTE hours are the product of the mission direct FTE times the 
hours per direct FTE. The only budgeted resources excluded from the 
hourly rate are those for mission direct contract activities.
    In FY 2009, the NRC is proposing to use 1,371 hours per direct FTE, 
same as FY 2008, to calculate the hourly fees. The NRC has reviewed 
data from its time and labor system to determine if the annual direct 
hours worked per direct FTE estimate requires updating for the FY 2009 
fee rule. Based on this review of the most recent data available, the 
NRC determined that 1,371 hours is the best estimate of direct hours 
worked annually per direct FTE. This estimate excludes all non-direct 
activities, such as training, general administration, and leave.
    Table II shows the results of the hourly rate calculation 
methodology. (Individual values may not sum to totals due to rounding.)

                Table II--FY 2009 Hourly Rate Calculation
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Mission Direct Program Salaries & Benefits..............         $322.0M
Mission Indirect Salaries & Benefits, and Contract                129.2M
 Activity...............................................
Agency Management and Support, and IG...................          316.5M
                                                         ---------------
    Subtotal............................................         $767.7M
Less Offsetting Receipts................................           -0.1M
                                                         ---------------
    Total Budget Included in Hourly Rate................         $767.6M
Mission Direct FTEs.....................................           2,180
Professional Hourly Rate (Total Budget Included in                  $257
 Hourly Rate divided by Mission Direct FTE Hours).......
------------------------------------------------------------------------

    As shown in Table II, dividing the $767.6 million budgeted amount 
(rounded) included in the hourly rate by total mission direct FTE hours 
(2,180 FTE times 1,371 hours) results in an hourly rate of $257. The 
hourly rate is rounded to the nearest whole dollar.
2. ``Flat'' Application Fee Changes
    The NRC is proposing to adjust the current flat application fees in 
Sec. Sec.  170.21 and 170.31 to reflect the revised hourly rate of 
$257. These flat fees are calculated by multiplying the average 
professional staff hours needed to process the licensing actions by the 
proposed professional hourly rate for FY 2009.
    Biennially, the NRC evaluates historical professional staff hours 
used to process a new license application for materials users fee 
categories subject to flat application fees. This is in accordance with 
the requirements of the Chief Financial Officer's Act. The NRC 
conducted this biennial review for the FY 2009 fee rule which also 
included license and amendment applications for import and export 
licenses.
    Evaluation of the historical data in FY 2009 shows that the average 
number of professional staff hours required to complete licensing 
actions in the materials program should be increased in some fee 
categories and decreased in others to more accurately reflect current 
data for completing these licensing

[[Page 9133]]

actions. The average number of professional staff hours needed to 
complete new licensing actions was last updated for the FY 2007 final 
fee rule. Thus, the revised average professional staff hours in this 
fee rule reflect the changes in the NRC licensing review program that 
have occurred since that time.
    The higher hourly rate of $257 is the main reason for the increases 
in the application fees. Application fees for some fee categories 
(2.B., 3.G., 3.O., 3.R.1., 4.B., 5.A., 8.A., 9.C., and 10 B. under 
Sec.  170.31) also increase because of the results of the biennial 
review, which showed an increase in average time to process these types 
of license applications. The decrease in fees for 7 fee categories 
(3.C., 3.H., 3.N., 3.S., 9.A., 9.B., and 10.B. under Sec.  170.31) is 
due to a decrease in average time to process these types of 
applications.
    The amounts of the materials licensing flat fees are rounded so 
that the fees would be convenient to the user and the effects of 
rounding would be de minimis (minimal). Fees under $1,000 are rounded 
to the nearest $10, fees that are greater than $1,000 but less than 
$100,000 are rounded to the nearest $100, and fees that are greater 
than $100,000 are rounded to the nearest $1,000.
    The proposed licensing flat fees are applicable for fee categories 
K.1. through K.5. of Sec.  170.21, and fee categories 1.C., 1.D., 2.B., 
2.C., 3.A. through 3.S., 4.B. through 9.D., 10.B, 15.A. through 15.R., 
16, and 17 of Sec.  170.31. Applications filed on or after the 
effective date of the FY 2009 final fee rule would be subject to the 
revised fees in the final rule.
3. Fee Category Changes
    The NRC is proposing to revise the fee categories for uranium 
recovery facilities in Sec.  170.31. The new fee categories will better 
reflect the NRC's regulatory effort expended for the different types of 
facilities, both existing and planned. A more detailed discussion 
follows in II.B.3.b. `Uranium Recovery Facilities', below.
    In addition, the NRC is proposing to revise the description for two 
fee categories, 7.A. and 17 in Sec.  170.31. The NRC proposes to amend 
fee category 7.A., related to medical licenses, to more precisely state 
which medical devices it covers. Currently, the fee category applies to 
teletherapy devices. The NRC has historically included gamma 
stereotactic radiosurgery units (gamma knives) in this category per 
NUREG 1556, Volume 20, Appendix G. This amendment explicitly provides 
that fee category 7.A. include gamma knives and other similar beam 
therapy devices. The fee category 17 for master materials license is 
being expanded to include non-government entities with multi-site 
licenses.
    The new fee category descriptions do not represent any additions to 
the types of licenses regulated by NRC. These changes will help clarify 
the types of licenses covered under specific categories for NRC 
licensees.
4. Administrative Amendments
    In response to a number of questions on specific sub-sections 
related to fee exemptions for special projects, the NRC is proposing to 
simplify (170.11 for ease of reading. There is no change to the NRC's 
fee exemption policy.
    In summary, the NRC is proposing to make the following changes to 
10 CFR part 170
    1. Establish revised professional hourly rate to use in assessing 
fees for specific services;
    2. Revise the license application fees to reflect the proposed FY 
2009 hourly rate;
    3. Revise some fee categories to better reflect NRC's regulatory 
effort, and
    4. Make certain administrative changes for purposes of 
clarification.

B. Amendments to 10 CFR Part 171: Annual Fees for Reactor Licenses and 
Fuel Cycle Licenses and Materials Licenses, Including Holders of 
Certificates of Compliance, Registrations, and Quality Assurance 
Program Approvals and Government Agencies Licensed by the NRC

    The FY 2009 proposed annual fees reflect NRC's use of its fee 
relief to reduce all licensees' annual fees and changes in the number 
of NRC licensees. This rulemaking also proposes to establish 
rebaselined annual fees based on the H.R. 7324. The proposed amendments 
are described as follows:
1. Application of ``Fee-Relief/Surcharge''
    The NRC is proposing to use its fee relief to reduce all licensees' 
annual fees, based on their percent of the budget.
    The NRC applies the 10 percent of its budget that is excluded from 
fee recovery under OBRA-90, as amended (fee relief), to offset the 
total budget allocated for activities which do not directly benefit 
current NRC licensees. The budget for these fee-relief activities are 
totaled, and then reduced by the amount of the NRC's fee relief. Any 
remaining fee-relief activities budget is allocated to all licensees' 
annual fees, based on their percent of the budget (i.e., over 80 
percent is allocated to power reactors each year).
    In FY 2009, the NRC's 10 percent fee relief exceeds the total 
budget for fee-relief activities by $2.9 million. In FY 2008, the 10 
percent fee relief exceeded the total budget by $8.9 million. The 
excess fee relief in FY 2009 is lower compared with FY 2008 primarily 
due to higher FY 2009 budget resources for Agreement States support and 
international activities.
    As in FY 2008, the NRC is using the $2.9 million fee relief to 
reduce all licensees' annual fees, based on their percent of the fee 
recoverable budget authority. This is consistent with the existing fee 
methodology, in that the benefits of the NRC's fee relief are allocated 
to licensees in the same manner as deficit was allocated as surcharge 
when the NRC did not receive enough fee relief to pay for fee-relief 
activities. In FY 2009, the power reactors class of licensees will 
receive approximately 88 percent of the fee relief based on their share 
of the NRC fee recoverable budget authority.
    The FY 2009 budgeted resources for NRC's fee-relief activities are 
$93.8 million. The NRC's total fee relief in FY 2009 is $96.7 million, 
leaving $2.9 million in fee relief to be used to reduce all licensees' 
annual fees. These values are shown in Table III. (Individual values 
may not sum to totals due to rounding.)

                    Table III--Fee-Relief Activities
                          [Dollars in millions]
------------------------------------------------------------------------
                                                              FY 2009
                                                          budgeted costs
------------------------------------------------------------------------
1. Activities not attributable to an existing NRC
 licensee or class of licensee:
    a. International activities.........................           $17.6
    b. Agreement State oversight........................            11.2

[[Page 9134]]

 
    c. Scholarships and Fellowships.....................            15.0
2. Activities not assessed part 170 licensing and
 inspection fees or part 171 annual fees based on
 existing law or Commission policy:
    a. Fee exemption for nonprofit educational                      11.5
     institutions.......................................
    b. Costs not recovered from small entities under 10              3.9
     CFR 171.16(c)......................................
    c. Regulatory support to Agreement States...........            17.5
    d. Generic decommissioning/reclamation (not related             13.7
     to the power reactor and spent fuel storage fee
     classes)...........................................
    e. In situ leach rulemaking and unregistered general             3.5
     licensees..........................................
                                                         ---------------
        Total fee-relief activities.....................           $93.8
Less 10 percent of NRC's FY 2009 total budget (less non-           -96.7
 fee items).............................................
                                                         ---------------
    Fee Relief to be Allocated to All Licensees' Annual            $-2.9
     Fees...............................................
------------------------------------------------------------------------

    Table IV shows how the NRC is allocating the $2.9 million in fee 
relief to each license fee class. As explained previously, the NRC is 
allocating this fee relief to each license fee class based on the 
percent of the budget for that fee class compared to the NRC's total 
budget. The fee relief is used to partially offset the required annual 
fee recovery from each fee class.
    Separately, the NRC has continued to allocate the low-level waste 
(LLW) surcharge based on the volume of LLW disposal of three classes of 
licenses, operating reactors, fuel facilities, and materials users. 
Table IV also shows the allocation of the LLW surcharge activity. 
Because LLW activities support NRC licensees, the costs of these 
activities are not offset by the NRC's fee relief. For FY 2009, the 
total budget allocated for LLW activity is $2.3 million. (Individual 
values may not sum to totals due to rounding.)

                         Table IV--Allocation of Fee-Relief Activities and LLW surcharge
----------------------------------------------------------------------------------------------------------------
                                                       LLW surcharge              Fee relief            Total
                                                ----------------------------------------------------------------
                                                   Percent         $M        Percent         $M           $M
----------------------------------------------------------------------------------------------------------------
Operating Power Reactors.......................         54.0          1.2           88         -2.6         -1.3
Spent Fuel Storage/Reactor Decommissioning.....  ...........  ...........          2.5         -0.1         -0.1
Test and Research Reactors.....................  ...........  ...........          0.1          0.0          0.0
Fuel Facilities................................         15.0          0.3          5.2         -0.2          0.2
Materials Users................................         31.0          0.7          3.0         -0.1          0.6
Transportation.................................  ...........  ...........          0.4          0.0          0.0
Uranium Recovery...............................  ...........  ...........          0.8          0.0          0.0
                                                ----------------------------------------------------------------
    Total......................................        100.0          2.3        100.0         -2.9         -0.6
----------------------------------------------------------------------------------------------------------------

    In FY 2009, the LLW surcharge exceeded the fee relief for two fee 
classes, fuel facilities and materials users. The net surcharge will be 
included in the annual fee for fuel facility and materials users 
licensees.
2. Agreement State Activities
    By letter dated June 12, 2008, Governor Timothy Kaine of the 
Commonwealth of Virginia requested that the NRC enter into an Agreement 
with the State as authorized by Section 274 of the Atomic Energy Act of 
1954, as amended. The final Agreement package is before the Commission 
for approval and if approved, the Agreement is expected to take effect 
by March 31, 2009. This will result in the transfer of approximately 
380 licenses from the NRC to the Commonwealth of Virginia.
    Note that the continuing costs of oversight and regulatory support 
for the Commonwealth of Virginia, as for any other Agreement State, are 
recovered as fee-relief activities consistent with existing policy. The 
budgeted resources for the regulatory support of Agreement State 
licensees are prorated to the fee-relief activity based on the percent 
of total licensees in Agreement States. The NRC proposes to update the 
proration percentage in its fee calculation to make sure that resources 
are allocated equitably between the NRC materials users fee class and 
the regulatory support to Agreement States fee-relief category. 
Accordingly, in anticipation of the Commonwealth of Virginia becoming 
an Agreement State, the NRC has increased the percentage of materials 
users regulatory support costs prorated to the fee-relief activity from 
82 percent in FY 2008 to 85 percent in FY 2009. The resources for 
licensing and inspection activities supporting NRC licensees in the 
materials users fee class are not prorated to the fee-relief activity.
    The number of NRC materials users licensees has been updated to 
reflect the transfer of licensees to the Commonwealth of Virginia. 
Because of the effective date of March 31, 2009, the approximately 380 
licensees transferring to the Commonwealth of Virginia will be subject 
to one-half of their annual fee for FY 2009. The number of materials 
users licensees are revised to reflect that the NRC will still collect 
one-half of the annual fee from these licensees.
    This is not a substantive policy change, but rather a calculation 
change that will result in a more accurate estimate of the actual costs 
of supporting Agreement State activities. If the Commonwealth of 
Virginia does not become an Agreement State by the

[[Page 9135]]

publication of the final fee rule, the NRC will adjust the calculation 
of the FY 2009 annual fees based on the latest information available at 
that time. Any changes will be discussed in the final fee rule.
    Also, Governor Jon Corizine of the State of New Jersey has by 
letter dated October 16, 2008 formally requested that the NRC enter 
into an Agreement with his state. If approved by the Commission, this 
Agreement is expected to take effect by September 30, 2009. 
Approximately 500 NRC licensees will be transferred to the State of New 
Jersey. Because the expected effective date is September 30, 2009, 
these licensees will be assessed annual fees by NRC for the full year 
of FY 2009. Therefore, no changes to the FY 2009 fees or the number of 
NRC licensees have been made for this potential event.
3. Revised Annual Fees
    The NRC is proposing to revise its annual fees in Sec. Sec.  171.15 
and 171.16 for FY 2009 to recover approximately 90 percent of the NRC's 
FY 2009 budget authority after subtracting the non-fee amounts and the 
estimated amount to be recovered through part 170 fees. The part 170 
estimate for this proposed rule increased by $28.5 million from the FY 
2008 fee rule based on the latest invoice data available. The total 
amount to be recovered through annual fees for FY 2009 is $544.6 
million. The required annual fee collection in FY 2008 was $468.9 
million.
    The Commission has determined (71 FR 30733; May 30, 2006) that the 
agency should proceed with a presumption in favor of rebaselining when 
calculating annual fees each year. Under this method, the NRC's budget 
is analyzed in detail and budgeted resources are allocated to fee 
classes and categories of licensees. The Commission expects that most 
years there will be budget and other changes that warrant the use of 
the rebaselining method.
    As compared with FY 2008 annual fees, rebaselined fees are higher 
for three classes of licensees (power reactors, non-power reactors, and 
fuel facilities), and lower for two classes of licensees (spent fuel 
storage/reactor decommissioning and transportation). Within the 
materials users and uranium recovery fee classes, annual fees for most 
licensees increase, while annual fees for some licensees decrease.
    The NRC's total fee recoverable budget, as mandated by law, is 
approximately $92 million larger in FY 2009 as compared with FY 2008. 
Much of this increase is for reactor renewal activities, new uranium 
recovery facility applications, new uranium enrichment facility 
applications, and materials licensing. The FY 2009 budget was allocated 
to the fee classes that the budgeted activities support. As such, the 
proposed annual fees for operating reactor, non-power reactor, fuel 
facility, most uranium recovery and small materials licensees 
increases. Also in FY 2009, generic NRC resources supporting new 
uranium recovery applications are included in the budget allocated to 
operating power reactors and fuel facility fee classes because these 
licensees will potentially benefit from increased production of uranium 
milled by new uranium recovery facilities. The impact of this 
allocation on the operating reactors and fuel facilities annual fees is 
less than one percent.
    The factors affecting all annual fees include the distribution of 
budgeted costs to the different classes of licenses (based on the 
specific activities NRC will perform in FY 2009), the estimated part 
170 collections for the various classes of licenses, and allocation of 
the fee relief to all fee classes. The percentage of the NRC's budget 
not subject to fee recovery remained unchanged at 10 percent from FY 
2008 to FY 2009.
    Table V shows the rebaselined annual fees for FY 2009 for a 
representative list of categories of licenses. The FY 2008 fee is also 
shown for comparative purposes.

              Table V--Rebaselined Annual Fees for FY 2009
------------------------------------------------------------------------
                                                              FY 2009
       Class/category of licenses             FY 2008        proposed
                                            annual fee      annual fee
------------------------------------------------------------------------
 Operating Power Reactors (Including          $4,167,000      $4,735,000
 Spent Fuel Storage/Reactor
 Decommissioning Annual Fee)............
 Spent Fuel Storage/Reactor                      135,000         127,000
 Decommissioning........................
 Test and Research Reactors (Non-power            76,500         124,500
 Reactors)..............................
 High Enriched Uranium Fuel Facility....       3,007,000       4,721,000
 Low Enriched Uranium Fuel Facility.....         899,000       1,659,000
 UFCO6 Conversion Facility..............         589,000         975,000
 Conventional Mills.....................          10,300          32,200
Typical Materials Users:
     Radiographers (Category 3O)........          11,100          23,100
     Well Loggers (Category 5A).........           3,400           9,900
     Gauge Users (Category 3P)..........           2,100           3,800
     Broad Scope Medical (Category 7B)..          22,900          36,800
------------------------------------------------------------------------

    The work papers which support this proposed rule show in detail the 
allocation of NRC's budgeted resources for each class of licenses and 
how the fees are calculated. The reports included in these work papers 
summarize the FY 2009 budgeted FTE and contract dollars allocated to 
each fee class and fee-relief activities category at the planned 
activity and program level, and compare these allocations to those used 
to develop final FY 2008 fees. The work papers are available 
electronically at the NRC's Electronic Reading Room on the Internet at 
Web site address http://www.nrc.gov/reading-rm/adams.html. The work 
papers may also be examined at the NRC PDR located at One White Flint 
North, Room O-1F22, 11555 Rockville Pike, Rockville, Maryland.
    The budgeted costs allocated to each class of licenses and the 
calculations of the rebaselined fees are described in paragraphs a. 
through h. of this Section. Individual values in the Tables presented 
in this Section may not sum to totals due to rounding.
a. Fuel Facilities
    The FY 2009 budgeted cost to be recovered in the annual fees 
assessment to the fuel facility class of licenses [which includes 
licensees in fee categories 1.A.(1)(a), 1.A.(1)(b), 1.A.(2)(a), 
1.A.(2)(b), 1.A.(2)(c), 1.E., and 2.A.(1), under Sec.  171.16] is 
approximately $23.1 million. This value is based on the full cost of 
budgeted resources associated with all activities that support this fee 
class, which is reduced by estimated part 170

[[Page 9136]]

collections and adjusted for allocated generic transportation 
resources, and fee relief. In FY 2009, the LLW surcharge for fuel 
facilities exceeds the allocated fee-relief (see Table IV in Section 
II.B.1., ``Application of ``Fee Relief/Surcharge'' of this document). 
The summary calculations used to derive this value are presented in 
Table VI for FY 2009, with FY 2008 values shown for comparison.

      Table VI--Annual Fee Summary Calculations for Fuel Facilities
                          [Dollars in millions]
------------------------------------------------------------------------
                                                  FY 2008      FY 2009
            Summary fee calculation                final       proposed
------------------------------------------------------------------------
 Total budgeted resources.....................        $31.5        $44.6
 Less estimated part 170 receipts.............        -17.2        -21.8
                                               -------------------------
     Net part 171 resources...................         14.3         22.8
 Allocated generic transportation.............         +0.5         +0.4
 Allocated fee relief/surcharge...............         -0.1         +0.2
 Billing adjustments..........................         -0.8         -0.3
                                               -------------------------
     Total required annual fee recovery.......         13.9         23.1
------------------------------------------------------------------------

    The increase in FY 2009 total budgeted resources allocated to this 
fee class compared with FY 2008 is primarily due to increases in 
resources for new uranium enrichment facility licensing activities 
partially offset by a higher part 170 revenue estimate.
    The total required annual fee recovery amount is allocated to the 
individual fuel facility licensees based on the effort/fee 
determination matrix developed for the FY 1999 final fee rule (64 FR 
31447; June 10, 1999). In the matrix included in the NRC publicly 
available work papers, licensees are grouped into categories according 
to their licensed activities (i.e., nuclear material enrichment, 
processing operations, and material form) and according to the level, 
scope, depth of coverage, and rigor of generic regulatory programmatic 
effort applicable to each category from a safety and safeguards 
perspective. This methodology can be applied to determine fees for new 
licensees, current licensees, licensees in unique license situations, 
and certificate holders.
    This methodology is adaptable to changes in the number of licensees 
or certificate holders, licensed or certified material and/or 
activities, and total programmatic resources to be recovered through 
annual fees. When a license or certificate is modified, it may result 
in a change of category for a particular fuel facility licensee as a 
result of the methodology used in the fuel facility effort/fee matrix. 
Consequently, this change may also have an effect on the fees assessed 
to other fuel facility licensees and certificate holders. For example, 
if a fuel facility licensee amends its license/certificate (e.g., 
decommissioning or license termination) that results in it not being 
subject to part 171 costs applicable to the fee class, then the 
budgeted costs for the safety and/or safeguards components will be 
spread among the remaining fuel facility licensees/certificate holders.
    The methodology is applied as follows. First, a fee category is 
assigned based on the nuclear material and activity authorized by 
license or certificate. Although a licensee/certificate holder may 
elect not to fully use a license/certificate, the license/certificate 
is still used as the source for determining authorized nuclear material 
possession and use/activity. Second, the category and license/
certificate information are used to determine where the licensee/
certificate holder fits into the matrix. The matrix depicts the 
categorization of licensees/certificate holders by authorized material 
types and use/activities.
    Each year, the NRC's fuel facility project managers and regulatory 
analysts determine the level of effort associated with regulating each 
of these facilities. This is done by assigning, for each fuel facility, 
separate effort factors for the safety and safeguards activities 
associated with each type of regulatory activity. The matrix includes 
ten types of regulatory activities, including enrichment and scrap/
waste related activities (see the work papers for the complete list). 
Effort factors are assigned as follows: One (low regulatory effort), 
five (moderate regulatory effort), and ten (high regulatory effort). 
These effort factors are then totaled for each fee category, so that 
each fee category has a total effort factor for safety activities and a 
total effort factor for safeguards activities.
    The effort factors for the various fuel facility fee categories are 
summarized in Table VII. The value of the effort factors shown, as well 
as the percent of the total effort factor for all fuel facilities, 
reflects the total regulatory effort for each fee category (not per 
facility). Note that the effort factors for the High Enriched Uranium 
Fuel (HEU) fee category have decreased from FY 2008. The safety and 
safeguards factors decreased in FY 2009 to reflect process changes such 
as HEU downblending and liquid UF<INF>6</INF> workload. Taking into 
account both of these changes, the total safety and safeguards effort 
factor change is relatively small.

                                  Table VII--Effort Factors for Fuel Facilities
----------------------------------------------------------------------------------------------------------------
                                                                                    Effort factors (percent of
                                                                     Number of                total)
                  Facility type (fee category)                      facilities   -------------------------------
                                                                                      Safety        Safeguards
----------------------------------------------------------------------------------------------------------------
 High Enriched Uranium Fuel (1.A.(1)(a))........................               2       87 (33.3)       97 (51.1)
 Uranium Enrichment (1.E).......................................               2       70 (26.8)       40 (21.1)
 Low Enriched Uranium Fuel (1.A.(1)(b)).........................               3       71 (27.2)       26 (13.7)
 UF6 Conversion (2.A.(1)).......................................               1        12 (4.6)         7 (3.7)
 Limited Operations (1.A.(2)(a))................................               1        12 (4.6)         3 (1.6)

[[Page 9137]]

 
 Gas Centrifuge Enrichment Demonstration (1.A.(2)(b))...........               1         3 (1.1)        15 (7.9)
 Hot Cell (1.A.(2)(c))..........................................               1         6 (2.3)         2 (1.1)
----------------------------------------------------------------------------------------------------------------

    The budgeted resources before the surcharge for safety activities 
($13,283,085) are allocated to each fee category based on its percent 
of the total regulatory effort for safety activities. For example, if 
the total effort factor for safety activities for all fuel facilities 
is 100, and the total effort factor for safety activities for a given 
fee category is 10, that fee category will be allocated 10 percent of 
the total budgeted resources for safety activities. Similarly, the 
budgeted resources before the surcharge for safeguards activities 
($9,669,679) are allocated to each fee category based on its percent of 
the total regulatory effort for safeguards activities. The fuel 
facility fee class' portion of the surcharge ($192,336) is allocated to 
each fee category based on its percent of the total regulatory effort 
for both safety and safeguards activities. The annual fee per licensee 
is then calculated by dividing the total allocated budgeted resources 
for the fee category by the number of licensees in that fee category as 
summarized in Table VIII.

               Table VIII--Annual Fees for Fuel Facilities
------------------------------------------------------------------------
                                                          FY 2009 annual
              Facility type (fee category)                      fee
------------------------------------------------------------------------
 High Enriched Uranium Fuel (1.A.(1)(a))................      $4,721,000
 Uranium Enrichment (1.E.)..............................       2,823,000
 Low Enriched Uranium (1.A.(1)(b))......................       1,659,000
 UF6 Conversion (2.A.(1))...............................         975,000
 Gas Centrifuge Enrichment Demonstration (1.A.(2)(b))...         924,000
 Limited Operations Facility (1.A.(2)(a))...............         770,000
 Hot Cell (and others) (1.A.(2)(c)).....................         411,000
------------------------------------------------------------------------

    The NRC does not expect to authorize operation of any new uranium 
enrichment facility in FY 2009. The annual fee applicable to any type 
of new uranium enrichment facility is the annual fee in Sec.  171.16, 
fee category 1.E., Uranium Enrichment, unless the NRC establishes a new 
fee category for the facility in a subsequent rulemaking.
b. Uranium Recovery Facilities
    The total FY 2009 budgeted cost to be recovered through annual fees 
assessed to the uranium recovery class [which includes licensees in fee 
categories 2.A.(2)(a), 2.A.(2)(b), 2.A.(2)(c), 2.A.(2)(d), 2.A.(2)(e), 
2.A.(3), 2.A.(4), 2.A.(5) and 18.B., under Sec.  171.16], is 
approximately $0.52 million. The derivation of this value is shown in 
Table IX, with FY 2008 values shown for comparison purposes.

     Table IX--Annual Fee Summary Calculations for Uranium Recovery
                               Facilities
                          [Dollars in millions]
------------------------------------------------------------------------
                                                  FY 2008      FY 2009
           Summary fee calculations                final       proposed
------------------------------------------------------------------------
 Total budgeted resources.....................        $2.56        $6.97
 Less estimated part 170 receipts.............        -2.02        -6.38
                                               -------------------------
     Net part 171 resources...................        $0.54        $0.59
 Allocated generic transportation.............         +N/A         +N/A
 Allocated fee relief.........................        -0.03        -0.02
 Billing adjustments..........................        -0.06        -0.05
                                               -------------------------
     Total required annual fee recovery.......         0.46         0.52
------------------------------------------------------------------------

    The increase in the total required annual fee recovery is mainly 
due to an increase in uranium recovery licensing and inspection 
resources for the existing licensees. In FY 2009, NRC is proposing to 
exclude the generic budget resources supporting applications for new 
uranium recovery facilities from the annual fee charged to current 
uranium recovery licensees. Instead the budget resources would be 
allocated to operating reactors and fuel facility licensees since these 
fee classes would potentially benefit from increased production of the 
uranium milled by the new facilities. The generic resources supporting 
the new uranium recovery facilities do not benefit the existing uranium 
recovery licensees.
    Since FY 2002, the NRC has computed the annual fee for the uranium 
recovery fee class by allocating the total annual fee amount for this 
fee class, between DOE and the other licensees in this fee class. The 
NRC regulates DOE's Title I and Title II activities under the Uranium 
Mill Tailings Radiation Control Act (UMTRCA). The Congress established 
the two programs, Title I and Title II under UMTRCA, to protect the 
public and the environment from uranium milling. The UMTRCA Title I 
program is for remedial action at abandoned mill tailings sites where 
tailings resulted largely from production of uranium for the weapons 
program. The NRC also regulates DOE's UMTRCA Title II program which is 
directed toward uranium mill sites licensed by the NRC or Agreement 
States in or after 1978.
    In FY 2009, 35 percent of the total annual fee amount, less 
$246,563 specifically budgeted for Title I activities, is allocated to 
DOE's UMTRCA facilities. The remaining 65 percent of the total annual 
fee (less the amounts specifically budgeted for Title I activities) is 
allocated to other licensees. The reduction in resources for licensing 
the DOE is based on the reduced effort expended for DOE UMTRCA. This is 
a change from FY

[[Page 9138]]

2008 when the distribution of the annual fee was 40 percent to DOE and 
60 percent to non-DOE licensees. The change reflects NRC's current 
level of effort. This change in the distribution of uranium recovery 
fee class resources between non-DOE uranium recovery facilities and DOE 
results in a decrease in annual fee for the DOE compared to the 
increase in annual fee for non-DOE facilities. Of the required annual 
fee collections, $342,000 (rounded) would be assessed to DOE for 
licensing its UMTRCA activities as fee category 18.B in Sec.  170.16.
    The remaining $176,000 (rounded) would be recovered through annual 
fees assessed to the other licensees in this fee class (i.e., 
conventional mills, in-situ recovery (ISR) facilities), 11e.(2) mill 
tailings disposal facilities (incidental to existing tailings sites), 
and a uranium water treatment facility. Beginning in FY 2009, NRC is 
proposing to replace the existing single fee category, 2.A.(2)(b) for 
uranium ISR facilities with four fee categories based on the type of 
ISR facilities. The addition of the new fee categories is needed to 
reflect the diverse types of uranium recovery facilities planned for 
construction and operation in the near future. Additionally, the new 
fee categories will better reflect the NRC's regulatory benefit 
provided to the different types of facilities, both existing and 
planned.
    The revised fee category, 2.A.(2)(b), would be for an ISR 
yellowcake facility with zero to three satellites. These facilities 
include a central processing plant (CPP) that includes all the 
equipment necessary to collect uranium on resin, strip uranium from the 
resin, and process the uranium into a yellowcake slurry or dried 
yellowcake powder. These facilities may also receive resins from up to 
three satellite facilities operated by the same company for further 
processing of the contained uranium into yellowcake.
    The new 2.A.(2)(c) fee category would be for an ISR yellowcake 
facility with more than three satellites. These facilities have a CPP 
with the same equipment as the fee category as stated previously, but 
have four or more satellite facilities, which necessitates a 
correspondingly greater allocation of the staff's generic resources.
    The new 2.A.(2)(d) fee category would be for a stand-alone ISR 
Resin facility which performs ISR recovery operations and includes 
equipment for the collection of dissolved uranium from onsite 
underground ore bodies onto ion exchange resins. The resins are then 
transported to another company's facility for further processing of the 
collected uranium into yellowcake.
    The new fee category, 2.A.(2)(e), would be for a Resin Toll Milling 
Facility. These facilities do not conduct any onsite recovery of 
uranium but consist of a CPP for the purpose of processing resins from 
other ISR facilities into yellowcake. Allocation of generic resources 
for these facilities would be less than that allocated for the other 
categories of ISR facilities.
    The annual fee being assessed to DOE includes recovery of the costs 
specifically budgeted for NRC's Title I activities plus 35 percent of 
the remaining annual fee amount, including the fee-relief and generic/
other costs, for the uranium recovery class. The remaining 65 percent 
of the fee-relief and generic/other costs are assessed to the other NRC 
licensees in this fee class that are subject to annual fees. The costs 
to be recovered through annual fees assessed to the uranium recovery 
class are shown in Table X.

Table X--Costs Recovered Through Annual Fees; Uranium Recovery Fee Class
------------------------------------------------------------------------
 
------------------------------------------------------------------------
DOE annual fee mount (UMTRCA title I and title II) general licenses:
------------------------------------------------------------------------
 UMTRCA Title I budgeted costs..........................        $246,563
 35 percent of generic/other uranium recovery budgeted           103,269
 costs..................................................
 35 percent of uranium recovery fee-relief..............          -8,241
                                                         ---------------
     Total Annual Fee Amount for DOE (rounded)..........         342,000
------------------------------------------------------------------------
Annual fee amount for other uranium recovery licenses:
------------------------------------------------------------------------
 65 percent of generic/other uranium recovery budgeted           191,785
 costs less the amounts specifically budgeted for Title
 I activities...........................................
 65 percent of uranium recovery fee-relief..............         -15,304
                                                         ---------------
     Total Annual Fee Amount for Other Uranium Recovery          176,481
     Licenses...........................................
------------------------------------------------------------------------

    The NRC will continue to use a matrix (which is included in the 
supporting work papers) to determine the level of effort associated 
with conducting the generic regulatory actions for the different (non-
DOE) licensees in this fee class. The weights derived in this matrix 
are used to allocate the approximately $176,000, annual fee amount to 
these licensees. The use of this uranium recovery annual fee matrix was 
established in the FY 1995 final fee rule (60 FR 32217; June 20, 1995). 
The FY 2009 matrix is described as follows.
    First, the methodology identifies the categories of licenses 
included in this fee class (besides DOE). In FY 2009, these categories 
are conventional uranium mills and heap leach facilities, uranium 
solution mining and resin ISR facilities mill tailings disposal 
facilities (11e.(2) disposal facilities), and uranium water treatment 
facilities.
    Second, the matrix identifies the types of operating activities 
that support and benefit these licensees. In FY 2009, the activities 
related to generic decommissioning/reclamation are not included in the 
matrix, because generic decommissioning/reclamation activities are 
included in the surcharge, and therefore need not be a factor in 
determining annual fees. The activities included in the FY 2009 matrix 
are operations, waste operations, and groundwater protection. The 
relative weight of each type of activity is then determined, based on 
the regulatory resources associated with each activity. The operations, 
waste operations, and groundwater protection activities have weights of 
0, 5, and 10, respectively, in the FY 2009 matrix.
    Each year, the NRC determines the level of benefit to each licensee 
for generic uranium recovery program activities for each type of 
generic activity in the matrix. This is done by assigning, for each fee 
category, separate benefit factors for each type of regulatory activity 
in the matrix. Benefit factors are assigned on a scale of 0 to 10 as 
follows: zero (no regulatory benefit), five (moderate regulatory 
benefit), and ten (high regulatory benefit). These benefit factors are 
first multiplied by the relative weight assigned to each activity 
(described previously). Total benefit factors by fee category, and per 
licensee in each fee category, are then calculated. These benefit 
factors thus reflect the relative regulatory benefit associated with 
each licensee and fee category.
    The benefit factors per licensee and per fee category, for each of 
the non-DOE fee categories included in the uranium recovery fee class, 
are as follows:

[[Page 9139]]



                             Table XI--Benefit Factors for Uranium Recovery Licenses
----------------------------------------------------------------------------------------------------------------
                                                     Number of    Benefit factor                  Benefit factor
                  Fee category                       licensees     per licensee     Total value    percent total
----------------------------------------------------------------------------------------------------------------
Conventional and Heap Leach mills...............               1             200             200              18
Basic In Situ Recovery facilities...............               3             190             570              52
Expanded In Situ Recovery facilities............               1             215             215              20
11e.(2) disposal incidental to existing tailings               1              65              65               6
 sites..........................................
Uranium water treatment.........................               1              45              45               4
----------------------------------------------------------------------------------------------------------------

    The annual fee per licensee is calculated by dividing the total 
allocated budgeted resources for the fee category by the number of 
licensees in that fee category as summarized in Table XII. Applying 
these factors to the approximately $176,000 in budgeted costs to be 
recovered from non-DOE uranium recovery licensees results in the 
following annual fees for FY 2009:

 Table XII--Annual Fees for Uranium Recovery Licensees (Other Than DOE)
------------------------------------------------------------------------
                                                              FY 2009
              Facility type (fee category)                  annual fee
------------------------------------------------------------------------
Conventional and Heap Leach mills (2.A.(2)(a))..........         $32,200
Basic In Situ Recovery facilities (2.A.(2)(b))..........          30,600
Expanded In Situ Recovery facilities (2.A.(2)(c)).......          34,700
11e.(2) disposal incidental to existing tailings sites            10,500
 (2.A.(4))..............................................
Uranium water treatment (2.A.(5)).......................           7,300
------------------------------------------------------------------------

c. Operating Power Reactors
    The $479.2 million in budgeted costs to be recovered through FY 
2009 annual fees assessed to the power reactor class was calculated as 
shown in Table XIII. FY 2008 values are shown for comparison.

Table XIII--Annual Fee Summary Calculations for Operating Power Reactors
                          [Dollars in millions]
------------------------------------------------------------------------
                                                              FY 2009
        Summary fee calculations           FY 2008 final     proposed
------------------------------------------------------------------------
Total budgeted resources................          $698.8          $761.4
Less estimated part 170 receipts........          -258.1          -276.6
                                         -------------------------------
    Net part 171 resources..............          $440.7          $484.8
Allocated generic transportation........           + 1.0           + 0.8
Allocated fee relief....................            -5.9            -1.3
Billing adjustments.....................           -16.5            -5.1
                                         -------------------------------
    Total required annual fee recovery..           419.3           479.2
------------------------------------------------------------------------

    The budgeted costs to be recovered through annual fees to power 
reactors are divided equally among the 104 power reactors licensed to 
operate. This results in a FY 2009 annual fee of $4,608,000 per 
reactor. Additionally, each power reactor licensed to operate would be 
assessed the FY 2009 spent fuel storage/reactor decommissioning annual 
fee of $127,000. This results in a total FY 2009 annual fee of 
$4,735,000 for each power reactor licensed to operate.
    The annual fee for power reactors increases in FY 2009 compared to 
FY 2008 primarily due to an increase in budgeted resources for 
licensing renewal activities and other licensing tasks. This increase 
is partially offset by the higher estimated part 170 collections and 
fee-relief adjustment. In FY 2009, the NRC estimates an increase in 
part 170 collections of about 7 percent for this fee class. These 
collections offset the required annual fee recovery amount by a total 
of approximately $276.6 million. The amended annual fees for power 
reactors are presented in Sec.  171.15.
d. Spent Fuel Storage/Reactor Decommissioning
    For FY 2009, budgeted costs of approximately $15.6 million for 
spent fuel storage/reactor decommissioning are to be recovered through 
annual fees assessed to part 50 power reactors, and to part 72 
licensees who do not hold a part 50 license. Those reactor licensees 
that have ceased operations and have no fuel onsite are not subject to 
these annual fees. Table XIV shows the calculation of this annual fee 
amount. FY 2008 values are shown for comparison.

[[Page 9140]]



 Table XIV--Annual Fee Summary Calculations for the Spent Fuel Storage/
                    Reactor Decommissioning Fee Class
                          [Dollars in millions]
------------------------------------------------------------------------
                                                              FY 2009
        Summary fee calculations           FY 2008 final     proposed
------------------------------------------------------------------------
Total budgeted resources................           $22.4           $21.1
Less estimated part 170 receipts........            -5.3            -5.5
                                         -------------------------------
    Net part 171 resources..............           $17.1           $15.6
Allocated generic transportation........           + 0.2           + 0.2
Allocated fee relief....................            -0.3            -0.1
Billing adjustments.....................           + 0.5            -0.1
                                         -------------------------------
    Total required annual fee recovery..            16.6            15.6
------------------------------------------------------------------------

    The required annual fee recovery amount is divided equally among 
123 licensees, resulting in a FY 2009 annual fee of $127,000 per 
licensee. The value of total budgeted resources for this fee class 
decreases in FY 2009 compared to FY 2008 due to a decrease in the 
budgeted resources for decommissioning and the fee-relief adjustment.
e. Test and Research Reactors (Non-power Reactors)
    Approximately $500,000 in budgeted costs is to be recovered through 
annual fees assessed to the test and research reactor class of licenses 
for FY 2009. Table XV summarizes the annual fee calculation for test 
and research reactors for FY 2009. FY 2008 values are shown for 
comparison.

Table XV--Annual Fee Summary Calculations for Test and Research Reactors
                          [Dollars in millions]
------------------------------------------------------------------------
                                                       FY 2008   FY 2009
               Summary fee calculations                 final   proposed
------------------------------------------------------------------------
Total budgeted resources.............................    $0.99     $1.22
Less estimated part 170 receipts.....................    -0.66     -0.72
                                                      ------------------
    Net part 171 resources...........................    $0.33     $0.50
Allocated generic transportation.....................   + 0.01    + 0.01
Allocated fee relief.................................    -0.01      0.00
Billing adjustments..................................    -0.02     -0.01
                                                      ------------------
    Total required annual fee recovery...............     0.31      0.50
------------------------------------------------------------------------

    This required annual fee recovery amount is divided equally among 
the four test and research reactors subject to annual fees, and results 
in a FY 2009 annual fee of $124,500 for each licensee. The increase in 
annual fees from FY 2008 to FY 2009 is due to an increase in budget 
resources for license renewal activities partially offset by higher 
part 170 revenue estimate for test and research reactors class.
f. Rare Earth Facilities
    The one licensee who had an NRC specific license for receipt and 
processing of source material under the Rare Earth fee class 
transferred to the Agreement State, Commonwealth of Pennsylvania, 
effective March 31, 2008.
    Because the agency does not anticipate receiving an application for 
a rare earth facility this fiscal year, no budget resources were 
allocated to this fee class and no annual fee will be published in FY 
2009. NRC has also revised the fee category for this fee class from 
2.A.(2)(c) to 2.A.(2)(f) in FY 2009.
g. Materials Users
    Table XVI shows the calculation of the FY 2009 annual fee amount 
for materials users licensees. FY 2008 values are shown for comparison. 
Note the following fee categories under Sec.  171.16 are included in 
this fee class: 1.C., 1.D., 2.B., 2.C., 3.A. through 3.S., 4.A. through 
4.C., 5.A., 5.B., 6.A., 7.A. through 7.C., 8.A., 9.A. through 9.D., 16, 
and 17.

     Table XVI--Annual Fee Summary Calculations for Materials Users
                          [Dollars in millions]
------------------------------------------------------------------------
                                                       FY 2008   FY 2009
               Summary fee calculations                 final   proposed
------------------------------------------------------------------------
Total budgeted resources.............................    $22.8    $ 28.7
Less estimated part 170 receipts.....................     -2.0      -1.2
                                                      ------------------
    Net part 171 resources...........................    $20.8     $27.5
Allocated generic transportation.....................    + 0.9     + 0.8
Allocated surcharge..................................    + 0.3     + 0.6
Billing adjustments..................................     -0.5      -0.1
                                                      ------------------
    Total required annual fee recovery...............     21.4      28.8
------------------------------------------------------------------------

    The total required annual fees to be recovered from materials 
licensees increases in FY 2009 mainly because of increases in the 
budgeted resources allocated to this fee class for licensing 
activities, and a lower part 170 estimate. Annual fees for most fee 
categories within the materials users fee class increase. The number of 
licensees also decreases because of the expected transfer of licensees 
to the Commonwealth of Virginia. Because the agreement with the 
Commonwealth of Virginia is expected to be effective March 31, 2009, 
the licensees transferring to the Commonwealth of Virginia will be 
subject to one-half of the annual fees.
    To equitably and fairly allocate the $28.8 million in FY 2009 
budgeted costs to be recovered in annual fees assessed to the 
approximately 3,800 diverse materials users licensees, the NRC will 
continue to base the annual fees for each fee category within this 
class on the part 170 application fees and estimated inspection costs 
for each fee category. Because the application fees and inspection 
costs are indicative of the complexity of the license, this approach 
continues to provide a proxy for allocating the generic and other 
regulatory costs to the diverse categories of licenses based on NRC's 
cost to regulate each category. This fee calculation also continues to 
consider the inspection frequency (priority), which is indicative of 
the safety risk and

[[Page 9141]]

resulting regulatory costs associated with the categories of licenses.
    The annual fee for these categories of materials users licenses is 
developed as follows:
    Annual fee = Constant x [Application Fee + (Average Inspection Cost 
divided by Inspection Priority)] + Inspection Multiplier x (Average 
Inspection Cost divided by Inspection Priority) + Unique Category 
Costs.
    The constant is the multiple necessary to recover approximately 
$20.9 million in general costs (including allocated generic 
transportation costs) and is 1.3 for FY 2009. The average inspection 
cost is the average inspection hours for each fee category multiplied 
by the hourly rate of $257. The inspection priority is the interval 
between routine inspections, expressed in years. The inspection 
multiplier is the multiple necessary to recover approximately $7.2 
million in inspection costs, and is 1.71 for FY 2009. The unique 
category costs are any special costs that the NRC has budgeted for a 
specific category of licenses. For FY 2009, no unique costs were 
identified.
    The annual fee to be assessed to each licensee also includes a net 
surcharge of $625,000 (see Section II.B.1., ``Application of ``Fee 
Relief/Surcharge,'' of this document). This surcharge is the result of 
subtracting the $87,000 in fee relief (reduction to annual fee) 
allocated to the materials users fee class from the approximately 
$712,000 in LLW surcharge costs allocated to the fee class. The amended 
annual fee for each fee category is shown in Sec.  171.16(d).
h. Transportation
    Table XVII shows the calculation of the FY 2009 generic 
transportation budgeted resources to be recovered through annual fees. 
FY 2008 values are shown for comparison.

     Table XVII--Annual Fee Summary Calculations for Transportation
                          [Dollars in millions]
------------------------------------------------------------------------
                                                  FY 2008      FY 2009
           Summary fee calculations                final       proposed
------------------------------------------------------------------------
Total budgeted resources......................         $5.7         $6.1
Less estimated part 170 receipts..............         -2.3         -3.1
                                               -------------------------
    Net part 171 resources....................          3.4          3.0
------------------------------------------------------------------------

    The NRC must approve any package used for shipping nuclear material 
before shipment. If the package meets NRC requirements, the NRC issues 
a Radioactive Material Package Certificate of Compliance (CoC) to the 
organization requesting approval of a package. Organizations are 
authorized to ship radioactive material in a package approved for use 
under the general licensing provisions of 10 CFR Part 71. The resources 
associated with generic transportation activities are distributed to 
the license fee classes based on the number of CoCs benefitting (used 
by) that fee class, as a proxy for the generic transportation resources 
expended for each fee class.
    The total FY 2009 budgeted resources for generic transportation 
activities, including those to support DOE CoCs, are $3.0 million. The 
budgeted resources for these activities in FY 2009 decreased compared 
with FY 2008, mostly due to higher part 170 revenue estimate partially 
offset by increase in budget resources for licensing activities. 
Generic transportation resources associated with fee-exempt entities 
are not included in this total. These costs are included in the 
appropriate fee-relief category (e.g., the fee-relief category for 
nonprofit educational institutions).
    Consistent with the policy established in the NRC's FY 2006 final 
fee rule (71 FR 30734; May 30, 2006), the NRC will recover generic 
transportation costs unrelated to DOE as part of existing annual fees 
for license fee classes. NRC will continue to assess a separate annual 
fee under Sec.  171.16, fee category 18.A., for DOE transportation 
activities. The CoCs for DOE decreased in FY 2009 compared to FY 2008 
resulting in a lower annual fee for DOE under fee category 18.A.
    The amount of the generic resources allocated is calculated by 
multiplying the percentage of total CoCs used by each fee class (and 
DOE) by the total generic transportation resources to be recovered. In 
FY 2009, the generic transportation cost allocated to the most fee 
classes decreases compared to FY 2008 due to the decrease in total 
budgeted resources allocated for transportation.
    The distribution of these resources to the license fee classes and 
DOE is shown in Table XVIII. The distribution is adjusted to account 
for the licensees in each fee class that are fee exempt. For example, 
if 3 CoCs benefit the entire test and research reactor class, but only 
4 of 30 test and research reactors are subject to annual fees, the 
number of CoCs used to determine the proportion of generic 
transportation resources allocated to test and research reactor annual 
fees equals ((4/30)*3), or 0.4 CoCs.

                     Table XVIII--Distribution of Generic Transportation Resources, FY 2009
                                              [Dollars in millions]
----------------------------------------------------------------------------------------------------------------
                                                                                                     Allocated
                                                                    Number CoCs    Percentage of      generic
                      License fee class/DOE                       benefiting fee    total CoCs    transportation
                                                                  class (or DOE)     (percent)       resources
----------------------------------------------------------------------------------------------------------------
Total...........................................................           121.5           100.0           $3.00
DOE.............................................................            29.0            23.9            0.72
Operating Power Reactors........................................            34.0            28.0            0.84
Spent Fuel Storage/Reactor Decommissioning......................             9.0             7.4            0.22
Test and Research Reactors......................................             0.5             0.4            0.01
Fuel Facilities.................................................            17.0            14.0            0.42
Materials Users.................................................            32.0            26.3            0.79
----------------------------------------------------------------------------------------------------------------

    The NRC is proposing to continue to assess DOE an annual fee based 
on the part 71 CoCs it holds, and not allocate these DOE-related 
resources to other licensees' annual fees, because these resources 
specifically support DOE. Note that DOE's proposed annual fee includes 
a reduction for the fee relief (see Section II.B.1, Application of 
``Fee Relief/Surcharge,'' of this document), resulting in a total 
annual fee of $679,000 for FY 2009. This fee decrease from last year is 
primarily due to a decrease in the number of DOE CoCs.
4. Small Entity Fees
    The small entity annual fee is charged to those licensees who 
qualify as small entities and would otherwise be required to pay annual 
fees as stipulated under Sec.  171.16(d). Based on an in-depth

[[Page 9142]]

analysis conducted in FY 2009, the NRC is proposing to reduce the 
maximum small entity fee from $2,300 to $1,900 and the lower tier fee 
from $500 to $400. This reduction reflects the decrease in annual fees 
for the small materials licensees in the past two years.
    In 2007, the NRC revised its receipts-based size standards (72 FR 
44951, August 10, 2007) to conform to the Small Business Agency 
standards. The maximum average gross annual receipts (upper tier) to 
qualify as a small entity were changed to $6.5 million from $5 million. 
The NRC is now proposing to revise the small entity lower tier 
receipts-based threshold to $450,000 from $350,000. This change is 
approximately the same percentage adjustment as the change in the upper 
tier receipts-based standard.
5. Fee Category Changes
    The NRC is proposing to revise the fee categories for uranium 
recovery facilities in Sec.  171.16. The new fee categories will better 
reflect the NRC's regulatory effort expended for the different types of 
facilities, both existing and planned. A more detailed discussion is in 
Section II.B.3.b., `Uranium Recovery Facilities'. The NRC is also 
proposing to modify footnote 4 in Sec.  171.16 to remove references to 
uranium milling. These references no longer apply since fee categories 
2.A.(2) related to uranium recovery facilities have been revised.
    The NRC is also proposing to revise the description for two fee 
categories, 7.A. and 17 in Sec.  171.16. The NRC proposes to amend fee 
category 7.A., related to medical licenses, to more precisely state 
which medical devices it covers. Currently, the fee category applies to 
teletherapy devices. The NRC has historically included gamma 
stereotactic radiosurgery units (gamma knives) in this category per 
NUREG 1556, Volume 20, Appendix G. This amendment explicitly provides 
that fee category 7.A. include gamma knives and other similar beam 
therapy devices. The fee category 17 for master materials license is 
being expanded to include non-government entities with multi-site 
licenses.
    The new fee category descriptions do not represent any additions to 
the types of licenses regulated by NRC. These changes will help clarify 
the types of licenses covered under specific categories for NRC 
licensees.
6. Administrative Amendments
    The NRC applies the 10 percent of its budget that it receives as 
fee relief under OBRA-90, as amended, to offset the budget resources 
supporting activities which do not directly benefit current NRC 
licensees (fee-relief activities). Any remaining amount is allocated to 
all licensees' annual fees (see Section II.B.1., Application of ``Fee 
Relief/Surcharge'' of this document). The NRC is proposing to replace 
the term for this allocated amount in Sec.  171.15 and Sec.  171.16 
from `surcharge' to `fee-relief adjustment'. The new term better 
describes the allocated amount since the fee relief is a reduction in 
annual fee for most fee classes in FY 2009. The allocation is an 
adjustment to the annual fee.
    In summary, the NRC is proposing to--
    1. Use the NRC's fee relief to reduce all licensees' annual fees, 
based on their percent of the NRC budget;
    2. Revise the number of NRC licensees to reflect the expectation 
that the Commonwealth of Virginia will become an Agreement State on 
March 31, 2009;
    3. Establish rebaselined annual fees for FY 2009; and
    4. Reduce the maximum small entity fee from $2,300 to $1,900, and 
the lower tier fee from $500 to $400.
    5. Revise some fee categories to better reflect NRC's regulatory 
effort.
    6. Make certain administrative changes for purposes of 
clarification.

III. Plain Language

    The Presidential Memorandum dated June 1, 1998, entitled, ``Plain 
Language in Government Writing'' directed that the Government's writing 
be in plain language. This memorandum was published on June 10, 1998 
(63 FR 31883). The NRC requests specific comments on the clarity and 
effectiveness of the language in the proposed rule. Comments should be 
sent to the address listed under the ADDRESSES heading.

IV. Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 15 
U.S.C. 3701, requires that Federal agencies use technical standards 
that are developed or adopted by voluntary consensus standards bodies 
unless using these standards is inconsistent with applicable law or is 
otherwise impractical. The NRC is proposing to amend the licensing, 
inspection, and annual fees charged to its licensees and applicants as 
necessary to recover approximately 90 percent of its budget authority 
in FY 2009, as required by the Omnibus Budget Reconciliation Act of 
1990, as amended. This action does not constitute the establishment of 
a standard that contains generally applicable requirements.

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 environmental assessment nor an environmental 
impact statement has been prepared for the proposed rule. By its very 
nature, this regulatory action does not affect the environment and, 
therefore, no environmental justice issues are raised.

VI. Paperwork Reduction Act Statement

    This proposed rule does not contain information collection 
requirements and, therefore, is not subject to the requirements of the 
Paperwork Reduction Act of 1995 44 U.S.C. 3501 et seq.

VII. Regulatory Analysis

    With respect to 10 CFR part 170, this proposed rule was developed 
under Title V of the IOAA (31 U.S.C. 9701) and the Commission's fee 
guidelines. When developing these guidelines the Commission took into 
account guidance provided by the U.S. Supreme Court on March 4, 1974, 
in National Cable Television Association, Inc. v. United States, 415 
U.S. 36 (1974) and Federal Power Commission v. New England Power 
Company, 415 U.S. 345 (1974). In these decisions, the Court held that 
the IOAA authorizes an agency to charge fees for special benefits 
rendered to identifiable persons measured by the ``value to the 
recipient'' of the agency service. The meaning of the IOAA was further 
clarified on December 16, 1976, by four decisions of the U.S. Court of 
Appeals for the District of Columbia: National Cable Television 
Association v. Federal Communications Commission, 554 F.2d 1094 (DC 
Cir. 1976); National Association of Broadcasters v. Federal 
Communications Commission, 554 F.2d 1118 (DC Cir. 1976); Electronic 
Industries Association v. Federal Communications Commission, 554 F.2d 
1109 (DC Cir. 1976); and Capital Cities Communication, Inc. v. Federal 
Communications Commission, 554 F.2d 1135 (DC Cir. 1976). The 
Commission's fee guidelines were developed based on these legal 
decisions.
    The Commission's fee guidelines were upheld on August 24, 1979, by 
the U.S. Court of Appeals for the Fifth Circuit in Mississippi Power 
and Light Co. v. U.S. Nuclear Regulatory Commission, 601 F.2d 223 (5th 
Cir. 1979), cert. denied, 444 U.S. 1102 (1980). This court held that:

[[Page 9143]]

    (1) The NRC had the authority to recover the full cost of providing 
services to identifiable beneficiaries;
    (2) The NRC could properly assess a fee for the costs of providing 
routine inspections necessary to ensure a licensee's compliance with 
the Atomic Energy Act of 1954, as amended, and with applicable 
regulations;
    (3) The NRC could charge for costs incurred in conducting 
environmental reviews required by the National Environmental Policy 
Act, 42 U.S.C. 4321;
    (4) The NRC properly included the costs of uncontested hearings and 
of administrative and technical support services in the fee schedule;
    (5) The NRC could assess a fee for renewing a license to operate a 
low-level radioactive waste burial site; and
    (6) The NRC's fees were not arbitrary or capricious.
    With respect to 10 CFR part 171, on November 5, 1990, the Congress 
passed OBRA-90, which required that, for FYs 1991 through 1995, 
approximately 100 percent of the NRC budget authority, less 
appropriations from the NWF, be recovered through the assessment of 
fees. OBRA-90 was subsequently amended to extend the 100 percent fee 
recovery requirement through FY 2000. The FY 2001 Energy and Water 
Development Appropriation Act (EWDAA) amended OBRA-90 to decrease the 
NRC's fee recovery amount by 2 percent per year beginning in FY 2001, 
until the fee recovery amount was 90 percent in FY 2005. The FY 2006 
EWDAA extended this 90 percent fee recovery requirement for FY 2006. 
Section 637 of the Energy Policy Act of 2005 made the 90 percent fee 
recovery requirement permanent in FY 2007. As a result, the NRC is 
required to recover approximately 90 percent of its FY 2009 budget 
authority, less the amounts appropriated from the NWF, WIR, and generic 
homeland security activities through fees. To comply with this 
statutory requirement and in accordance with ( 171.13, the NRC is 
publishing the amount of the FY 2009 annual fees for reactor licensees, 
fuel cycle licensees, materials licensees, and holders of CoCs, 
registrations of sealed source and devices, and Government agencies. 
OBRA-90, consistent with the accompanying Conference Committee Report, 
and the amendments to OBRA-90, provides that--
    (1) The annual fees will be based on approximately 90 percent of 
the Commission's FY 2009 budget of $1,069.8 million less the funds 
directly appropriated from the NWF to cover the NRC's high-level waste 
program, and for WIR, generic homeland security activities, and less 
the amount of funds collected from part 170 fees;
    (2) The annual fees shall, to the maximum extent practicable, have 
a reasonable relationship to the cost of regulatory services provided 
by the Commission; and
    (3) The annual fees be assessed to those licensees the Commission, 
in its discretion, determines can fairly, equitably, and practicably 
contribute to their payment.
    Part 171, which established annual fees for operating power 
reactors effective October 20, 1986 (51 FR 33224; September 18, 1986), 
was challenged and upheld in its entirety in Florida Power and Light 
Company v. United States, 846 F.2d 765 (DC Cir. 1988), cert. denied, 
490 U.S. 1045 (1989). Further, the NRC's FY 1991 annual fee rule 
methodology was upheld by the D.C. Circuit Court of Appeals in Allied 
Signal v. NRC, 988 F.2d 146 (DC Cir. 1993).

VIII. Regulatory Flexibility Analysis

    The NRC is required by the OBRA-90, as amended, to recover 
approximately 90 percent of its FY 2009 budget authority through the 
assessment of user fees. This Act further requires that the NRC 
establish a schedule of charges that fairly and equitably allocates the 
aggregate amount of these charges among licensees.
    This proposed rule would establish the schedules of fees that are 
necessary to implement the Congressional mandate for FY 2009. This rule 
would result in increases in the annual fees charged to certain 
licensees and holders of certificates, registrations, and approvals, 
and decreases in annual fees for others. Licensees affected by the 
annual fee increases and decreases include those that qualify as a 
small entity under NRC's size standards in 10 CFR 2.810. The Regulatory 
Flexibility Analysis, prepared in accordance with 5 U.S.C. 604, is 
included as Appendix A to this proposed rule.
    The Small Business Regulatory Enforcement Act (SBREFA) requires all 
Federal agencies to prepare a written compliance guide for each rule 
for which the agency is required by 5 U.S.C. 604 to prepare a 
regulatory flexibility analysis. Therefore, in compliance with the law, 
Attachment 1 to the Regulatory Flexibility Analysis is the small entity 
compliance guide for FY 2009.

IX. Backfit Analysis

    The NRC has determined that the backfit rule, 10 CFR 50.109, does 
not apply to this proposed rule and that a backfit analysis is not 
required for this proposed rule. The backfit analysis is not required 
because these amendments do not require the modification of, or 
additions to systems, structures, components, or the design of a 
facility, or the design approval or manufacturing license for a 
facility, or the procedures or organization required to design, 
construct, or operate a facility.

List of Subjects

10 CFR Part 170

    Byproduct material, Import and export licenses, Intergovernmental 
relations, Non-payment penalties, Nuclear materials, Nuclear power 
plants and reactors, Source material, Special nuclear material.

10 CFR Part 171

    Annual charges, Byproduct material, Holders of certificates, 
Registrations, Approvals, Intergovernmental relations, Non-payment 
penalties, Nuclear materials, Nuclear power plants and reactors, Source 
material, Special nuclear 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 of 1974, as amended; and 5 U.S.C. 553, the NRC is proposing to 
adopt the following amendments to 10 CFR parts 170 and 171.

PART 170--FEES FOR FACILITIES, MATERIALS, IMPORT AND EXPORT 
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: Section 9701, Pub. L. 97-258, 96 Stat. 1051 (31 
U.S.C. 9701); Sec. 301, Pub. L. 92-314, 86 Stat. 227 (42 U.S.C. 
2201w); sec. 201, Pub. L. 93-438, 88 Stat. 1242, as amended (42 
U.S.C. 5841); Sec. 205a, Pub. L. 101-576, 104 Stat. 2842, as amended 
(31 U.S.C. 901, 902); Sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 
note), sec. 623, Pub. L. 109-58, 119 Stat. 783 (42 U.S.C. 2201(w)); 
Sec. 651(e), Pub. L. 109-58, 119 Stat. 806-810 (42 U.S.C. 2014, 
2021, 2021b, 2111).

    2. Section 170.11 is revised to read as follows:


Sec.  170.11  Exemptions.

    (a) No application fees, license fees, renewal fees, inspection 
fees, or special project fees shall be required for:
    (1) A request/report submitted to the NRC--
    (i) In response to a Generic Letter or NRC Bulletin that does not 
result in an amendment to the license, does not result in the review of 
an alternate method or reanalysis to meet the

[[Page 9144]]

requirements of the Generic Letter, or does not involve an unreviewed 
safety issue;
    (ii) In response to an NRC request from the Associate Office 
Director level or above to resolve an identified safety, safeguards, or 
environmental issue, or to assist NRC in developing a rule, regulatory 
guide, policy statement, generic letter, or bulletin; or
    (iii) As a means of exchanging information between industry 
organizations and the NRC. To receive this fee exemption,
    (A) The report should be submitted for the specific purpose of 
supporting ongoing NRC generic regulatory improvements or efforts 
(e.g., rules, regulations, regulatory guides and policy statements) and 
the agency, at the time the document is submitted, plans to use it for 
that purpose. The exemption applies even if ultimately the NRC does not 
use the document as planned;
    (B) The NRC must be the primary beneficiary of the NRC's review and 
approval of these documents. This exemption does not apply to a topical 
report submitted for the purpose of obtaining NRC approval so that the 
report can be used by the industry in the future to address licensing 
or safety issues, even though the NRC may realize some benefits from 
its review and approval of the document;
    (C) The fee exemption is requested in writing to the Chief 
Financial Officer in accordance with 10 CFR 170.5, and the Chief 
Financial Officer grants this request in writing.
* * * * *
    (b) The Commission may, upon application by an interested person, 
or upon its own initiative, grant such exemptions from the requirements 
of this part as it determines are authorized by law and are otherwise 
in the public interest. Applications for exemption under this paragraph 
may include activities such as, but not limited to, the use of licensed 
materials for educational or noncommercial public displays or 
scientific collections.
    3. Section 170.20 is revised to read as follows:


Sec.  170.20  Average cost per professional staff-hour.

    Fees for permits, licenses, amendments, renewals, special projects, 
10 CFR part 55 requalification and replacement examinations and tests, 
other required reviews, approvals, and inspections under Sec. Sec.  
170.21 and 170.31 will be calculated using the professional staff-hour 
rate of $257 per hour.
    4. In Sec.  170.21, in the table, fee category K is revised to read 
as follows:


Sec.  170.21  Schedule of fees for production and utilization 
facilities, review of standard referenced design approvals, special 
projects, inspections and import and export licenses.

* * * * *

                        Schedule of Facility Fees
                     [See footnotes at end of table]
------------------------------------------------------------------------
                                                               Fees \1\
            Facility categories and type of fees                 \2\
------------------------------------------------------------------------
 
                              * * * * * * *
K. Import and export licenses:
Licenses for the import and export only of production and
 utilization facilities or the export only of components
 for production and utilization facilities issued under 10
 CFR Part 110.
1. Application for import or export of production and
 utilization facilities \4\ (including reactors and other
 facilities) and exports of components requiring Commission
 and Executive Branch review, for example, actions under 10
 CFR 110.40(b).
Application--new license, or amendment; or license               $16,700
 exemption request.........................................
2. Application for export of reactor and other components
 requiring Executive Branch review only, for example, those
 actions under 10 CFR 110.41(a)(1)-(8).
Application--new license, or amendment; or license                 9,800
 exemption request.........................................
3. Application for export of components requiring the
 assistance of the Executive Branch to obtain foreign
 government assurances.
Application--new license, or amendment; or license                 4,100
 exemption request.........................................
4. Application for export of facility components and
 equipment (examples provided in 10 CFR part 110, Appendix
 A, Items (5) through (9)) not requiring Commission or
 Executive Branch review, or obtaining foreign government
 assurances.
Application--new license, or amendment; or license                 2,600
 exemption request.........................................
5. Minor amendment of any active export or import license,
 for example, to extend the expiration date, change
 domestic information, or make other revisions which do not
 involve any substantive changes to license terms or
 conditions or to the type of facility or component
 authorized for export and therefore, do not require in-
 depth analysis or review or consultation with the
 Executive Branch, U.S. host state, or foreign government
 authorities.
Minor amendment to license.................................          770
 
                              * * * * * * *
------------------------------------------------------------------------
\1\ Fees will not be charged for orders related to civil penalties or
  other civil sanctions issued by the Commission under Sec.   2.202 of
  this chapter or for amendments resulting specifically from the
  requirements of these orders. For orders unrelated to civil penalties
  or other civil sanctions, fees will be charged for any resulting
  licensee-specific activities not otherwise exempted from fees under
  this chapter. Fees will be charged for approvals issued under a
  specific exemption provision of the Commission's regulations under
  Title 10 of the Code of Federal Regulations (e.g., 10 CFR 50.12, 10
  CFR 73.5) and any other sections in effect now or in the future,
  regardless if the approval is in the form of a license amendment,
  letter of approval, safety evaluation report, or other form.
\2\ Full cost fees will be determined based on the professional staff
  time and appropriate contractual support services expended. For
  applications currently on file and for which fees are determined 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
  the final rule will be determined at the professional rates in effect
  when the service was provided. For those applications currently on
  file for which review costs have reached an applicable fee ceiling
  established by the June 20, 1984, and July 2, 1990, rules, but are
  still pending completion of the review, the cost incurred after any
  applicable ceiling was reached through January 29, 1989, will not be
  billed to the applicant. Any professional staff-hours expended above
  those ceilings on or after January 30, 1989, will be assessed at the
  applicable rates established by Sec.   170.20, as appropriate, except
  for topical reports whose costs exceed $50,000. Costs which exceed
  $50,000 for any topical report, amendment, revision or supplement to a
  topical report completed or under review from January 30, 1989,
  through August 8, 1991, will not be billed to the applicant. Any
  professional hours expended on or after August 9, 1991, will be
  assessed at the applicable rate established in Sec.   170.20.
* * * * * * *
\4\ Imports only of major components for end-use at NRC-licensed
  reactors are now authorized under NRC general import license.


[[Page 9145]]

    5. In Sec.  170.31, the table is revised to read as follows:


Sec.  170.31  Schedule of fees for materials licenses and other 
regulatory services, including inspections, and import and export 
licenses.

* * * * *

                       Schedule of Materials Fees
                     [See footnotes at end of table]
------------------------------------------------------------------------
 Category of materials licenses and type of fees
                       \1\                                Fee 2 3
------------------------------------------------------------------------
1. Special nuclear material:
A. (1) Licenses for possession and use of U-235
 or plutonium for fuel fabrication activities.
(a) Strategic Special Nuclear Material (High       Full Cost
 Enriched Uranium) [Program Code(s): 21130].
(b) Low Enriched Uranium in Dispersible Form Used  Full Cost
 for Fabrication of Power Reactor Fuel [Program
 Code(s): 21210.
(2) All other special nuclear materials licenses
 not included in Category 1.A.(1) which are
 licensed for fuel cycle activities.
(a) Facilities with limited operations [Program    Full Cost
 Code(s): 21310, 21320].
(b) Gas centrifuge enrichment demonstration        Full Cost
 facilities.
(c) Others, including hot cell facilities........  Full Cost
B. Licenses for receipt and storage of spent fuel  Full Cost
 and reactor-related Greater than Class C (GTCC)
 waste at an independent spent fuel storage
 installation (ISFSI) [Program Code(s): 23200].
C. Licenses for possession and use of special
 nuclear material in sealed sources contained in
 devices used in industrial measuring systems,
 including x-ray fluorescence analyzers.\4\
Application [Program Code(s): 22140].............  $1,200
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 Sec.   150.11 of this chapter, for which the
 licensee shall pay the same fees as those under
 Category 1.A.\4\
Application [Program Code(s): 22110, 22111,        $2,400
 22120, 22131, 22136, 22150, 22151, 22161, 22163,
 22170, 23100, 23300, 23310].
E. Licenses or certificates for construction and   Full Cost
 operation of a uranium enrichment facility
 [Program Code(s): 21200].
2. Source material:
A. (1) Licenses for possession and use of source   Full Cost
 material for refining uranium mill concentrates
 to uranium hexafluoride [Program Code(s): 11400].
(2) Licenses for possession and use of source
 material in recovery operations such as milling,
 in-situ recovery, heap-leaching, 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
 (tailings) from source material recovery
 operations, as well as licenses authorizing the
 possession and maintenance of a facility in a
 standby mode.
(a) Conventional and Heap Leach facilities         Full Cost
 [Program Code(s): 11100].
(b) Basic In Situ Recovery facilities [Program     Full Cost
 Code(s): 11500].
(c) Expanded In Situ Recovery facilities [Program  Full Cost
 Code(s): 11500].
(d) In Situ Recovery Resin facilities............  Full Cost
(e) Resin Toll Milling facilities................  Full Cost
(f) Other facilities [Program Code(s): 11700]....  Full Cost
(3) Licenses that authorize the receipt of         Full Cost
 byproduct material, as defined in Section
 11e.(2) of the Atomic Energy Act, from other
 persons for possession and disposal, except
 those licenses subject to the fees in Category
 2.A.(2) or Category 2.A.(4) [Program Code(s):
 11600].
(4) Licenses that authorize the receipt of         Full Cost
 byproduct material, as defined in Section
 11e.(2) of the Atomic Energy Act, from other
 persons for possession and disposal incidental
 to the disposal of the uranium waste tailings
 generated by the licensee's milling operations,
 except those licenses subject to the fees in
 Category 2.A.(2).
(5) Licenses that authorize the possession of      Full Cost
 source material related to removal of
 contaminants (source material) from drinking
 water.
B. Licenses which authorize the possession, use,
 and/or installation of source material for
 shielding.
Application [Program Code(s): 11210].............  $570
C. All other source material licenses.
Application [Program Code(s): 11200, 11220,        $10,100
 11221, 11230, 11300, 11800, 11810].
3. Byproduct material:
A. Licenses of broad scope for the possession and
 use of byproduct material issued under parts 30
 and 33 of this chapter for processing or
 manufacturing of items containing byproduct
 material for commercial distribution.
Application [Program Code(s): 03211, 03212,        $12,000
 03213].
B. Other licenses for possession and use of
 byproduct material issued under part 30 of this
 chapter for processing or manufacturing of items
 containing byproduct material for commercial
 distribution.
Application [Program Code(s): 03214, 03215,        $4,500
 22135, 22162].
C. Licenses issued under Sec.  Sec.   32.72 and/
 or 32.74 of this chapter that authorize the
 processing or manufacturing and distribution or
 redistribution of radiopharmaceuticals,
 generators, reagent kits, and/or sources and
 devices containing byproduct material. This
 category does not apply to licenses issued to
 nonprofit educational institutions whose
 processing or manufacturing is exempt under Sec.
   170.11(a)(4). These licenses are covered by
 fee Category 3.D.
Application [Program Code(s): 02500, 02511,        $6,500
 02513].
D. Licenses and approvals issued under Sec.  Sec.
   32.72 and/or 32.74 of this chapter authorizing
 distribution or redistribution of
 radiopharmaceuticals, generators, reagent kits,
 and/or sources or devices not involving
 processing of byproduct material. This category
 includes licenses issued under Sec.  Sec.
 32.72 and/or 32.74 of this chapter to nonprofit
 educational institutions whose processing or
 manufacturing is exempt under Sec.
 170.11(a)(4).
Application [Program Code(s): 02512, 02514]......  $4,400
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 [Program Code(s): 03510, 03520]......  $3,000

[[Page 9146]]

 
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 exposed for irradiation purposes.
 This category also includes underwater
 irradiators for irradiation of materials where
 the source is not exposed for irradiation
 purposes.
Application [Program Code(s): 03511].............  $6,000
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.
 This category also includes underwater
 irradiators for irradiation of materials where
 the source is not exposed for irradiation
 purposes.
Application [Program Code(s): 03521].............  $28,700
H. Licenses issued under 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. The category does
 not include 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 [Program Code(s): 03255].............  $5,500
I. Licenses issued under 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. This
 category does not include 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 [Program Code(s): 03250, 03251,        $10,000
 03252, 03253, 03254, 03256].
J. Licenses issued under 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. This
 category does not include specific licenses
 authorizing redistribution of items that have
 been authorized for distribution to persons
 generally licensed under part 31 of this
 chapter.
Application [Program Code(s): 03240, 03241,        $1,800
 03243].
K. Licenses issued under 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. This category
 does not include specific licenses authorizing
 redistribution of items that have been
 authorized for distribution to persons generally
 licensed under part 31 of this chapter.
Application [Program Code(s): 03242, 03244]......  $1,100
L. Licenses of broad scope for possession and use
 of byproduct material issued under parts 30 and
 33 of this chapter for research and development
 that do not authorize commercial distribution.
Application [Program Code(s): 01100, 01110,        $10,100
 01120, 03610, 03611, 03612, 03613].
M. Other licenses for possession and use of
 byproduct material issued under part 30 of this
 chapter for research and development that do not
 authorize commercial distribution.
Application [Program Code(s): 03620].............  $3,500
N. Licenses that authorize services for other
 licensees, except:
(1) Licenses that authorize only calibration and/
 or leak testing services are subject to the fees
 specified in fee Category 3P; and
(2) Licenses that authorize waste disposal
 services are subject to the fees specified in
 fee Categories 4.A., 4.B., and 4.C.
Application [Program Code(s): 03219, 03225,        $6,100
 03226].
O. Licenses for possession and use of byproduct
 material issued under part 34 of this chapter
 for industrial radiography operations.
Application [Program Code(s): 03310, 03320]......  $5,800
P. All other specific byproduct material
 licenses, except those in Categories 4.A.
 through 9.D.
Application [Program Code(s): 02400, 02410,        $1,400
 03120, 03121, 03122, 03123, 03124, 03220, 03221,
 03222, 03800, 03810, 22130].
Q. Registration of a device(s) generally licensed
 under part 31 of this chapter.
Registration.....................................  $310
R. Possession of items or products containing
 radium-226 identified in 10 CFR 31.12 which
 exceed the number of items or limits specified
 in that section.\6\
1. Possession of quantities exceeding the number
 of items or limits in 10 CFR 31.12(a)(4), or (5)
 but less than or equal to 10 times the number of
 items or limits specified.
Application [Program Code(s): 02700].............  $1,180
2. Possession of quantities exceeding 10 times
 the number of items or limits specified in 10
 CFR 31.12(a)(4), or (5).C.
Application [Program Code(s): 02710].............  $1,400
S. Licenses for production of accelerator-
 produced radionuclides.
Application [Program Code(s): 03210].............  $6,500
4. Waste disposal and processing:
A. Licenses specifically authorizing the receipt   Full Cost
 of waste byproduct material, source material, or
 special nuclear material from other persons for
 the purpose of contingency storage or commercial
 land disposal by the licensee; or licenses
 authorizing contingency storage of low-level
 radioactive waste at the site of nuclear power
 reactors; or licenses for receipt of waste from
 other persons for incineration or other
 treatment, packaging of resulting waste and
 residues, and transfer of packages to another
 person authorized to receive or dispose of waste
 material. [Program Code(s): 03231, 03233, 03235,
 03236, 06100, 06101].
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 [Program Code(s): 03234].............  $4,400
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.
Application [Program Code(s): 03232].............  $4,600
5. Well logging:
A. Licenses for possession and 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 [Program Code(s): 03110, 03111,        $3,400
 03112].

[[Page 9147]]

 
B. Licenses for possession and use of byproduct
 material for field flooding tracer studies.
Licensing [Program Code(s): 03113]...............  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 [Program Code(s): 03218].............  $20,500
7. Medical licenses:
A. Licenses issued under parts 30, 35, 40, and 70
 of this chapter for human use of byproduct
 material, source material, or special nuclear
 material in sealed sources contained in gamma
 stereotactic radiosurgery units, teletherapy
 devices, or similar beam therapy devices.
Application [Program Code(s): 02300, 02310]......  $11,200
B. Licenses of broad scope issued to medical
 institutions or two or more physicians under
 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. This category
 also includes the possession and use of source
 material for shielding when authorized on the
 same license.
Application [Program Code(s): 02110].............  $8,000
C. Other licenses issued under 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
 teletherapy devices.
Application [Program Code(s): 02120, 02121,        $2,300
 02200, 02201, 02210, 02220, 02230, 02231, 02240,
 22160].
8. Civil defense:
A. Licenses for possession and use of byproduct
 material, source material, or special nuclear
 material for civil defense activities.
Application [Program Code(s): 03710].............  $1,180
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.........................  $8,300
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.........................  $8,300
C. Safety evaluation of sealed sources containing
 byproduct material, source material, or special
 nuclear material, except reactor fuel, for
 commercial distribution.
Application--each source.........................  $5,800
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.........................  $980
10. Transportation of radioactive material:
A. Evaluation of casks, packages, and shipping
 containers.
1. Spent Fuel, High-Level Waste, and plutonium     Full Cost
 air packages.
2. Other Casks...................................  Full Cost
B. Quality assurance program approvals issued
 under part 71 of this chapter.
1. Users and Fabricators.
Application......................................  $3,100
Inspections......................................  Full Cost
2. Users.
Application......................................  $3,100
Inspections......................................  Full Cost
C. Evaluation of security plans, route approvals,  Full Cost
 route surveys, and transportation security
 devices (including immobilization devices).
11. Review of standardized spent fuel facilities.  Full Cost
12. Special projects:
Including approvals, preapplication/licensing      Full Cost
 activities, and inspections.
13. A. Spent fuel storage cask Certificate of      Full Cost
 Compliance.
B. Inspections related to storage of spent fuel    Full Cost
 under Sec.   72.210 of this chapter.
14. A. Byproduct, source, or special nuclear       Full Cost
 material licenses and other approvals
 authorizing decommissioning, decontamination,
 reclamation, or site restoration activities
 under parts 30, 40, 70, 72, and 76 of this
 chapter.
B. Site-specific decommissioning activities        Full Cost
 associated with unlicensed sites, regardless of
 whether or not the sites have been previously
 licensed. Part 170 fees for these activities
 will not be charged until July 25, 2007.
15. Import and Export licenses:
Licenses issued under part 110 of this chapter
 for the import and export only of special
 nuclear material, source material, tritium and
 other byproduct material, and the export only of
 heavy water, or nuclear grade graphite (fee
 categories 15.A. through 15.E).
A. Application for export or import of nuclear
 materials, including radioactive waste requiring
 Commission and Executive Branch review, for
 example, those actions under 10 CFR 110.40(b).
Application--new license, or amendment; or         $16,700
 license exemption request.
B. Application for export or import of nuclear
 material, including radioactive waste, requiring
 Executive Branch review, but not Commission
 review. This category includes applications for
 the export and import of radioactive waste and
 requires NRC to consult with domestic host state
 authorities, Low-Level Radioactive Waste Compact
 Commission, the U.S. Environmental Protection
 Agency, etc.
Application--new license, or amendment; or         $9,800
 license exemption request.
C. Application for export of nuclear material,
 for example, routine reloads of low enriched
 uranium reactor fuel and/or natural uranium
 source material requiring the assistance of the
 Executive Branch to obtain foreign government
 assurances.

[[Page 9148]]

 
Application--new license, or amendment; or         $4,100
 license exemption request.
D. Application for export or import of nuclear
 material, including radioactive waste, not
 requiring Commission or Executive Branch review,
 or obtaining foreign government assurances. This
 category includes applications for export or
 import of radioactive waste where the NRC has
 previously authorized the export or import of
 the same form of waste to or from the same or
 similar parties located in the same country,
 requiring only confirmation from the receiving
 facility and licensing authorities that the
 shipments may proceed according to previously
 agreed understandings and procedures.
Application--new license, or amendment; or         $2,600
 license exemption request.
E. Minor amendment of any active export or import
 license, for example, to extend the expiration
 date, change domestic information, or make other
 revisions which do not involve any substantive
 changes to license terms and conditions or to
 the type/quantity/chemical composition of the
 material authorized for export and, therefore,
 do not require in-depth analysis, review, or
 consultations with other Executive Branch, U.S.
 host state, or foreign government authorities.
Minor amendment..................................  $770
Licenses issued under part 110 of this chapter
 for the import and export only of Category 1 and
 Category 2 quantities of radioactive material
 listed in Appendix P to part 110 of this chapter
 (fee categories 15.F. through 15.R.).\5\
Category 1 Exports:
F. Application for export of Category 1 materials
 involving an exceptional circumstances review
 under 10 CFR 110.42(e)(4).
Application--new license, or amendment; or         $16,700
 license exemption request.
G. Application for export of Category 1 materials
 requiring Executive Branch review, Commission
 review, and/or government-to-government consent.
Application--new license, or amendment; or         $9,800
 license exemption request.
H. Application for export of Category 1 materials
 requiring Commission review and government-to-
 government consent.
Application--new license, or amendment; or         $6,200
 license exemption request.
I. Application for export of Category 1 material
 requiring government-to-government consent.
Application--new license, or amendment; or         $5,100
 license exemption request.
Category 2 Exports:
J. Application for export of Category 2 materials
 involving an exceptional circumstances review
 under 10 CFR 110.42(e)(4).
Application--new license, or amendment; or         $16,700
 license exemption request.
K. Applications for export of Category 2
 materials requiring Executive Branch review and/
 or Commission review.
Application--new license, or amendment; or         $9,800
 license exemption request.
L. Application for the export of Category 2
 materials.
Application--new license, or amendment; or         $4,600
 license exemption request.
Category 1 Imports:
M. Application for the import of Category 1
 material requiring Commission review.
Application--new license, or amendment; or         $4,900
 license exemption request.
N. Application for the import of Category 1
 material.
Application--new license, or amendment; or         $4,100
 license exemption request.
Category 2 Imports:
O. Application for the import of Category 2
 material.
Application--new license, or amendment; or         $3,600
 license exemption request.
Category 1 Imports with Agent and Multiple
 Licensees:
P. Application for the import of Category 1
 material with agent and multiple licensees
 requiring Commission review.
Application--new license, or amendment; or         $5,700
 license exemption request.
Q. Application for the import of Category 1
 material with agent and multiple licensees.
Application--new license, or amendment; or         $4,600
 license exemption request.
Minor Amendments (Category 1 and 2 Export and
 Imports):
R. Minor amendment of any active export or import
 license, for example, to extend the expiration
 date, change domestic information, or make other
 revisions which do not involve any substantive
 changes to license terms and conditions or to
 the type/quantity/chemical composition of the
 material authorized for export and, therefore,
 do not require in-depth analysis, review, or
 consultations with other Executive Branch, U.S.
 host state, or foreign authorities.
Minor amendment..................................  $770
16. Reciprocity:
Agreement State licensees who conduct activities
 under the reciprocity provisions of 10 CFR
 150.20.
Application......................................  $1,800
17. Master materials licenses of broad scope
 issued to Government agencies and other
 entities:
Application......................................  $29,900
18. Department of Energy.
A. Certificates of Compliance. Evaluation of       Full Cost
 casks, packages, and shipping containers
 (including spent fuel, high-level waste, and
 other casks, and plutonium air packages).
B. Uranium Mill Tailings Radiation Control Act     Full Cost
 (UMTRCA) activities.
------------------------------------------------------------------------
\1\ Types of fees--Separate charges, as shown in the schedule, will be
  assessed for pre-application consultations and reviews; applications
  for new licenses, approvals, or license terminations; possession only
  licenses; issuance of new licenses and approvals; certain amendments
  and renewals to existing licenses and approvals; safety evaluations of
  sealed sources and devices; generally licensed device registrations;
  and certain inspections. The following guidelines apply to these
  charges:
(a) Application and registration fees. Applications for new materials
  licenses and export and import licenses; applications to reinstate
  expired, terminated, or inactive licenses except those subject to fees
  assessed at full costs; applications filed by Agreement State
  licensees to register under the general license provisions of 10 CFR
  150.20; and applications for amendments to materials licenses that
  would place the license in a higher fee category or add a new fee
  category must be accompanied by the prescribed application fee for
  each category.
(1) Applications for licenses covering more than one fee category of
  special nuclear material or source material must be accompanied by the
  prescribed application fee for the highest fee category.
(2) Applications for new licenses that cover both byproduct material and
  special nuclear material in sealed sources for use in gauging devices
  will pay the appropriate application fee for fee Category 1.C. only.

[[Page 9149]]

 
(b) Licensing fees. Fees for reviews of applications for new licenses
  and for renewals and amendments to existing licenses, pre-application
  consultations and reviews of other documents submitted to NRC for
  review, and project manager time for fee categories subject to full
  cost fees, are due upon notification by the Commission in accordance
  with Sec.   170.12(b).
(c) Amendment fees. Applications for amendments to export and import
  licenses must be accompanied by the prescribed amendment fee for each
  license affected. An application for an amendment to an export or
  import license or approval classified in more than one fee 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.
(d) Inspection fees. Inspections resulting from investigations conducted
  by the Office of Investigations and non-routine inspections that
  result from third-party allegations are not subject to fees.
  Inspection fees are due upon notification by the Commission in
  accordance with Sec.   170.12(c).
(e) Generally licensed device registrations under 10 CFR 31.5.
  Submittals of registration information must be accompanied by the
  prescribed fee.
\2\ Fees will not be charged for orders related to civil penalties or
  other civil sanctions issued by the Commission under 10 CFR 2.202 or
  for amendments resulting specifically from the requirements of these
  orders. For orders unrelated to civil penalties or other civil
  sanctions, fees will be charged for any resulting licensee-specific
  activities not otherwise exempted from fees under this chapter. Fees
  will be charged for approvals issued under a specific exemption
  provision of the Commission's regulations under Title 10 of the Code
  of Federal Regulations (e.g., 10 CFR 30.11, 40.14, 70.14, 73.5, and
  any other sections in effect now or in the future), regardless of
  whether the approval is in the form of a license amendment, letter of
  approval, safety evaluation report, or other form. In addition to the
  fee shown, an applicant may be assessed an additional fee for sealed
  source and device evaluations as shown in Categories 9.A. through 9.D.
\3\ Full cost fees will be determined based on the professional staff
  time multiplied by the appropriate professional hourly rate
  established in Sec.   170.20 in effect when the service is provided,
  and the appropriate contractual support services expended. For
  applications currently on file for which review costs have reached an
  applicable fee ceiling established by the June 20, 1984, and July 2,
  1990, rules, but are still pending completion of the review, the cost
  incurred after any applicable ceiling was reached through January 29,
  1989, will not be billed to the applicant. Any professional staff-
  hours expended above those ceilings on or after January 30, 1989, will
  be assessed at the applicable rates established by Sec.   170.20, as
  appropriate, except for topical reports whose costs exceed $50,000.
  Costs which exceed $50,000 for each topical report, amendment,
  revision, or supplement to a topical report completed or under review
  from January 30, 1989, through August 8, 1991, will not be billed to
  the applicant. Any professional hours expended on or after August 9,
  1991, will be assessed at the applicable rate established in Sec.
  170.20.
\4\ Licensees paying fees under Categories 1.A., 1.B., and 1.E. are not
  subject to fees under Categories 1.C. and 1.D. for sealed sources
  authorized in the same license except for an application that deals
  only with the sealed sources authorized by the license.
\5\ For a combined import and export license application for material
  listed in Appendix P to part 110 of this chapter, only the higher of
  the two applicable fee amounts must be paid.
\6\ Persons who possess radium sources that are used for operational
  purposes in another fee category are not also subject to the fees in
  this category. (This exception does not apply if the radium sources
  are possessed for storage only.)

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.

    6. The authority citation for part 171 continues to read as 
follows:

    Authority: Section 7601, Pub. L. 99-272, 100 Stat. 146, as 
amended by Sec. 5601, Pub. L. 100-203, 101 Stat. 1330, as amended by 
Sec. 3201, Pub. L. 101-239, 103 Stat. 2132, as amended by Sec. 6101, 
Pub. L. 101-508, 104 Stat. 1388, as amended by Sec. 2903a, Pub. L. 
102-486, 106 Stat. 3125 (42 U.S.C. 2213, 2214), and as amended by 
Title IV, Pub. L. 109-103, 119 Stat. 2283 (42 U.S.C. 2214); Sec. 
301, Pub. L. 92-314, 86 Stat. 227 (42 U.S.C. 2201w); Sec. 201, Pub. 
L. 93-438, 88 Stat. 1242, as amended (42 U.S.C. 5841); Sec. 1704, 
112 Stat. 2750 (44 U.S.C. 3504 note), Sec. 651(e), Pub. L.109-58, 
119 Stat. 806-810 (42 U.S.C. 2014, 2021, 2021b, 2111).

    7. In Sec.  171.15, paragraph (b)(1), the introductory text of 
paragraph (b)(2), paragraph (c)(1), the introductory text of paragraph 
(c)(2) and the introductory text of paragraph (d)(1), and paragraphs 
(d)(2), (d)(3), and the introductory text of paragraph (e), are revised 
to read as follows:


Sec.  171.15   Annual fees: Reactor licenses and independent spent fuel 
storage licenses.

* * * * *
    (b)(1) The FY 2009 annual fee for each operating power reactor 
which must be collected by September 30, 2009, is $4,608,000.
    (2) The FY 2009 annual fee is comprised of a base annual fee for 
power reactors licensed to operate, a base spent fuel storage/reactor 
decommissioning annual fee, and associated additional charges (fee-
relief adjustment). The activities comprising the FY 2009 spent 
storage/reactor decommissioning base annual fee are shown in paragraphs 
(c)(2)(i) and (ii) of this section. The activities comprising the FY 
2009 fee-relief adjustment are shown in paragraph (d)(1) of this 
section. The activities comprising the FY 2009 base annual fee for 
operating power reactors are as follows:
* * * * *
    (c)(1) The FY 2009 annual fee for each power reactor holding a 10 
CFR part 50 license that is in a decommissioning or possession only 
status and has spent fuel onsite, and each independent spent fuel 
storage 10 CFR part 72 licensee who does not hold a 10 CFR part 50 
license is $127,000.
    (2) The FY 2009 annual fee is comprised of a base spent fuel 
storage/reactor decommissioning annual fee (which is also included in 
the operating power reactor annual fee shown in paragraph (b) of this 
section), and an additional charge (fee-relief adjustment). The 
activities comprising the FY 2009 fee-relief adjustment are shown in 
paragraph (d)(1) of this section. The activities comprising the FY 2009 
spent fuel storage/reactor decommissioning rebaselined annual fee are:
* * * * *
    (d)(1) The fee-relief adjustment allocated to annual fees includes 
a surcharge for the activities listed in paragraph (d)(1)(i) of this 
section, plus the amount remaining after total budgeted resources for 
the activities included in paragraphs (d)(1)(ii) and (d)(1)(iii) of 
this section is reduced by the appropriations NRC receives for these 
types of activities. If the NRC's appropriations for these types of 
activities are greater than the budgeted resources for the activities 
included in paragraphs (d)(1)(ii) and (d)(1)(iii) of this section for a 
given FY, an annual fee reduction will be allocated to annual fees. The 
activities comprising the FY 2009 fee-relief adjustment are as follows:
* * * * *
    (2) The total FY 2009 fee-relief adjustment allocated to the 
operating power reactor class of licenses is -$1.3 million, not 
including the amount allocated to the spent fuel storage/reactor 
decommissioning class. The FY 2009 operating power reactor fee-relief 
adjustment to be assessed to each operating power reactor is 
approximately -$12,900. This amount is calculated by dividing the total 
operating power reactor fee-relief adjustment (-$1.3 million) by the 
number of operating power reactors (104).
    (3) The FY 2009 fee-relief adjustment allocated to the spent fuel 
storage/reactor decommissioning class of licenses is -$72,000. The FY 
2008 spent fuel storage/reactor decommissioning fee-relief adjustment

[[Page 9150]]

to be assessed to each operating power reactor, each power reactor in 
decommissioning or possession only status that has spent fuel onsite, 
and to each independent spent fuel storage 10 CFR part 72 licensee who 
does not hold a 10 CFR part 50 license is approximately -$585. This 
amount is calculated by dividing the total fee-relief adjustment costs 
allocated to this class by the total number of power reactor licenses, 
except those that permanently ceased operations and have no fuel 
onsite, and 10 CFR part 72 licensees who do not hold a 10 CFR part 50 
license.
    (e) The FY 2009 annual fees for licensees authorized to operate a 
test and research (non-power) reactor licensed under part 50 of this 
chapter, unless the reactor is exempted from fees under Sec.  
171.11(a), are as follows:

------------------------------------------------------------------------
 
------------------------------------------------------------------------
Research reactor............................................    $124,500
Test reactor................................................    $124,500
------------------------------------------------------------------------

    8. In Sec.  171.16, paragraphs (b), (c), (d), and the introductory 
text of paragraph (e) are revised to read as follows:


Sec.  171.16  Annual fees: 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.

* * * * *
    (b) The annual fee is comprised of a base annual fee and an 
allocation for fee-relief adjustment. The activities comprising the 
fee-relief adjustment are shown in paragraph (e) of this section. The 
base annual fee is the sum of budgeted costs for following activities:
* * * * *
    (c) A licensee who is required to pay an annual fee under this 
section may qualify as a small entity. If a licensee qualifies as a 
small entity and provides the Commission with the proper certification 
along with its annual fee payment, the licensee may pay reduced annual 
fees as shown in the following table. Failure to file a small entity 
certification in a timely manner could result in the denial of any 
refund that might otherwise be due. The small entity fees are as 
follows:

------------------------------------------------------------------------
                                                              Maximum
                                                            annual fee
                                                           per licensed
                                                             category
------------------------------------------------------------------------
Small Businesses Not Engaged in Manufacturing (Average
 gross receipts over last 3 completed fiscal years):
    $450,000 to $6.5 million............................          $1,900
    Less than 450,000...................................             400
Small Not-For-Profit Organizations (Annual Gross
 Receipts):
    $450,000 to $6.5 million............................           1,900
    Less than $450,000..................................             400
Manufacturing entities that have an average of 500
 employees or fewer:
    35 to 500 employees.................................           1,900
    Fewer than 35 employees.............................             400
Small Governmental Jurisdictions (Including publicly
 supported educational institutions) (Population):
    20,000 to 50,000....................................           1,900
    Fewer than 20,000...................................             400
Educational Institutions that are not State or Publicly
 Supported, and have 500 Employees or Fewer:
    35 to 500 employees.................................           1,900
    Fewer than 35 employees.............................             400
------------------------------------------------------------------------

    (d) The FY 2009 annual fees are comprised of a base annual fee and 
an allocation for fee-relief adjustment. The activities comprising the 
FY 2009 fee-relief adjustment are shown for convenience in paragraph 
(e) of this section. The FY 2009 annual fees for materials licensees 
and holders of certificates, registrations or approvals subject to fees 
under this section are shown in the following table:

   Schedule of Materials Annual Fees and Fees for Government Agencies
                             Licensed by NRC
                     [See footnotes at end of table]
------------------------------------------------------------------------
                                                           Annual fees 1
             Category of materials licenses                     2 3
------------------------------------------------------------------------
1. Special nuclear material:
A. (1) Licenses for possession and use of U-235 or
 plutonium for fuel fabrication activities.
(a) Strategic Special Nuclear Material (High Enriched         $4,721,000
 Uranium) [Program Code(s): 21130]......................
(b) Low Enriched Uranium in Dispersible Form Used for          1,659,000
 Fabrication of Power Reactor Fuel [Program Code(s):
 21210].................................................
(2) All other special nuclear materials licenses not
 included in Category 1.A.(1) which are licensed for
 fuel cycle activities.
(a) Facilities with limited operations [Program Code(s):         770,000
 21310, 21320]..........................................
(b) Gas centrifuge enrichment demonstration facilities..         924,000
(c) Others, including hot cell facilities...............         411,000
B. Licenses for receipt and storage of spent fuel and           \11\ N/A
 reactor-related Greater than Class C (GTCC) waste at an
 independent spent fuel storage installation (ISFSI)
 [Program Code(s): 23200]...............................
C. Licenses for possession and use of special nuclear              2,700
 material in sealed sources contained in devices used in
 industrial measuring systems, including x-ray
 fluorescence analyzers [Program Code(s): 22140]........
D. All other special nuclear material licenses, except             7,700
 licenses authorizing special nuclear material in
 unsealed form in combination that would constitute a
 critical quantity, as defined in ( 150.11 of this
 chapter, for which the licensee shall pay the same fees
 as those for Category 1.A.(2) [Program Code(s): 22110,
 22111, 22120, 22131, 22136, 22150, 22151, 22161, 22163,
 22170, 23100, 23300, 23310]............................
E. Licenses or certificates for the operation of a             2,823,000
 uranium enrichment facility [Program Code(s): 21200]...
2. Source material:

[[Page 9151]]

 
A. (1) Licenses for possession and use of source                 975,000
 material for refining uranium mill concentrates to
 uranium hexafluoride [Program Code(s): 11400]..........
(2) Licenses for possession and use of source material
 in recovery operations such as milling, in-situ
 recovery, heap-leaching, 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
 (tailings) from source material recovery operations, as
 well as licenses authorizing the possession and
 maintenance of a facility in a standby mode.
(a) Conventional and Heap Leach facilities [Program               32,200
 Code(s): 11100]........................................
(b) Basic In Situ Recovery facilities [Program Code(s):           30,600
 11500].................................................
(c) Expanded In Situ Recovery facilities [Program                 34,700
 Code(s): 11500]........................................
(d) In Situ Recovery Resin facilities...................         \5\ N/A
(e) Resin Toll Milling facilities.......................         \5\ N/A
(f) Other facilities \4\ [Program Code(s): 11700].......         \5\ N/A
(3) Licenses that authorize the receipt of byproduct             \5\ N/A
 material, as defined in Section 11e.(2) of the Atomic
 Energy Act, from other persons for possession and
 disposal, except those licenses subject to the fees in
 Category 2.A.(2) or Category 2.A.(4) [Program Code(s):
 11600].................................................
(4) Licenses that authorize the receipt of byproduct              10,500
 material, as defined in Section 11e.(2) of the Atomic
 Energy Act, from other persons for possession and
 disposal incidental to the disposal of the uranium
 waste tailings generated by the licensee's milling
 operations, except those licenses subject to the fees
 in Category 2.A.(2)....................................
(5) Licenses that authorize the possession of source               7,300
 material related to removal of contaminants (source
 material) from drinking water..........................
B. Licenses that authorize only the possession, use and/           1,330
 or installation of source material for shielding
 [Program Code(s): 11210]...............................
C. All other source material licenses [Program Code(s):           17,700
 11200, 11220, 11221, 11230, 11300, 11800, 11810].......
3. Byproduct material:
A. Licenses of broad scope for possession and use of              40,600
 byproduct material issued under parts 30 and 33 of this
 chapter for processing or manufacturing of items
 containing byproduct material for commercial
 distribution [Program Code(s): 03211, 03212, 03213]....
B. Other licenses for possession and use of byproduct             10,500
 material issued under part 30 of this chapter for
 processing or manufacturing of items containing
 byproduct material for commercial distribution [Program
 Code(s): 03214, 03215, 22135, 22162]...................
C. Licenses issued under Sec.  Sec.   32.72 and/or 32.74          13,600
 of this chapter authorizing the processing or
 manufacturing and distribution or redistribution of
 radiopharmaceuticals, generators, reagent kits and/or
 sources and devices containing byproduct material. This
 category also includes the possession and use of source
 material for shielding authorized under part 40 of this
 chapter when included on the same license. This
 category does not apply to licenses issued to nonprofit
 educational institutions whose processing or
 manufacturing is exempt under ( 171.11(a)(1). These
 licenses are covered by fee under Category 3.D.
 [Program Code(s): 02500, 02511, 02513].................
D. Licenses and approvals issued under Sec.  Sec.                  8,900
 32.72 and/or 32.74 of this chapter authorizing
 distribution or redistribution of radiopharmaceuticals,
 generators, reagent kits and/or sources or devices not
 involving processing of byproduct material. This
 category includes licenses issued under ((Sec.  Sec.
 32.72 and 32.74 of this chapter to nonprofit
 educational institutions whose processing or
 manufacturing is exempt under Sec.   171.11(a)(1). This
 category also includes the possession and use of source
 material for shielding authorized under part 40 of this
 chapter when included on the same license [Program
 Code(s): 02512, 02514].................................
E. Licenses for possession and use of byproduct material           6,800
 in sealed sources for irradiation of materials in which
 the source is not removed from its shield (self-
 shielded units) [Program Code(s): 03510, 03520]........
F. Licenses for possession and use of less than 10,000            12,900
 curies of byproduct material in sealed sources for
 irradiation of materials in which the source is exposed
 for irradiation purposes. This category also includes
 underwater irradiators for irradiation of materials in
 which the source is not exposed for irradiation
 purposes [Program Code(s): 03511]......................
G. Licenses for possession and use of 10,000 curies or            64,000
 more of byproduct material in sealed sources for
 irradiation of materials in which the source is exposed
 for irradiation purposes. This category also includes
 underwater irradiators for irradiation of materials in
 which the source is not exposed for irradiation
 purposes [Program Code(s): 03521]......................
H. Licenses issued under Subpart A of part 32 of this              8,500
 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 [Program
 Code(s): 03255]........................................
I. Licenses issued under Subpart A of part 32 of this             15,200
 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 [Program Code(s): 03250, 03251,
 03252, 03253, 03254, 03256]............................
J. Licenses issued under Subpart B of part 32 of this              3,400
 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
 distribution to persons generally licensed under part
 31 of this chapter [Program Code(s): 03240, 03241,
 03243].................................................
K. Licenses issued under Subpart B of part 32 of this              2,500
 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 of items that have been authorized for
 distribution to persons generally licensed under part
 31 of this chapter [Program Code(s): 03242, 03244].....
L. Licenses of broad scope for possession and use of              20,200
 byproduct material issued under parts 30 and 33 of this
 chapter for research and development that do not
 authorize commercial distribution [Program Code(s):
 01100, 01110, 01120, 03610, 03611, 03612, 03613].......

[[Page 9152]]

 
M. Other licenses for possession and use of byproduct              7,600
 material issued under part 30 of this chapter for
 research and development that do not authorize
 commercial distribution [Program Code(s): 03620].......
N. Licenses that authorize services for other licensees,          11,600
 except: (1) Licenses that authorize only calibration
 and/or leak testing services are subject to the fees
 specified in fee Category 3.P.; and (2) Licenses that
 authorize waste disposal services are subject to the
 fees specified in fee categories 4.A., 4.B., and 4.C.
 [Program Code(s): 03219, 03225, 03226].................
O. Licenses for possession and use of byproduct material          23,100
 issued under part 34 of this chapter for industrial
 radiography operations. This category also includes the
 possession and use of source material for shielding
 authorized under part 40 of this chapter when
 authorized on the same license [Program Code(s): 03310,
 03320].................................................
P. All other specific byproduct material licenses,                 3,800
 except those in Categories 4.A. through 9.D. [Program
 Code(s): 02400, 02410, 03120, 03121, 03122, 03123,
 03124, 03220, 03221, 03222, 03800, 03810, 22130].......
Q. Registration of devices generally licensed under part        \13\ N/A
 31 of this chapter.....................................
R. Possession of items or products containing radium-226
 identified in 10 CFR 31.12 which exceed the number of
 items or limits specified in that section:\14\
1. Possession of quantities exceeding the number of                3,400
 items or limits in 10 CFR 31.12(a)(4), or (5) but less
 than or equal to 10 times the number of items or limits
 specified [Program Code(s): 02700].....................
2. Possession of quantities exceeding 10 times the                 3,800
 number of items or limits specified in 10 CFR
 31.12(a)(4), or (5) [Program Code(s): 02710]...........
S. Licenses for production of accelerator-produced                12,300
 radionuclides [Program Code(s): 03210].................
4. Waste disposal and processing:
A. Licenses specifically authorizing the receipt of              \5\ N/A
 waste byproduct material, source material, or special
 nuclear material from other persons for the purpose of
 contingency storage or commercial land disposal by the
 licensee; or licenses authorizing contingency storage
 of low-level radioactive waste at the site of nuclear
 power reactors; or licenses for receipt of waste from
 other persons for incineration or other treatment,
 packaging of resulting waste and residues, and transfer
 of packages to another person authorized to receive or
 dispose of waste material [Program Code(s): 03231,
 03233, 03235, 03236, 06100, 06101].....................
B. Licenses specifically authorizing the receipt of               19,000
 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
 [Program Code(s): 03234]...............................
C. Licenses specifically authorizing the receipt of               12,000
 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 [Program Code(s): 03232]......................
5. Well logging:
A. Licenses for possession and use of byproduct                    9,900
 material, source material, and/or special nuclear
 material for well logging, well surveys, and tracer
 studies other than field flooding tracer studies
 [Program Code(s): 03110, 03111, 03112].................
B. Licenses for possession and use of byproduct material         \5\ N/A
 for field flooding tracer studies [Program Code(s):
 03113].................................................
6. Nuclear laundries:
A. Licenses for commercial collection and laundry of              36,100
 items contaminated with byproduct material, source
 material, or special nuclear material [Program Code(s):
 03218].................................................
7. Medical licenses:
A. Licenses issued under parts 30, 35, 40, and 70 of              17,800
 this chapter for human use of byproduct material,
 source material, or special nuclear material in sealed
 sources contained in gamma stereotactic radiosurgery
 units, teletherapy devices, or similar beam therapy
 devices. This category also includes the possession and
 use of source material for shielding when authorized on
 the same license [Program Code(s): 02300, 02310].......
B. Licenses of broad scope issued to medical                      36,800
 institutions or two or more physicians under 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. This category also
 includes the possession and use of source material for
 shielding when authorized on the same license.\9\
 [Program Code(s): 02110]...............................
C. Other licenses issued under parts 30, 35, 40, and 70            6,300
 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
 teletherapy devices. This category also includes the
 possession and use of source material for shielding
 when authorized on the same license.\9\ [Program
 Code(s): 02120, 02121, 02200, 02201, 02210, 02220,
 02230, 02231, 02240, 22160]............................
8. Civil defense:
A. Licenses for possession and use of byproduct                    3,400
 material, source material, or special nuclear material
 for civil defense activities [Program Code(s): 03710]..
9. Device, product, or sealed source safety evaluation:
A. Registrations issued for the safety evaluation of              10,700
 devices or products containing byproduct material,
 source material, or special nuclear material, except
 reactor fuel devices, for commercial distribution......
B. Registrations issued for the safety evaluation of              10,700
 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............................
C. Registrations issued for the safety evaluation of               7,500
 sealed sources containing byproduct material, source
 material, or special nuclear material, except reactor
 fuel, for commercial distribution......................
D. Registrations issued for the safety evaluation of               1,300
 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........
10. Transportation of radioactive material:
A. Certificates of Compliance or other package approvals
 issued for design of casks, packages, and shipping
 containers.

[[Page 9153]]

 
1. Spent Fuel, High-Level Waste, and plutonium air               \6\ N/A
 packages...............................................
2. Other Casks..........................................         \6\ N/A
B. Quality assurance program approvals issued under part
 71 of this chapter.
1. Users and Fabricators................................         \6\ N/A
2. Users................................................         \6\ N/A
C. Evaluation of security plans, route approvals, route          \6\ N/A
 surveys, and transportation security devices (including
 immobilization devices)................................
11. Standardized spent fuel facilities..................         \6\ N/A
12. Special Projects....................................         \6\ N/A
13. A. Spent fuel storage cask Certificate of Compliance         \6\ N/A
B. General licenses for storage of spent fuel under 10          \12\ N/A
 CFR 72.210.............................................
14. Decommissioning/Reclamation:
A. Byproduct, source, or special nuclear material                \7\ N/A
 licenses and other approvals authorizing
 decommissioning, decontamination, reclamation, or site
 restoration activities under parts 30, 40, 70, 72, and
 76 of this chapter.....................................
B. Site-specific decommissioning activities associated           \7\ N/A
 with unlicensed sites, whether or not the sites have
 been previously licensed...............................
15. Import and Export licenses..........................         \8\ N/A
16. Reciprocity.........................................         \8\ N/A
17. Master materials licenses of broad scope issued to           168,000
 Government agencies and other entities.................
18. Department of Energy:
A. Certificates of Compliance...........................    \10\ 679,000
B. Uranium Mill Tailings Radiation Control Act (UMTRCA)          342,000
 activities.............................................
------------------------------------------------------------------------
\1\ Annual fees will be assessed based on whether a licensee held a
  valid license with the NRC authorizing possession and use of
  radioactive material during the current FY. The annual fee is waived
  for those materials licenses and holders of certificates,
  registrations, and approvals who either filed for termination of their
  licenses or approvals or filed for possession only/storage licenses
  before October 1, 2007, and permanently ceased licensed activities
  entirely before this date. Annual fees for licensees who filed for
  termination of a license, downgrade of a license, or for a possession
  only license during the FY and for new licenses issued during the FY
  will be prorated in accordance with the provisions of Sec.   171.17.
  If a person holds more than one license, certificate, registration, or
  approval, the annual fee(s) will be assessed for each license,
  certificate, registration, or approval held by that person. For
  licenses that authorize more than one activity on a single license
  (e.g., human use and irradiator activities), annual fees will be
  assessed for each category applicable to the license. Licensees paying
  annual fees under Category 1.A.(1) are not subject to the annual fees
  for Categories 1.C. and 1.D. for sealed sources authorized in the
  license.
\2\ Payment of the prescribed annual fee does not automatically renew
  the license, certificate, registration, or approval for which the fee
  is paid. Renewal applications must be filed in accordance with the
  requirements of parts 30, 40, 70, 71, 72, or 76 of this chapter.
\3\ Each FY, fees for these materials licenses will be calculated and
  assessed in accordance with Sec.   171.13 and will be published in the
  Federal Register for notice and comment.
\4\ An other license includes licenses for extraction of metals, heavy
  metals, and rare earths.
\5\ There are no existing NRC licenses in these fee categories. If NRC
  issues a license for these categories, the Commission will consider
  establishing an annual fee for this type of license.
\6\ Standardized spent fuel facilities, 10 CFR parts 71 and 72
  Certificates of Compliance and related Quality Assurance program
  approvals, and special reviews, such as topical reports, are not
  assessed an annual fee because the generic costs of regulating these
  activities are primarily attributable to users of the designs,
  certificates, and topical reports.
\7\ Licensees in this category are not assessed an annual fee because
  they are charged an annual fee in other categories while they are
  licensed to operate.
\8\ No annual fee is charged because it is not practical to administer
  due to the relatively short life or temporary nature of the license.
\9\ Separate annual fees will not be assessed for pacemaker licenses
  issued to medical institutions that also hold nuclear medicine
  licenses under Categories 7.B. or 7.C.
\10\ This includes Certificates of Compliance issued to DOE that are not
  funded from the Nuclear Waste Fund.
\11\ See (Sec.   171.15(c)).
\12\ See (Sec.   171.15(c)).
\13\ No annual fee is charged for this category because the cost of the
  general license registration program applicable to licenses in this
  category will be recovered through 10 CFR part 170 fees.
\14\ Persons who possess radium sources that are used for operational
  purposes in another fee category are not also subject to the fees in
  this category. (This exception does not apply if the radium sources
  are possessed for storage only.)

    (e) The fee-relief adjustment allocated to annual fees includes the 
budgeted resources for the activities listed in paragraph (e)(1) of 
this section, plus the total budgeted resources for the activities 
included in paragraphs (e)(2) and (e)(3) of this section as reduced by 
the appropriations NRC receives for these types of activities. If the 
NRC's appropriations for these types of activities are greater than the 
budgeted resources for the activities included in paragraphs (e)(2) and 
(e)(3) of this section for a given FY, an annual fee reduction will be 
allocated to annual fees. The activities comprising the FY 2009 fee-
relief adjustment are as follows:
* * * * *

    Dated at Rockville, Maryland, this 20th day of February 2009.

    For the Nuclear Regulatory Commission.
J.E. Dyer,
Chief Financial Officer.

    Note: THIS APPENDIX WILL NOT APPEAR IN THE CODE OF FEDERAL 
REGULATIONS.

APPENDIX A TO THIS PROPOSED RULE--REGULATORY FLEXIBILITY ANALYSIS FOR 
THE PROPOSED AMENDMENTS TO 10 CFR PART 170 (LICENSE FEES) AND 10 CFR 
PART 171 (ANNUAL FEES)

I. Background

    The Regulatory Flexibility Act (RFA), as amended 5 U.S.C. 601 et 
seq., requires that agencies consider the impact of their 
rulemakings on small entities and, consistent with applicable 
statutes, consider alternatives to minimize these impacts on the 
businesses, organizations, and government jurisdictions to which 
they apply.
    The NRC has established standards for determining which NRC 
licensees qualify as

[[Page 9154]]

small entities (10 CFR 2.810). These size standards were based on 
the Small Business Administration's most common receipts-based size 
standards and include a size standard for business concerns that are 
manufacturing entities. The NRC uses the size standards to reduce 
the impact of annual fees on small entities by establishing a 
licensee's eligibility to qualify for a maximum small entity fee. 
The small entity fee categories in ( 171.16(c) of this proposed rule 
are based on the NRC's size standards.
    The NRC is required each year, under OBRA-90, as amended, to 
recover approximately 90 percent of its budget authority (less 
amounts appropriated from the NWF and for other activities 
specifically removed from the fee base), through fees to NRC 
licensees and applicants. In total, the NRC is required to bill 
approximately $864.8 million in fees for FY 2009.
    OBRA-90 requires that the schedule of charges established by 
rulemaking should fairly and equitably allocate the total amount to 
be recovered from the NRC's licensees and be assessed under the 
principle that licensees who require the greatest expenditure of 
agency resources pay the greatest annual charges. Since FY 1991, the 
NRC has complied with OBRA-90 by issuing a final rule that amends 
its fee regulations. These final rules have established the 
methodology used by the NRC in identifying and determining the fees 
to be assessed and collected in any given FY.
    The Commission is proposing to rebaseline its part 171 annual 
fees in FY 2009. Rebaselining fees results in increased annual fees 
for three classes of licensees (power reactors, non-power reactors, 
and fuel facilities), and decreased annual fees for two classes of 
licensees (spent fuel storage/reactor decommissioning and 
transportation). Within the materials users and uranium recovery fee 
classes, annual fees for most licensees increase, while annual fees 
for some licensees decrease.
    The Small Business Regulatory Enforcement Act (SBREFA) provides 
Congress with the opportunity to review agency rules before they go 
into effect. Under this legislation, the NRC annual fee rule is 
considered a ``major'' rule and must be reviewed by Congress and the 
Comptroller General before the rule becomes effective.
    The Small Business Regulatory Enforcement Act also requires that 
an agency prepare a guide to assist small entities in complying with 
each rule for which a final RFA is prepared. This analysis and the 
small entity compliance guide (Attachment 1) have been prepared for 
the FY 2009 fee rule as required by law.

II. Impact on Small Entities

    The fee rule results in substantial fees being charged to those 
individuals, organizations, and companies licensed by the NRC, 
including those licensed under the NRC materials program. The 
comments received on previous proposed fee rules and the small 
entity certifications received in response to previous final fee 
rules indicate that NRC licensees qualifying as small entities under 
the NRC's size standards are primarily materials licensees. 
Therefore, this analysis will focus on the economic impact of the 
fees on materials licensees. In FY 2008, about 26 percent of these 
licensees (approximately 1,100 licensees) qualified as small 
entities.
    The commenters on previous fee rulemakings consistently 
indicated that the following results would occur if the proposed 
annual fees were not modified:
    1. Large firms would gain an unfair competitive advantage over 
small entities. Commenters noted that small and very small companies 
(``Mom and Pop'' operations) would find it more difficult to absorb 
the annual fee than a large corporation or a high-volume type of 
operation. In competitive markets, such as soil testing, annual fees 
would put small licensees at an extreme competitive disadvantage 
with their much larger competitors because the proposed fees would 
be the same for a two-person licensee as for a large firm with 
thousands of employees.
    2. Some firms would be forced to cancel their licenses. A 
licensee with receipts of less than $500,000 per year stated that 
the proposed rule would, in effect, force it to relinquish its soil 
density gauge and license, thereby reducing its ability to do its 
work effectively. Other licensees, especially well-loggers, noted 
that the increased fees would force small businesses to get rid of 
the materials license altogether. Commenters stated that the 
proposed rule would result in about 10 percent of the well-logging 
licensees terminating their licenses immediately and approximately 
25 percent terminating their licenses before the next annual 
assessment.
    3. Some companies would go out of business.
    4. Some companies would have budget problems. Many medical 
licensees noted that, along with reduced reimbursements, the 
proposed increase of the existing fees and the introduction of 
additional fees would significantly affect their budgets. Others 
noted that, in view of the cuts by Medicare and other third party 
carriers, the fees would produce a hardship and some facilities 
would experience a great deal of difficulty in meeting this 
additional burden.
    Over 3,000 licenses, approvals, and registration terminations 
have been requested since the NRC first established annual fees for 
materials licenses. Although some of these terminations were 
requested because the license was no longer needed or licenses or 
registrations could be combined, indications are that other 
termination requests were due to the economic impact of the fees.
    To alleviate the significant impact of the annual fees on a 
substantial number of small entities, the NRC considered the 
following alternatives in accordance with the RFA in developing each 
of its fee rules since FY 1991.
    1. Base fees on some measure of the amount of radioactivity 
possessed by the licensee (e.g., number of sources).
    2. Base fees on the frequency of use of the licensed radioactive 
material (e.g., volume of patients).
    3. Base fees on the NRC size standards for small entities.
    The NRC has reexamined its previous evaluations of these 
alternatives and continues to believe that establishment of a 
maximum fee for small entities is the most appropriate and effective 
option for reducing the impact of its fees on small entities.

III. Maximum Fee

    The RFA and its implementing guidance do not provide specific 
guidelines on what constitutes a significant economic impact on a 
small entity; therefore, the NRC has no benchmark to assist it in 
determining the amount or the percent of gross receipts that should 
be charged to a small entity. In developing the maximum small entity 
annual fee in FY 1991, the NRC examined its 10 CFR part 170 
licensing and inspection fees and Agreement State fees for those fee 
categories which were expected to have a substantial number of small 
entities. Six Agreement States (Washington, Texas, Illinois, 
Nebraska, New York, and Utah), were used as benchmarks in the 
establishment of the maximum small entity annual fee in FY 1991.
    The NRC maximum small entity fee was established as an annual 
fee only. In addition to the annual fee, NRC small entity licensees 
were required to pay amendment, renewal and inspection fees. In 
setting the small entity annual fee, NRC ensured that the total 
amount small entities paid annually would not exceed the maximum 
paid in the six benchmark Agreement States.
    Of the six benchmark states, the maximum Agreement State fee of 
$3,800 in Washington was used as the ceiling for the total fees. 
Thus the NRC's small entity fee was developed to ensure that the 
total fees paid by NRC small entities would not exceed $3,800. Given 
the NRC's FY 1991 fee structure for inspections, amendments, and 
renewals, a small entity annual fee established at $1,800 allowed 
the total fee (small entity annual fee plus yearly average for 
inspections, amendments and renewal fees) for all categories to fall 
under the $3,800 ceiling.
    In FY 1992, the NRC introduced a second, lower tier to the small 
entity fee in response to concerns that the $1,800 fee, when added 
to the license and inspection fees, still imposed a significant 
impact on small entities with relatively low gross annual receipts. 
For purposes of the annual fee, each small entity size standard was 
divided into an upper and lower tier. Small entity licensees in the 
upper tier continued to pay an annual fee of $1,800 while those in 
the lower tier paid an annual fee of $400.
    Based on the changes that had occurred since FY 1991, the NRC 
re-analyzed its maximum small entity annual fees in FY 2000, and 
determined that the small entity fees should be increased by 25 
percent to reflect the increase in the average fees paid by other 
materials licensees since FY 1991, as well as changes in the fee 
structure for materials licensees. The structure of the fees that 
NRC charged to its materials licensees changed during the period 
between 1991 and 1999. Costs for materials license inspections, 
renewals, and amendments, which were previously recovered through 
part 170 fees for services, are now included in the part 171 annual 
fees assessed to materials licensees. As a result of the 25 percent 
increase, the

[[Page 9155]]

maximum small entity annual fee increased from $1,800 to $2,300 in 
FY 2000. Although the maximum annual fee for small entities 
increased from $1,800 to $2,300, the total fee for many small 
entities was reduced because they no longer paid part 170 fees for 
services. The costs not recovered from small entities were allocated 
to other materials licensees and to power reactors.
    While reducing the impact on many small entities, the NRC 
determined that the maximum annual fee of $2,300 for small entities 
may continue to have a significant impact on materials licensees 
with annual gross receipts in the thousands of dollars range. 
Therefore, the NRC continued to provide a lower-tier small entity 
annual fee for small entities with relatively low gross annual 
receipts, and for manufacturing concerns and educational 
institutions not State or publicly supported, with fewer than 35 
employees. The NRC also increased the lower tier small entity fee by 
the same percentage increase to the maximum small entity annual fee. 
This 25 percent increase resulted in the lower tier small entity fee 
increasing from $400 to $500 in FY 2000.
    The NRC stated in the RFA for the FY 2001 final fee rule that it 
would re-examine the small entity fees every two years, in the same 
years in which it conducts the biennial review of fees as required 
by the Chief Financial Officer's Act. Accordingly, the NRC examined 
the small entity fees again in FY 2003 and FY 2005, and determined 
that a change was not warranted to the small entity fees established 
in FY 2001.
    As part of the small entity review in FY 2007, the NRC also 
considered whether it should establish reduced fees for small 
entities under part 170. The NRC received one comment requesting 
that such small entity fees be considered for certain export 
licenses, particularly in light of the recent increases to part 170 
fees for these licenses. Because the NRC's part 170 fees are not 
assessed to a licensee or applicant on a regular basis (i.e., they 
are only assessed when a licensee or applicant requests a specific 
service from the NRC), the NRC does not believe that the impact of 
its part 170 fees warrants a fee reduction for small entities under 
part 170, in addition to the part 171 small entity fee reduction. 
Regarding export licenses, in particular, the NRC notes that 
interested parties can submit a single application for a broad 
scope, multi-year license that permits exports to multiple 
countries. Because the NRC's fees are charged per application, this 
streamlining process minimizes the fees for export applicants. 
Because a single NRC fee can cover numerous exports, and because 
there are a limited number of entities who apply for these licenses, 
the NRC does not anticipate that the part 170 export fees will have 
a significant impact on a substantial number of small entities. 
Therefore, the NRC retained the $2,300 small entity annual fee and 
the $500 lower tier small entity annual fee for FY 2007, and FY 
2008.
    For the biennial review of the FY 2009 small entity fees, the 
NRC conducted an in-depth review. The review noted the significant 
changes between FY 2000 and FY 2008 in both the external and 
internal environment which has impacted fees for NRC's small 
materials users licensees. Since FY 2000 the number of small entity 
licensees in the upper tier has increased approximately 53 percent. 
In addition, due to changes in the law, NRC is now only required to 
recover 90 percent of its budget authority compared to the 100 
percent recovery requirement in FY 2000. This ten percent fee relief 
has influenced the small materials users' annual fees. A decrease in 
the NRC's budget allocation to the small materials users has also 
influenced their annual fees in the last two years. Based on the 
review, the NRC will change the small entity fee for FY 2009 and 
establish a new methodology for reviewing the small entity fees 
every other year. The NRC will now determine the maximum small 
entity fee each biennial year using a fixed percentage of 39 percent 
applied to the prior two-year weighted average of small materials 
users fees for all fee categories which have small entity licensees.
    For FY 2009, these changes result in a maximum small entity fee 
of $1,900 and a lower tier annual fee of $400. The advantage of the 
new methodology is that the NRC's small entity licensees will be 
able to predict the change in their fee in the biennial year based 
on the small materials fees for the previous two years. Using a two-
year weighted average will help smooth the fluctuations caused by 
programmatic and budget variables and will reflect the importance of 
the fee categories with the greater number of small entities. Since 
the current small entity annual fee of $2,300 is 39 percent of the 
two-year weighted average for all fee categories in FY 2005 and FY 
2006 that have an upper tier small entity licensee, the agency will 
retain the 39 percent as the percentage applied to the prior two-
year weighted average of small materials users fees. The lower tier 
annual fee remains at 22 percent of the maximum small entity annual 
fee.

IV. Summary

    The NRC has determined that the 10 CFR part 171 annual fees 
significantly impact a substantial number of small entities. A 
maximum fee for small entities strikes a balance between the 
requirement to recover 90 percent of the NRC budget and the 
requirement to consider means of reducing the impact of the fee on 
small entities. Based on its regulatory flexibility analysis, the 
NRC concludes that a maximum annual fee of $1,900 for small entities 
and a lower-tier small entity annual fee of $400 for small 
businesses and not-for-profit organizations with gross annual 
receipts of less than $450,000, small governmental jurisdictions 
with a population of fewer than 20,000, small manufacturing entities 
that have fewer than 35 employees, and educational institutions that 
are not State or publicly supported and have fewer than 35 employees 
reduces the impact on small entities. At the same time, these 
reduced annual fees are consistent with the objectives of OBRA-90. 
Thus, the fees for small entities maintain a balance between the 
objectives of OBRA-90 and the RFA.
    In 2007, the NRC revised its receipts-based size standards (72 
FR 44951, August 10, 2007) to conform to the Small Business Agency 
standards. The maximum average gross annual receipts (upper tier) to 
qualify as a small entity were changed to $6.5 million from $5 
million. The NRC is now proposing to revise the small entity lower 
tier receipts-based threshold to $450,000 from $350,000. This change 
is approximately the same percentage adjustment as the change in the 
upper tier receipts-based standard.

ATTACHMENT 1 TO APPENDIX A--U.S. Nuclear Regulatory Commission Small 
Entity Compliance Guide; Fiscal Year 2009

Contents

Introduction
NRC Definition of Small Entity
NRC Small Entity Fees
Instructions for Completing NRC Form 526

Introduction

    The Congressional Review Act requires all Federal agencies to 
prepare a written guide for each ``major'' final rule, as defined by 
the Act. The NRC's fee rule, published annually to comply with the 
Omnibus Budget Reconciliation Act of 1990 (OBRA-90), as amended, is 
considered a ``major'' rule under the Congressional Review Act. 
Therefore, in compliance with the law, this guide has been prepared 
to assist NRC materials licensees in complying with the FY 2009 fee 
rule.
    Licensees may use this guide to determine whether they qualify 
as a small entity under NRC regulations and are eligible to pay 
reduced FY 2009 annual fees assessed under 10 CFR part 171. The NRC 
has established two tiers of annual fees for those materials 
licensees who qualify as small entities under the NRC's size 
standards.
    Licensees who meet the NRC's size standards for a small entity 
(listed in 10 CFR 2.810) must submit a completed NRC Form 526 
``Certification of Small Entity Status for the Purposes of Annual 
Fees Imposed under 10 CFR Part 171'' to qualify for the reduced 
annual fee. This form can be accessed on the NRC's Web site at 
http://www.nrc.gov. The form can then be accessed by selecting 
``Business with NRC,'' then ``NRC Forms,'' selecting NRC Form 526. 
For licensees who cannot access the NRC's Web site, NRC Form 526 may 
be obtained through the local point of contact listed in the NRC's 
``Materials Annual Fee Billing Handbook,'' NUREG/BR-0238, which is 
enclosed with each annual fee billing. Alternatively, the form may 
be obtained by calling the fee staff at 301-415-7554, or by e-
mailing the fee staff at <a href="/cdn-cgi/l/email-protection#781e1d1d0b560a1d0b170d0a1b1d38160a1b561f170e"><span class="__cf_email__" data-cfemail="7b1d1e1e0855091e08140e09181e3b150918551c140d">[email protected]</span></a>. The completed form, 
the appropriate small entity fee, and the payment copy of the 
invoice should be mailed to the U.S. Nuclear Regulatory Commission, 
License Fee Team, at the address indicated on the invoice. Failure 
to file the NRC small entity certification Form 526 in a timely 
manner may result in the denial of any refund that might otherwise 
be due.

NRC Definition of Small Entity

    For purposes of compliance with its regulations (10 CFR 2.810), 
the NRC has defined a small entity as follows:
    (1) Small business--a for-profit concern that provides a 
service, or a concern that is not engaged in manufacturing, with 
average

[[Page 9156]]

gross receipts of $6.5 million or less over its last 3 completed 
fiscal years;
    (2) Manufacturing industry--a manufacturing concern with an 
average of 500 or fewer employees based on employment during each 
pay period for the preceding 12 calendar months;
    (3) Small organizations--a not-for-profit organization that is 
independently owned and operated and has annual gross receipts of 
$6.5 million or less;
    (4) Small governmental jurisdiction--a government of a city, 
county, town, township, village, school district or special 
district, with a population of fewer than 50,000;
    (5) Small educational institution--an educational institution 
supported by a qualifying small governmental jurisdiction, or one 
that is not State or publicly supported and has 500 or fewer 
employees.\1\
---------------------------------------------------------------------------

    \1\ An educational institution referred to in the size standards 
is an entity whose primary function is education, whose programs are 
accredited by a nationally recognized accrediting agency or 
association, who is legally authorized to provide a program of 
organized instruction or study, who provides an educational program 
for which it awards academic degrees, and whose educational programs 
are available to the public.
---------------------------------------------------------------------------

    To further assist licensees in determining if they qualify as a 
small entity, the following guidelines are provided, which are based 
on the Small Business Administration's regulations (13 CFR part 
121).
    (1) A small business concern is an independently owned and 
operated entity which is not considered dominant in its field of 
operations.
    (2) The number of employees means the total number of employees 
in the parent company, any subsidiaries and/or affiliates, including 
both foreign and domestic locations (i.e., not solely the number of 
employees working for the licensee or conducting NRC licensed 
activities for the company).
    (3) Gross annual receipts includes all revenue received or 
accrued from any source, including receipts of the parent company, 
any subsidiaries and/or affiliates, and account for both foreign and 
domestic locations. Receipts include all revenues from sales of 
products and services, interest, rent, fees, and commissions, from 
whatever sources derived (i.e., not solely receipts from NRC 
licensed activities).
    (4) A licensee who is a subsidiary of a large entity, including 
a foreign entity, does not qualify as a small entity.

NRC Small Entity Fees

    In 10 CFR 171.16(c), the NRC has established two tiers of fees 
for licensees that qualify as a small entity under the NRC's size 
standards. The fees are as follows:

------------------------------------------------------------------------
                                                              Maximum
                                                          annual fee per
                                                              licensed
                                                             category
------------------------------------------------------------------------
Small Businesses Not Engaged in Manufacturing (Average
 gross receipts over last 3 completed fiscal years):
    $450,000 to $6.5 million............................          $1,900
    Less than $450,000..................................             400
Small Not-For-Profit Organizations (Annual Gross
 Receipts):
    $450,000 to $6.5 million............................           1,900
    Less than $450,000..................................             400
Manufacturing entities that have an average of 500
 employees or fewer:
    35 to 500 employees.................................           1,900
    Fewer than 35 employees.............................             400
Small Governmental Jurisdictions (Including publicly
 supported educational institutions) (Population):
    20,000 to 50,000....................................           1,900
    Fewer than 20,000...................................             400
Educational Institutions that are not State or Publicly
 Supported, and have 500 Employees or Fewer:
    35 to 500 employees.................................           1,900
    Fewer than 35 employees.............................             400
------------------------------------------------------------------------

Instructions for Completing NRC Small Entity Form 526

    1. Complete all items on NRC Form 526 as follows:

    (Note: Incomplete or improperly completed forms will be returned 
as unacceptable.)

    (a) Enter the license number and invoice number exactly as they 
appear on the annual fee invoice.
    (b) Enter the North American Industry Classification System 
(NAICS).
    (c) Enter the licensee's name and address exactly as they appear 
on the invoice. Annotate name and/or address changes for billing 
purposes on the payment copy of the invoice--include contact's name, 
telephone number, e-mail address, and company Web site address. 
Correcting the name and/or address on NRC Form 526 or on the invoice 
does not constitute a request to amend the license.
    (d) Check the appropriate size standard under which the licensee 
qualifies as a small entity. Check one box only. Note the following:
    (i) A licensee who is a subsidiary of a large entity, including 
foreign entities, does not qualify as a small entity. The 
calculation of a firm's size includes the employees or receipts of 
all affiliates. Affiliation with another concern is based on the 
power to control, whether exercised or not. Such factors as common 
ownership, common management and identity of interest (often found 
in members of the same family), among others, are indications of 
affiliation. The affiliated business concerns need not be in the 
same line of business.
    (ii) Gross annual receipts, as used in the size standards, 
include all revenue received or accrued by your company from all 
sources, regardless of the form of the revenue and not solely 
receipts from licensed activities.
    (iii) NRC's size standards on small entity are based on the 
Small Business Administration's regulations (13 CFR part 121).
    (iv) The size standards apply to the licensee, not to the 
individual authorized users who may be listed in the license.
    2. If the invoice states the ``Amount Billed Represents 50% 
Proration,'' the amount due is not the prorated amount shown on the 
invoice but rather one-half of the maximum small entity annual fee 
shown on NRC Form 526 for the size standard under which the licensee 
qualifies (either $950 or $200) for each category billed.
    3. If the invoice amount is less than the reduced small entity 
annual fee shown on this form, pay the amount on the invoice; there 
is no further reduction. In this case, do not file NRC Form 526. 
However, if the invoice amount is greater than the reduced small 
entity annual fee, file NRC Form 526 and pay the amount applicable 
to the size standard you checked on the form.
    4. The completed NRC Form 526 must be submitted with the 
required annual fee payment and the ``Payment Copy'' of the invoice 
to the address shown on the invoice.
    5. 10 CFR 171.16(c)(3) states licensees shall submit a new 
certification with its annual fee payment each year. Failure to 
submit NRC Form 526 at the time the annual fee is paid will require 
the licensee to pay the full amount of the invoice.
    The NRC sends invoices to its licensees for the full annual fee, 
even though some licensees qualify for reduced fees as small 
entities. Licensees who qualify as small entities and file NRC Form 
526, which certifies eligibility for small entity fees, may pay the 
reduced fee, which is either $1,900 or $400 for a full year, 
depending on the size of the entity, for each fee category shown on 
the invoice. Licensees granted a license during the first 6 months 
of the fiscal year,

[[Page 9157]]

and licensees who file for termination or for a ``possession only'' 
license and permanently cease licensed activities during the first 6 
months of the fiscal year, pay only 50 percent of the annual fee for 
that year. Such invoices state that the ``amount billed represents 
50% proration.''
    Licensees must file a new small entity form (NRC Form 526) with 
the NRC each fiscal year to qualify for reduced fees in that year. 
Because a licensee's ``size,'' or the size standards, may change 
from year to year, the invoice reflects the full fee and licensees 
must complete and return NRC Form 526 for the fee to be reduced to 
the small entity fee amount. LICENSEES WILL NOT RECEIVE A NEW 
INVOICE FOR THE REDUCED AMOUNT. The completed NRC Form 526, the 
payment of the appropriate small entity fee, and the ``Payment 
Copy'' of the invoice should be mailed to the U.S. Nuclear 
Regulatory Commission, License Fee Team at the address indicated on 
the invoice.
    If you have questions regarding the NRC's annual fees, please 
contact the license fee staff at 301-415-7554, e-mail the fee staff 
at <a href="/cdn-cgi/l/email-protection#85e3e0e0f6abf7e0f6eaf0f7e6e0c5ebf7e6abe2eaf3"><span class="__cf_email__" data-cfemail="f89e9d9d8bd68a9d8b978d8a9b9db8968a9bd69f978e">[email protected]</span></a>, or write to the U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, Attention: Office of the 
Chief Financial Officer.
    False certification of small entity status could result in civil 
sanctions being imposed by the NRC under the Program Fraud Civil 
Remedies Act, 31 U.S.C. 3801 et seq. NRC's implementing regulations 
are found at 10 CFR part 13.

[FR Doc. E9-4229 Filed 2-27-09; 8:45 am]
BILLING CODE 7590-01-P


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