32452 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

NUCLEAR REGULATORY

COMMISSION

10 CFR Parts 150, 170 and 171

RIN 3150–AG73

Revision of Fee Schedules; Fee

Recovery for FY 2001

AGENCY: Nuclear Regulatory

Commission.

ACTION: Final rule.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is amending the

licensing, inspection, and annual fees

charged to its applicants and licensees.

The amendments are necessary to

implement the Omnibus Budget

Reconciliation Act of 1990 (OBRA–90),

as amended, which requires that the

NRC recover approximately 98 percent

of its budget authority in fiscal year (FY)

2001, less the amounts appropriated

from the Nuclear Waste Fund (NWF)

and the General Fund. The amount to be

recovered for FY 2001 is approximately

$453.3 million.

EFFECTIVE DATE: August 13, 2001.

ADDRESSES: The comments received and

the agency work papers that support

these final changes to 10 CFR parts 170

and 171 are available electronically at

the NRC’s Public Electronic Reading

Room on the Internet at

http://www.nrc.gov/NRC/ADAMS/

index.html. From this site, the public

can gain entry into the NRC’s

Agencywide Documents Access and

Management System (ADAMS), which

provides text and image files of NRC’s

public documents. For more

information, contact the NRC Public

Document Room (PDR) Reference staff

at 1–800–397–4209, or 301–415–4737,

or by email to pdr@nrc.gov. If you do

not have access to ADAMS or if there

are problems in accessing the

documents located in ADAMS, contact

the PDR.

Comments received may also be

viewed via the NRC’s interactive

rulemaking website (http.//

ruleforum.llnl.gov). This site provides

the ability to upload comments as files

(any format), if your web browser

supports that function. For information

about the interactive rulemaking site,

contact Ms. Carol Gallagher, 301–415–

5905; e-mail CAG@nrc.gov.

For a period of 90 days after the

effective date of this final rule, the work

papers may also be examined at the

NRC Public Document Room, Room O–

1F22, One White Flint North, 11555

Rockville Pike, Rockville, MD 20852–

2738.

FOR FURTHER INFORMATION CONTACT:

Glenda Jackson, Office of the Chief

Financial Officer, U.S. Nuclear

Regulatory Commission, Washington,

DC 20555–0001; Telephone 301–415–

6057.

SUPPLEMENTARY INFORMATION:

I. Background

II. Responses to Comments

III. Final Action

IV. Voluntary Consensus Standards

V. Environmental Impact: Categorical

Exclusion

VI. Paperwork Reduction Act Statement

VII. Regulatory Analysis

VIII. Regulatory Flexibility Analysis

IX. Backfit Analysis

X. Small Business Regulatory Enforcement

Fairness Act

I. Background

For FY 2001, the NRC is required to

recover through fees approximately 98

percent of its budget authority, less the

amounts appropriated from the Nuclear

Waste Fund (NWF) and from the

General Fund. The fee recovery amount

for FY 2001 is approximately $453.3

million.

For FYs 1991 through 2000, OBRA–

90, as amended, required that the NRC

recover approximately 100 percent of its

budget authority, less the amount

appropriated from the U.S. Department

of Energy (DOE) administered NWF, by

assessing fees. To address fairness and

equity concerns raised by the NRC

related to charging NRC license holders

for agency expenses that do not provide

a direct benefit to the licensee, the FY

2001 Energy and Water Development

Appropriations Act amended OBRA–90

to decrease the NRC’s fee recovery

amount from 100 percent to 98 percent

of the NRC’s budget authority in FY

2001. The OBRA–90 amendment further

decreases the fee recovery amount by an

additional two percent per year

beginning in FY 2002 until the fee

recovery amount is 90 percent by FY

2005.

In addition to the 2 percent reduction

to the fee recovery amount for FY 2001,

$3.2 million has been appropriated from

the General Fund for activities related to

regulatory reviews and assistance

provided to other Federal agencies and

States. The FY 2001 Energy and Water

Development Appropriations Act states

that this $3.2 million shall be excluded

from license fee revenues. The total

amount thus to be recovered for FY

2001 is approximately $453.3 million.

The NRC assesses two types of fees to

meet the requirements of OBRA–90, as

amended. First, license and inspection

fees, established at 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 costs of providing special

benefits to identifiable applicants and

licensees. Examples of the services

provided by the NRC for which these

fees are assessed are the review of

applications for new licenses, the

review of applications for renewal of

existing licenses, and the review of

requests for license amendments.

Second, annual fees, established in 10

CFR part 171 under the authority of

OBRA–90, recover generic and other

regulatory costs not otherwise recovered

through 10 CFR part 170 fees.

II. Responses to Comments

The NRC published a proposed rule

that presented the amendments

necessary to revise the licensing,

inspection, and annual fees charged to

its licensees and applicants for FY 2001

on March 28, 2001 (66 FR 16982).

Although the comment period ended on

April 27, 2001, the NRC evaluated the

13 comments which were received by

the close of business on May 7, 2001.

Many of the comments raised similar

issues. These comments have been

grouped, as appropriate, and addressed

as single issues in this final rule.

The comments and NRC’s responses

are as follows:

A. Legal Issues

1. Information Provided by NRC in

Support of Proposed Rule

Comment. One commenter urged the

NRC to provide licensees and the public

with a more detailed explanation of the

specific activities and associated costs

that form the basis for the part 171

annual fees, including detailed

information on the outstanding major

contracts, their purpose, and their costs.

The commenter stated that, to enable

stakeholders to provide meaningful

comment on the proposed rule, the NRC

should provide sufficient detail on the

costs associated with each component of

reactor regulation and other generic

costs. The commenter indicated that

this more detailed information would

allow licensees and the public to

provide more effective feedback and

comment on the efficiency of NRC’s

regulatory activities and would propel

the Commission to exercise its authority

to promote increased fiscal

responsibility.

Response. The NRC believes that

commenters were provided ample

information on which to base

constructive comments on NRC’s

proposed revisions to parts 170 and 171.

Consistent with the requirements of

OBRA–90, the proposed fees were

developed to recover approximately 98

percent of the NRC’s FY 2001 budget

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32453

authority from the various classes of

licensees. In addition to the descriptions

of the types of activities included in the

proposed fees and explanations of how

the fees were calculated to recover the

budgeted costs for those activities, the

proposed rule also announced that the

work papers supporting the proposed

rule were available for public

examination. As the proposed rule

stated, the work papers were available

in the NRC’s Agencywide Documents

Access and Management System

(ADAMS) for public examination

(Accession No. ML010860287). During

the 30-day comment period the work

papers were also available in the NRC

Public Document Room at One White

Flint North, 11555 Rockville Pike,

Rockville, MD for the public’s use. The

work papers include extensive

information detailing the activities and

the associated budgeted resources

allocated to the various classes of

licensees. The work papers show, by

strategic arena, the allocation of

budgeted costs for each planned

accomplishment within each program of

each strategic arena. In addition to the

detailed budget information contained

in the work papers, the NRC has made

available in the Public Document Room

NUREG–1100, Volume 16, ‘‘Budget

Estimates and Performance Plan, Fiscal

Year 2001 (February 2000),’’ which

discusses the NRC’s budget for FY 2001,

including the activities to be performed

in each strategic arena. The extensive

information available to the public

meets all legal requirements and the

NRC believes it provides the public with

sufficient information on which to base

their comments on the proposed fee

rule.

The NRC’s budgets and the manner in

which the NRC carries out its activities

are outside the scope of this rulemaking.

The purpose of this rulemaking is to

establish the fees necessary to recover

approximately 98 percent of the NRC’s

FY 2001 budget authority, less the

amounts appropriated from the NWF

and the General Fund, as required by

OBRA–90, as amended. Therefore the

commenter’s suggestion that more

detailed information would allow the

public to provide more effective

comments concerning the efficiencies of

NRC’s regulatory activities and the

manner in which NRC carries out its

fiscal responsibilities are not addressed

in this final rule.

B. Specific Part 170 Issues

1. Hourly Rates

Comment. Some commenters opposed

the $144 proposed hourly rate for the

materials program. As in similar

comments received from the uranium

recovery industry on the issue in

previous fee schedule rulemakings, the

commenters stated that the hourly rate

is excessive, is more than the

professional hourly rates charged by

national consulting firms, and should be

substantially reduced.

Response. The NRC’s hourly rates are

based on budgeted costs and must be

established at the revised levels to meet

the fee recovery requirements. The

professional FTE rates include not only

average salaries and benefits for

professional employees, but also a

prorated share of overhead costs, such

as supervisory and secretarial support

and information technology overhead

costs, as well as general and

administrative costs, such as rent, heat,

supplies, and payroll and human

resources staffs.

The proposed hourly rate of $144 for

the materials program is a very slight

increase over the $143 hourly rate for

FY 2000. As stated in the proposed rule,

the increase is primarily due to the

Government-wide pay increase in FY

2001. The revised hourly rates, coupled

with the direct contract costs, recover

through part 170 fees the full cost to the

NRC of providing special services to

specifically identifiable beneficiaries as

provided by the IOAA, and the revised

hourly rates plus direct contract costs

recover through part 171 annual fees the

required amount of NRC’s budgeted

costs for activities not recovered

through part 170 fees, as required by

OBRA–90, as amended. The NRC is

establishing in this final rule the revised

hourly rates necessary to accomplish the

fee recovery requirements. The

professional hourly rate for the reactor

program is $150, and the professional

hourly rate for the materials program is

$144. For part 170 activities, the rates

will be assessed for professional staff

time expended on or after the effective

date of this final rule.

2. Project Manager Billing Issues

Comment. Four comments were

received opposing NRC’s assessment of

Part 170 fees to uranium recovery

licensees to recover the costs for Project

Managers (PM) assigned to their

licenses. Commenters indicated that the

PM charges have become an additional

expense for the industry. These

commenters raised several specific

concerns with this fee recovery policy:

the PM costs represent administrative

charges that may or may not be directly

related to the licensee’s operations; the

PM charges include generic efforts, such

as rulemaking activities; licensees have

no way to control these costs because

the charges are allocated evenly among

the licensees to which that PM is

assigned; and the problem is

exacerbated when a PM is assigned to

only one, or in some cases only a few,

licensee(s) who must pay all of the

overhead costs associated with that PM.

Several commenters supported the redesignation of PMs assigned to uranium

recovery licenses as points of contact,

particularly for those licensees who are

not currently operating. One commenter

stated that to the extent the NRC is

required to recover these costs, it should

do so through the annual fee to spread

the costs more equitably across a range

of licensees. One commenter asserts that

the billing policy is an unjustified and

ultra vires (beyond NRC’s legitimate

powers) implementation of its OBRA

responsibilities, and that it cannot be

defended, particularly as a shift of costs

from part 171 fees to part 170 fees,

because there has not been a decrease in

the part 171 fees commensurate with the

increase in part 170 fees. Referring to an

NRC guidance document for staff hour

reporting and coding of activities in

NRC’s Regulatory Information Tracking

System (RITS) (the system used by the

NRC to record and track staff hours and

from which data is gathered for fee

billing purposes), the same commenter

charges that there is virtually no activity

a PM performs that is excluded from fee

recovery. The commenter claims that

licensees are billed for generic efforts,

despite statements to the contrary in the

final FY 1999 fee rule (64 FR 31448;

June 10, 1999), giving as an example

‘‘rulemaking oversight’’, which is

assigned a code in RITS. The same

commenter stated that nothing in the

statements of consideration for the FY

1999 final rule, which provided

examples of PM activities that would be

included in part 170 fees, indicated that

licensees would be charged for PM

activities for work on the NRC’s

accounting system or work for another

branch/office.

Response. The NRC assesses part 170

fees for PM activities under the

authority of the IOAA. In the FY 1999

fee rule, the NRC stated that expanding

the scope of part 170 to include, for

example, full cost recovery for PMs is

consistent with Title V of the IOAA,

interpretations of that legislation by the

Federal courts, and Commission

guidance. These guidelines provide that

part 170 fees may be assessed to persons

who are identifiable recipients of

‘‘special benefits’’ conferred by

specifically identified activities of the

NRC. Because PM activities are services

which the NRC provides to specific,

identifiable recipients, it is more

appropriate that the costs, less costs for

32454 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

generic activities and leave time, be

recovered through part 170 fees assessed

to the recipient of that service, rather

than through annual fees assessed to the

licensees in the class subject to annual

fees.

Contrary to the commenter’s claim,

generic activities conducted by PMs are

not recovered through part 170 fees. The

fact that rulemaking activities are

assigned a code in RITS does not mean

that costs for these generic activities are

included in PM costs assessed under

part 170. RITS is the system used by the

NRC’s major program offices for

recording staff hours, and the data is

used for many purposes. Although the

NRC’s part 170 billing system uses data

from RITS, it is programmed to exclude

RITS data related to activities that are

not subject to part 170 fees. Rulemaking

activities are one example of the types

of activities that are excluded from part

170 fee billing. Other examples of the

types of activities that are coded in RITS

but not billed under part 170 are

allegation followup activities, escalated

enforcement activities, and Combined

Federal Campaign activities.

Generic activities are those NRC

activities that broadly benefit classes or

subclasses of licensees. Examples of

generic activities, as stated in the FY

1999 final rule and reiterated in the FY

2000 final rule (64 FR 31451; June 10,

1999, and 65 FR 36947; June 12, 2000,

respectively), include rulemaking and

development of generic guidance

documents. General activities such as

training, general correspondence,

attending staff meetings, coordination

with and support to other offices, and

processing documents into the

Agencywide Documents Access and

Management System (ADAMS) are not

generic activities. In responding to

uranium recovery industry comments in

the FY 2000 final rule, the NRC listed

these examples of the types of PM

activities that are recovered through PM

part 170 fees. The examples provided by

the NRC in the FY 1999 and FY 2000

fee rules of PM activities to be billed

under part 170 and those excluded from

part 170 billing were not intended to be

complete lists. Of the 420 RITS codes

for use by PMs assigned to uranium

recovery and other types of materials

licenses, only 125 are identified for Part

170 billing purposes.

The PM activities charged under part

170 are general activities and activities

specifically related to the site, such as

licensing reviews. As the commenter

indicated, the general activities billed

under part 170 include time that a PM

spends in reporting to the NRC’s

accounting system. General activities

are part of the costs to the agency of

providing the PM services, and the NRC

continues to believe that the costs are

most appropriately recovered from the

licensees benefitting from the PM

services.

The concept that the assessment of

part 170 fees for PM activities increases

the costs to the uranium recovery class

is incorrect. PM charges might result in

an increase for a particular licensee at

a particular point in time. However,

billing for PM time under part 170 does

not cause an increase, or a decrease, in

the total fees assessed to the class. Based

on the OBRA–90 fee recovery

requirements, all budgeted costs

allocated to a class that are not

recovered through part 170 fees paid by

the class are recovered through annual

fees assessed to those licensees in the

class subject to the annual fees. Thus,

all budgeted costs allocated to a class

are paid by the class, either through part

170 fees or part 171 fees.

Although on the surface it may appear

to be more fair to recover the PM costs

through annual fees, the end result

would not necessarily be equitable to

those licensees paying the annual fees.

If, for example, the NRC were to

discontinue assessing part 170 fees to

uranium recovery licensees for PM

activities and all other conditions

remained the same, uranium recovery

licensees subject to annual fees would

pay more in total costs because those

uranium recovery licensees in

decommissioning are not subject to

annual fees and therefore would no

longer pay for the PMs assigned to their

site. Instead, the licensees authorized to

operate or in a standby status would pay

those PM costs through annual fees. To

illustrate this point, the estimated

average total PM part 170 fees paid per

year by uranium recovery licensees in

decommissioning or possession only

status is $322,000. If the NRC

eliminated PM activities from Part 170

fees for the uranium recovery class for

a full fiscal year, the 11 licensees

authorized to operate or in a standby

status would be assessed an additional

$322,000 in annual fees for that fiscal

year in order to recover those costs.

The NRC finds no basis at this time

to change its policy of recovering the

costs for PMs through part 170 fees, to

change the manner in which the costs

are spread among those licensees

assigned to one PM, or to change the

policy with regard to assessing one

licensee for all of the PM’s activities

when the PM is assigned to that one site

only. The NRC believes this is a fair and

equitable method of recovering these

costs.

3. Clarification of Fee Waiver Provisions

in § 170.21, Footnote 4 and § 170.31,

Footnote 5

Comment. Two comments were

received on the NRC’s clarification of

the fee waivers provided in 10 CFR

170.21, Footnote 4, criterion 3, and 10

CFR 170.31, Footnote 5, criterion (c) for

certain documents submitted to the

NRC. One commenter expressed

concern that the NRC is shifting cost

recovery for generic activities from part

171 to part 170. Both commenters

contend that the clarification will

discourage generic actions and is

inconsistent with the Commission’s

policies aimed at encouraging industry

organizations to work cooperatively

with the NRC and recognizing the

efficiencies and effectiveness to be

gained from these efforts. The

commenters assert that the clarification

represents a change in policy and will

discourage industry initiatives, which

serve to reduce NRC resource demands

and expedite resolution of issues on a

generic basis. One commenter further

contends that the clarification is

inconsistent with the NRC’s strategic

goal of making its activities and

decisions more effective, efficient, and

realistic, and recommends that NRC

retain ‘‘the original interpretation’’ of

the fee waiver.

Response. The NRC’s original

interpretation of the subject fee waiver

provisions has not changed, and has

been consistently applied in granting or

denying fee waiver requests. However,

the NRC has experienced an increase in

the number of fee waiver requests that

do not meet the criteria. The NRC

believes that this increase may be due,

at least in part, to the fact that the

statements of consideration in the FY

1994 fee rule concerning the waivers (59

FR 36895; July 20, 1994) were not

repeated in subsequent fee rulemakings

and are not codified in the regulations.

Therefore, licensees may be submitting

fee exemption requests that do not meet

the criteria because they may not be

familiar with the intent of the fee waiver

provisions.

As the statement of considerations for

the 1994 fee rule indicates, the fee

waiver provisions of criterion 3 of

Footnote 4 to § 170.21 and criterion (c)

of Footnote 5 to § 170.31 apply to

reports submitted for the purpose of

supporting NRC’s generic regulatory

improvements, such as development of

generic guidance and regulations and

resolution of safety issues applicable to

a class of licensees. The NRC has denied

fee waiver requests for reports/requests

that were not submitted for the purpose

of NRC’s regulatory improvements, such

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32455

as those submitted for the purpose of

furthering the industry’s generic actions.

Although the NRC may realize some

benefits from the review and approval of

reports/requests that are submitted for

purposes other than NRC’s generic

regulatory improvements, the primary

beneficiary of the review and approval

of such reports is the organization that

submitted the report. Assessing part 170

fees for these special services rendered

to identifiable recipients is consistent

with the provisions of the IOAA.

Contrary to one commenter’s view,

reports of this type do not represent

NRC generic activities. Therefore the

NRC is not shifting cost recovery for

generic activities out of part 171 to part

170.

To assist licensees in determining in

advance whether their submissions

meet the criteria for the fee waiver, the

NRC is, in this final rule, re-stating the

original statement of considerations for

the FY 1994 rule related to the fee

waivers, and is adding clarifying

language to the Footnotes that the

reports/requests must be submitted for

the purpose of NRC’s regulatory

improvements for the fee to be waived.

This is not a change in policy, is

consistent with how the fee waiver

provisions have been applied by the

NRC, and is not inconsistent with the

NRC’s strategic goals.

4. Invoice Information

Comment. Several commenters assert

that NRC’s invoices lack adequate

explanations of the work done and the

dates the work was performed. These

commenters urged the NRC to continue

its efforts to provide invoices that

contain more detailed information on

the specific costs. While recognizing

that this would require major revisions

to NRC’s billing system, commenters

contend that the change would serve the

NRC, its licensees, and the public well.

Response. As the NRC has stated in

response to similar comments on

previous rules, the NRC believes that

sufficient information is provided on

the invoices for licensees and applicants

to base payment of the costs assessed

under part 170. For NRC staff effort,

specific policies and procedures are in

place for NRC staff to follow in

recording time in RITS, which is the

NRC’s current system for tracking staff

hours expended. The system contains

specific codes for the various types of

licensing reviews, leave, training,

general administration effort, etc. From

RITS, the fee billing system captures the

NRC staff hours for activities billable

under part 170 as well as the work effort

code descriptions for those billable

hours. For these activities, the staff

hours, work effort codes, the name of

the staff member performing the work,

and the date the work was completed,

if applicable, are printed on the

enclosure to the part 170 invoices.

Currently, the work effort codes are the

only available data describing the work

performed, and they are the lowest level

of detail available in RITS. However, the

NRC believes that the summary work

descriptions shown on the invoices are

sufficient to allow licensees to identify

the subject of the NRC’s efforts.

Additionally, the inspection report

number is provided on inspection fee

bills. Further, as the NRC has stated in

previous rules, any applicant or licensee

who does not understand the charges or

needs more information in order to

understand the bill may request

additional details from the NRC. All

available information in support of the

bill will be provided. This has always

been an option available to licensees

and applicants who feel they need more

information on the costs billed.

For contractor costs billed to uranium

recovery licensees under part 170, the

NRC includes copies of the contractors’

summary cost reports with the invoices.

Again, any additional information that

is available is provided upon a specific

request of the applicant or licensee.

However, as the NRC has explained in

the past, the NRC does not plan to

develop additional systems solely to

provide additional information on its

fee invoices. Office of Management and

Budget Circular A–25, which provides

guidelines for Federal agencies to assess

fees for Government services, provides

that new cost accounting systems do not

need to be established solely for the

purpose of determining or estimating

full cost.

C. Specific Part 171 Issues

1. Fee Exemption for Educational

Institutions

Comment. One college holding an

NRC materials license commented that

the proposed fee rule would represent a

major financial burden to the college

and they would have to consider

terminating their license. The

commenter requested that NRC provide

a fee exemption for small colleges and

universities.

Response. The NRC has not changed

the existing fee exemptions for

nonprofit educational institutions. The

part 170 and part 171 fee exemptions for

nonprofit educational institutions were

not shown in the proposed rule for

public comment because only sections

of a regulation that are being considered

for change in a proposed rulemaking are

published in the Federal Register as

part of the rulemaking process.

As provided in 10 CFR 170.11(a)(4)

and 10 CFR 171.11(a)(1), fees are not

required for a license applied for by, or

issued to, a nonprofit educational

institution. Therefore, most colleges and

universities will continue to be exempt

from part 170 and part 171 fees.

However, the fee exemptions do not

apply to those licenses that authorize

human use; remunerated services to

other persons; distribution of byproduct,

source, or special nuclear materials or

products containing byproduct, source,

or special nuclear material; or activities

performed under a Government

contract.

2. Small Entity Fees

Comment. One commenter stated that

the range of $350,000 to $5,000,000 in

gross annual receipts for the two tiers of

annual fees for small entities is too

large. The commenter indicated that

their firm is at the lower end of the

range, paying the same annual fee as

another entity with four to five times

their gross revenue. The commenter

suggested that to help reduce the license

fee burden on smaller entities, the NRC

establish additional tiers between the

$350,000 and $5,000,000 range; for

example, a tier of $350,000 to

$1,500,000 in gross annual receipts with

an annual fee of $1,000, and a tier of

$1,500,000 to $5,000,000 with an annual

fee of $1,500.

Response. The NRC believes that the

two tiers of reduced annual fees

currently in place provide substantial

fee relief for small entities, including

those with relatively low annual gross

receipts. Reductions in fees for small

entities must be paid for by other NRC

licensees in order to meet the

requirements of OBRA–90, as amended,

to recover most of the NRC’s budget

through fees. While establishing more

tiers would provide additional fee relief

for some small entities, it would result

in an increase in the small entity

subsidy other licensees pay. The NRC

believes that in order to maintain a

reasonable balance between the

objectives of OBRA–90 and the of 1980

(RFA) requirement that the NRC

examine ways to minimize significant

impacts its rules may have on a

substantial number of small entities, no

further reductions to the fees should be

made.

The NRC established reduced annual

fees for small entities based on the RFA

requirement that if an agency cannot

certify that a rule will not significantly

impact a substantial number of small

entities, then a regulatory flexibility

analysis is required to examine the

32456 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

impacts on small entities and the

alternatives to minimize these impacts.

The NRC has performed a regulatory

flexibility analysis as part of its fee

rulemaking each year since annual fees

were first established in FY 1991 under

OBRA–90, based on the Commission’s

conclusion that the annual fees for

materials licensees result in substantial

fees being assessed to a significant

number of small entities.

To minimize the impacts of the

annual fees, the NRC has established a

maximum annual fee for licensees who

qualify as a small entity under NRC’s

size standards. In 1992, the NRC

established a lower tier small entity fee

to further reduce the impact of the

annual fees for those licensees with

relatively low gross annual receipts of

less than $250,000 and for small

governmental jurisdictions with a

relatively low population of less than

20,000 (57 FR 13625; April 17, 1992). In

establishing this lower tier, the NRC

stated that the additional tier would

substantially reduce the impact of the

annual fees for those licensees with

relatively low gross annual receipts,

while at the same time it would not

substantially increase the amount of fees

that other licensees would be required

to pay to subsidize the small entities.

In 1995, the NRC published a final

rule amending its size standards (60 FR

18344; April 11, 1995). One aspect of

the amendment was to add a size

standard of 500 or fewer employees for

business concerns that are

manufacturing entities. In the final FY

1995 fee rule, the gross-receipts level for

the lower-tier small entity fees was

increased to the current level of

$350,000, and a lower tier of less than

35 employees was established for

manufacturing entities.

For FY 2000, approximately 35

percent of the small entities qualifying

for reduced annual fees qualified for the

lower tier small entity fee. The NRC

believes that maintaining a single lower

tier annual fee for small entities with

relatively low gross annual receipts of

less than $350,000, for small

governmental jurisdictions with a

population of less than 20,000, and for

manufacturing entities that have an

average of less than 35 employees

continues to provide a further reduction

to the impact of the annual fees to a

significant number of small entities.

Comment. Two comments were

received concerning NRC’s proposal to

discontinue mailing NRC Form 526,

‘‘Certification of Small Entity Status for

the Purposes of Annual Fees Imposed

Under 10 CFR part 171,’’ with each

annual fee invoice. One of the

commenters indicated that the proposal

would result in a burden on the

licensees because they would have to

obtain the form by other means, and that

many of the ‘‘mom and pop’’ operations

may not have access to the Internet.

This commenter believes that, because

only a small percentage of the total

number of small entity forms submitted

are filed by licensees who do not qualify

for small entity status, the proposal

would unfairly penalize those who do

qualify as a small entity. The

commenter stated that because NRC

requires the form, the NRC is obligated

to supply it by a means that is accessible

to all licensees. The commenter

suggested that instead of discontinuing

mailing the form with the annual fee

invoices, the form be modified to make

it clear who qualifies and who does not

qualify as a small entity.

Both commenters stated that the

proposal would result in an additional

burden on NRC staff due to increased

telephone calls requesting the form and

staff efforts to mail or fax the form to

those requesting it. One commenter

believes that many licensees do not read

the proposed and final fee rules, and

therefore would not be aware of the

revised policy. This would result in

more calls to the NRC asking why the

form was not enclosed with the invoice.

Response. NRC Form 526 is one sheet,

with the five NRC size standards for

small entities printed on the front, and

the instructions for completing the form

printed on the back. Both sides of the

form state, in capital letters and in large

print, that the form should not be

completed if the licensee does not

qualify under one of the size standards

shown. In addition, the Certification

block, which is to be signed by the

owner of the small entity or an official

empowered to act on behalf of that

entity, states ‘‘I certify that the above

named NRC licensee qualifies as a small

entity under the size standards

established by the NRC for its licensees

in 10 CFR 2.810 (60 FR 18344). The

licensee qualifies as a small entity under

the specific size standard indicated

above.’’ Thus, the NRC believes the form

and the accompanying instructions are

clear that the form should be completed

only by those licensees that qualify as

a small entity under NRC’s size

standards.

However, as indicated in the

proposed rule, the NRC continues to

receive forms completed by licensees

who do not qualify as a small entity.

When contacted about improperly filed

forms, many of these licensees indicate

they thought they had to complete the

form because it was enclosed with the

annual fee invoice. It is for this reason

that the NRC proposed to discontinue

including NRC Form 526 with each

annual fee invoice.

Licensees who file an improperly

completed NRC Form 526 do so under

penalty of perjury, and could become

the subject of an NRC investigation.

This could lead to fines, imprisonment,

or both, and the revocation or

suspension of the license. The NRC

believes that there is merit to trying to

minimize the number of improperly

filed forms, the resulting risk to the

licensees, and the associated drain on

NRC resources.

The NRC is adopting the proposed

change. However, in order to minimize

the impact on NRC licensees and NRC

staff resources, implementation of the

revised policy of not mailing NRC Form

526 with each annual fee invoice will be

phased in. The NRC is evaluating

various options to determine the most

cost effective means of segregating in

the annual fee billing system those

licensees who are identified in the

accounting system as qualifying small

entities for the previous fiscal year.

Once this process is in place, the NRC

will send NRC Form 526 only with

those annual fee invoices issued to

licensees who qualified as a small entity

for the prior year. When this process is

implemented, the NRC will send a

notice with the annual fee invoices

issued to those licensees who did not

qualify as a small entity the previous

year to advise them of the change and

to provide information on how they can

obtain the form if they qualify as a small

entity in the current year. Until the

revised process is in place, the NRC will

continue to mail NRC Form 526 with

each annual fee invoice issued to

materials licensees.

Licensees who have questions about

their status as a small entity or about the

process for filing the NRC Form 526

should contact the NRC’s license fee

staff at 301–415–7554, or e-mail the fee

staff at fees@nrc.gov.

3. Annual Fees for Uranium Recovery

Licensees

Comment. The NRC received 5

comments concerning the annual fees

charged to NRC’s uranium recovery

class of licensees. While most of the

commenters acknowledged the

reduction in annual fees for the uranium

recovery class compared to FY 2000,

many stated that the reduction does not

make up for an increase in total charges

over the last two years and does not go

far enough. Some commenters are

concerned with what they believe is a

lack of a reasonable relationship

between the cost to uranium recovery

licensees of NRC’s regulatory oversight

program, and the benefit derived from

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32457

that program. Several commenters

indicate that sites that are on standby or

awaiting approval of reclamation plans

should not be subject to annual fees

because they require minimal NRC

oversight. Some commenters stated that

the decision to cease operations, go into

standby, or begin decommissioning is

rarely at the licensee’s discretion, but

rather is based on the realities of the

uranium market. Several commenters

stated that the NRC must find an

equitable way of dealing with the

decreasing number of licensees in the

uranium recovery area, which could

result in the remaining few paying for

the entire program.

Some commenters referred to the

April 10, 2001, Commissioners’ Briefing

provided by the National Mining

Association, where the status of the

uranium recovery industry, the impacts

of NRC’s fees on the industry, and the

potential for seeking fee relief were

discussed. Several commenters

supported an industry-wide effort to

seek relief from NRC’s fees through a

petition for rulemaking or by pursuing

legislative relief. Commenters claim that

the fees NRC charges uranium recovery

licensees threaten the viability of the

industry, which is vital to the nation’s

long-term energy security.

Response. The NRC has responded to

similar comments concerning the

impact of its fees on the uranium

recovery industry in several prior fee

rulemakings. Most recently, the NRC

responded to these concerns in the FY

2000 final rule (65 FR 36950, 36951;

June 12, 2000). As explained there, the

NRC recognizes that fees may result in

a substantial financial hardship for the

uranium recovery industry, particularly

in light of the industry’s economic

status and the potential for a decreasing

number of uranium recovery licensees.

However, consistent with the OBRA–90

requirement that the annual fees must,

to the maximum extent practicable,

have a reasonable relationship to the

cost of providing regulatory services, the

NRC’s annual fees for the uranium

recovery class of licensees reflect the

NRC’s cost of its regulatory services to

the class. The NRC determined the costs

to be allocated to each class through an

extensive review of each planned

accomplishment in the major program

areas.

As the NRC has stated since FY 1991

when the 100 percent fee recovery

requirement was first implemented, the

agency recognizes that assessing fees to

recover these costs as required by

OBRA–90 may result in adverse

economic impacts on some licensees.

However, a reduction in the fees

assessed to one class of licensees would

require a corresponding increase in the

fees assessed to other classes. It is

largely for this reason that the NRC has

heretofore not based the annual fees on

licensees’ economic status, market

conditions, or the inability of licensees

to pass through the costs to its

customers. Instead, the NRC has only

considered the impacts it is required by

law to consider.

The NRC provides reduced annual

fees for licensees who qualify as small

entities under NRC’s size standards,

based on a determination under the

provisions of the Regulatory Flexibility

Act that annual fees have a significant

economic impact on a substantial

number of small entities. The reduction

in annual fees for qualifying small entity

uranium recovery licensees is

significant. For example, for FY 2000,

an in-situ mill licensee paid a reduced

annual fee of $400 based on their small

entity status, a reduction of $26,850.

Because OBRA–90 requires that the

NRC recover most of its budget through

fees, costs not recovered from licensees

based on their small entity status, or for

any other reason, are allocated to other

licensees. The subsidy for small entities

is recovered through the surcharge, with

reactor licensees paying about 80

percent of the total surcharge costs.

A decrease in the number of licensees

does not necessarily reduce the need for

NRC’s generic efforts and other

activities recovered through part 171

annual fees. For example, the number of

licensees does not affect the NRC’s costs

to establish a risk-informed,

performance-based regulatory

framework or to maintain the

Emergency Response Center. However,

the NRC budget process provides an ongoing mechanism for assuring that its

programs are carried out in the most

efficient and effective manner. In FY

1999, budgeted costs of $5.8 million

were allocated to the uranium recovery

class, including $0.7 million in

surcharge costs. In FY 2001, $4.3

million has been allocated to the

uranium recovery class, including $0.4

million in surcharge costs. Thus, the

budgeted costs for this class, including

the allocated surcharge costs, have been

reduced by 25 percent since the last

rebaselining in FY 1999. After

subtracting the estimated part 170

collections and other adjustments, the

costs remaining to be recovered through

annual fees assessed to the class for FY

2001 is $1.5 million, compared to $2.1

million for FY 1999, a reduction of

approximately 29 percent as reflected in

the reduced annual fees to be assessed

uranium recovery licensees for FY 2001.

The NRC has no choice but to assess

annual fees to NRC licensees to recover

the budgeted costs not recovered

through part 170 fees and other receipts.

However, as stated in the proposed rule,

to address fairness and equity concerns

raised by the NRC related to assessing

fees to NRC licensees to recover costs

for activities that do not directly benefit

them, the FY 2001 Energy and Water

Development Appropriations Act

amended OBRA–90 to reduce the NRC’s

fee recovery requirement by 2 percent

per year beginning in FY 2001, until the

fee recovery amount is 90 percent by FY

2005. This results in a reduction of $9.3

million in the total fees to be assessed

to NRC licensees in FY 2001, a

reduction which is shared by all

licensees, including uranium recovery

licensees.

The NRC has previously considered

whether licensees in a standby status or

awaiting approval of their reclamation

plans should be granted a full or partial

exemption from annual fees based on

their non-operating status. For example,

the NRC addressed this issue in

response to comments on the FY 1991

rule (56 FR 31461; July 10, 1991), and

further elaborated on it in 1995 in

response to a petition for rulemaking

from the American Mining Congress

(now the National Mining Association)

(60 FR 20918; April 28, 1995). The

Commission currently believes that the

existing policy of assessing annual fees

based on whether a licensee holds a

valid NRC license that authorizes

possession and use, whether or not the

facility is actively operating or in a

standby status, represents the fairest

option available under current

legislation. This policy is based on the

basic premise that the benefit the NRC

provides a licensee is the authority to

use licensed material. Whether or not to

exercise that authority is a business

decision of the licensee.

Based on the fee recovery

requirements of OBRA–90, reducing the

number of licensees paying annual fees

by granting relief for licensees in a

standby status would increase the

annual fees assessed to the remaining

licensees. Providing such fee relief

would add to the effects of decreasing

numbers of licensees on annual fees,

which continues to be of concern to

commenters. Licensees in a standby

status continue to benefit from NRC’s

generic guidance and rules applicable to

the uranium recovery class of licensees

and therefore should continue to pay

annual fees.

Although the comments indicate that

annual fees are assessed to certain

licensees because of a failure on NRC’s

part to approve their reclamation plans,

this is not the case. The NRC waives the

annual fee for those licensees who have

32458 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

relinquished their authority to operate

and have permanently ceased

operations, as long as the notifications

of such actions are filed by the dates

provided in the fee regulations. The

reclamation plans do not have to be

approved by the NRC for the fee waiver

to apply.

4. Quarterly Billing Schedule For Class

I And Class II Licenses

Comment. Two commenters

supported the NRC’s proposal to

establish a quarterly annual fee billing

schedule for Class I and Class II

uranium recovery licensees, regardless

of the annual fee amounts.

Response. The NRC is modifying

§ 171.19 in this final rule to establish a

quarterly annual fee billing schedule for

uranium mill licensees (Class I) and

solution mining licensees (Class II).

Because the annual fees for these

licensees have been close to the

$100,000 threshold for quarterly billing,

slight changes in the annual fees have

resulted in frequent changes in their

billing schedules. This change will

provide these licensees with a

consistent, predictable schedule for

paying their annual fees.

5. Annual Fees for Power Reactors in

Decommissioning

Comment. The NRC received one

comment concerning the spent fuel

storage/reactor decommissioning annual

fee. The commenter stated that the

proposed 32 percent annual fee increase

for this class of licensees is not

equitable and places an undue burden

on the licensees in the class. Comparing

the proposed increased annual fee for

the spent fuel storage/reactor

decommissioning class to the proposed

decreased annual fee for operating

reactors, the commenter contends that

the increase is an undue burden because

the decommissioning plants do not

generate revenue through the sale of

electricity and have no guarantee of

recovering additional costs by

petitioning local public utility

commissions.

The commenter said that the

additional costs would have to be

assumed by existing plant

decommissioning funds, which could

affect the resources available for

performing plant decommissioning in a

timely manner. The commenter believes

that at a minimum the fees should be

only incrementally increased by

approximately six percent per year,

corresponding with the NRC phased

budget reductions. The commenter

believes that this suggested approach

would be consistent with the intent of

OBRA–90, as amended.

Response. The rebaselined annual

fees for FY 2001 reflect the budgeted

costs for each class of licensees.

Although NRC recognizes that there

may be adverse economic impacts on

those classes of licensees with annual

fee increases, the NRC cannot mitigate

the adverse economic impacts by

eliminating or reducing the fee increases

for one class without increasing the fees

elsewhere, and thereby creating adverse

economic impacts for another class of

licensees.

The increase in annual fees for the

spent fuel storage/reactor

decommissioning class of licensees

reflects an increase in budgeted costs

allocated to this class since the last

annual fee rebaselining in FY 1999. For

example, compared to FY 1999, there

were increases in budgeted costs

allocated to the spent fuel storage/

reactor decommissioning class for waste

safety research, for spent fuel storage

licensing and inspection activities, and

for rulemaking. Recovering the costs

associated with spent fuel storage and

reactor decommissioning from operating

power reactors, reactors in

decommissioning if they have fuel on

site, and those Part 72 spent fuel storage

licensees who do not hold a part 50

license is consistent with the intent of

OBRA–90 that NRC’s resources be

allocated among licensees or classes of

licensees, so that the licensees who

require the greatest expenditure of the

NRC’s resources will pay the greatest

annual fee.

Because these costs are budgeted for

activities related to the spent fuel

storage/reactor decommissioning class,

there is no basis to limit the fee

increases that are necessary to recover

the budgeted costs from the class.

However, based on revised part 170

estimated collections for FY 2001, the

annual fee in this final rule for each

licensee in the spent fuel storage/reactor

decommissioning class is $266,000,

which is $9,000 less than the proposed

annual fee of $275,000.

In addition to reactor licensees in

decommissioning, operating reactors

and part 72 licensees that do not hold

a part 50 license will also be assessed

the increased FY 2001 spent fuel

storage/reactor decommissioning annual

fee. The decrease in total FY 2001

annual fees for operating power reactors

is due to reduced budgeted costs for the

operating power reactor class compared

to FY 1999.

6. Annual Fees for Fuel Facilities

Comment. One fuel facility licensee

commented that the proposed fee

increase for fuel facilities would result

in a financial burden that counteracts

the cost control and reduction efforts

that are being implemented by licensees

in the class in order to effectively

compete in world markets. The

commenter also indicated that the

proposed rule did not provide the basis

for the increase in fuel facility budgeted

costs and therefore it was difficult to

determine if they are fair and equitable.

Another fuel facility licensee referenced

its March 13, 2001, request for a

downgrade of its license and a reduction

in the annual fee, and its March 29,

2001, request for a license amendment

to reflect certain discontinued

operations for purposes of downgrading

the license. The commenter stated that

as a result of their request, the fee rule

should reflect the downgrade of the

license from Category 1.A.(1)(b) to

Category 1.A.(2)(a) and the FY 2001

annual fee should be prorated

accordingly.

Response. The rebaselined annual

fees for FY 2001 have been established

based on the budgeted costs allocated to

each class of licensees, less the

estimated Part 170 collections and other

adjustments for each class. The FY 2001

annual fees decreased for many

categories of licensees compared to FY

2000, and increased for others. The NRC

recognizes that the FY 2001 annual fees

may have an adverse impact on those

classes of licensees with annual fee

increases. However, the rebaselined fees

represent a fair and equitable allocation

of NRC’s FY 2001 budgeted costs to the

various classes of licensees. The work

papers supporting the proposed rule

and this final rule show in detail the

allocation of the budgeted costs for each

planned accomplishment within the

NRC’s major programs to the various

classes of licensees, and how the fees

are calculated. As the NRC stated in the

proposed rule (66 FR 16982, March 28,

2001), the work papers for the proposed

rule are available in ADAMS, and

during the 30-day comment period they

were also available in the PDR for

review. As shown in the ADDRESSES

section, the work papers for this final

rule are also available in ADAMS, and

will be available in the PDR for review

for a period of 90 days from the date this

final rule is published in the Federal

Register.

Cost control measures that a class of

licensees might take do not affect the

amount of the budget that the NRC is

required to recover from that class

through annual fees. Similarly, as the

NRC has indicated in several previous

fee rulemakings, the NRC does not set

fees based on factors such as size, ability

to pay, or other economic factors. In

order to meet the requirements of

OBRA–90, the NRC is unable to reduce

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32459

the fees assessed to one class of

licensees without increasing the fees

assessed to other classes. Therefore, as

stated previously, the NRC has only

given consideration to the effects it is

required to consider by law. As reflected

in the Regulatory Flexibility Analysis,

Appendix A to this final rule, the NRC

has determined that a maximum annual

fee for small entities strikes a balance

between the fee recovery requirements

of OBRA–90, as amended, and the

requirement of the Regulatory

Flexibility Act to consider means to

reduce the impact of the fees on small

entities.

In FY 1995, after notice and comment

rulemaking, the NRC established the

current methodology for determining

annual fees for fuel facilities. This

methodology results in the reasonable

grouping of fuel facility licenses into fee

categories according to the licensed

operations and the level, scope, depth of

coverage, and rigor of generic regulatory

programmatic efforts. The programmatic

efforts reflect the safety and safeguards

significance associated with the

authorized nuclear material and use/

activity, and the commensurate generic

regulatory program (i.e., scope, depth

and rigor). A matrix depicts the

categorization of the fuel facility

licenses based on these factors.

The NRC has modified the matrix

based on the notification referenced by

one commenter that, prior to March 31,

2001, it had permanently ceased certain

licensed operations. The revised matrix

reflects the licensee’s cessation of

conversion of uranium hexafluoride

(UF6) to uranium oxide (UO2) and

removal of the remaining UF6 from the

facility prior to March 31, 2001. The

NRC has determined, however, that the

reduced activities do not diminish the

licensee’s total safety and safeguards

effort factors and the commensurate

generic regulatory program to the extent

that it will place the license in the next

lower fee category. The NRC will

respond separately to the specific issues

raised in the commenter’s March 13,

2001, letter requesting that the license

be placed in a lower fee category.

The revised matrix results in a

redistribution of the safety and

safeguards costs among the fuel

fabrication categories. Accordingly, the

annual fees for licensees in the fuel

facility categories in this final rule have

changed from the amounts shown in the

proposed rule. The final annual fees for

the various fuel facility categories also

reflect an increase in estimated Part 170

collections for the fuel facility class for

FY 2001 compared to the proposed rule.

The final annual fees for the various fuel

facility categories are shown in § 171.31.

D. Other Issues

1. NRC’s Budget

Comment. One commenter offered

several suggestions for reducing NRC’s

budget and for more efficient use of

NRC resources. The commenter

indicates that the proposed rule does

not account for a reduced number of

regional initiative inspections. The

commenter suggested that further

improvements in inspection and

assessment efficiency could be realized

by NRC’s participation and oversight of

licensee self-assessments, rather than

NRC conducting independent

inspections. The commenter also

suggested that the NRC review the scope

and content of inspection procedures to

make them further risk-informed, that

the NRC eliminate resources oriented to

minimally safety-significant areas, and

that the NRC consider consolidating the

regional offices in the near-term and

eliminating them in the longer term.

Response. As stated in the response to

the comment concerning information

the NRC provided in support of the

proposed and in response to similar

comments on previous fee rules, the

NRC’s budgets and the manner in which

the NRC carries out its activities are not

within the scope of this rulemaking.

Therefore, this final rule does not

address the commenter’s suggestions

concerning NRC’s budget and the use of

NRC resources. The NRC’s budgets are

submitted to the Office of Management

and Budget and then to Congress for

review and approval. The

Congressionally-approved budget

resulting from this process reflects the

resources necessary for NRC to carry out

its statutory obligations. In compliance

with OBRA–90, the fees are established

to recover the required percentage of the

approved budget.

However, it should be noted that the

NRC’s budget reflects its efforts to be

effective and efficient. Since FY 1993,

the NRC budget has been reduced by

more than $25 million in current year

dollars and by more than $140 million

or 25 percent in constant dollars. Over

this same timeframe the staffing of the

NRC has been reduced by

approximately 600 FTE or 18 percent.

To achieve these reductions, the NRC

has eliminated programs, improved

processes, reduced overhead

requirements, and implemented

efficiencies and cost savings. The

Commission continues to search

vigorously for additional opportunities

to streamline its operations and to

achieve efficiencies.

III. Final Action

The NRC is amending its licensing,

inspection, and annual fees to recover

approximately 98 percent of its FY 2001

budget authority, including the budget

authority for its Office of the Inspector

General, less the appropriations

received from the NWF and the General

Fund. The NRC’s total budget authority

for FY 2001 is $487.3 million, of which

$21.6 million has been appropriated

from the NWF. In addition, $3.2 million

has been appropriated from the General

Fund for activities related to regulatory

reviews and assistance provided to

other Federal agencies and States. In the

proposed rule, the total budget was

shown as $487.4 million. However, a

rescission reduced the total budget

authority by approximately $75.0

thousand. This rescission did not affect

the fee recovery portion of the budget

and, therefore, the fee recovery amounts

have not changed from the proposed

rule. Based on the 98 percent fee

recovery requirement, the NRC must

collect approximately $453.3 million in

FY 2001 through Part 170 licensing and

inspection fees, Part 171 annual fees,

and other offsetting receipts. The total

amount to be recovered through fees

and other offsetting receipts for FY 2001

is $6.3 million more than the amount

estimated for recovery in FY 2000.

However, the FY 2001 fee recovery

amount is further reduced by a $3.1

million carryover from additional

collections in FY 2000 that were

unanticipated at the time the final FY

2000 fee rule was published. This leaves

approximately $450.2 million to be

recovered in FY 2001 through Part 170

licensing and inspection fees, Part 171

annual fees, and other offsetting

receipts.

The NRC estimates that

approximately $118.2 million will be

recovered in FY 2001 from Part 170 fees

and other offsetting receipts. The NRC

also estimates a net adjustment for FY

2001 of approximately $0.4 million for

payments received in FY 2001 for FY

2000 invoices. The remaining $332.0

million is to be recovered through the

part 171 annual fees, compared to

$341.0 million for FY 2000.

Table I summarizes the budget and fee

recovery amounts for FY 2001.

TABLE I.—BUDGET AND FEE

RECOVERY AMOUNTS FOR FY 2001

[Dollars in millions]

Total Budget Authority .................. $487.3

Less NWF .............................. ¥21.6

Less General Fund ................ ¥3.2

Balance .............................. $462.5

32460 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

TABLE I.—BUDGET AND FEE RECOVERY AMOUNTS FOR FY 2001—Continued

[Dollars in millions]

Fee Recovery Rate for FY

2001 ................................... ×98.0%

Total Amount to be Recovered

For FY 2001 .............................. $453.3

Less Carryover from FY 2000 ¥3.1

Amount to be Recovered Through

Fees and Other Receipts .......... $450.2

Less Estimated Part 170

Fees and Other Receipts .. ¥118.2

Part 171 Fee Collections Required ........................................ $332.0

Part 171 Billing Adjustments.

Unpaid FY 2001 Invoices (estimated) .............................. 3.2

Less Payments Received in

FY 2001 for Prior Year Invoices (estimated) .............. ¥3.6

Subtotal .............................. ¥0.4

Adjusted Part 171 Collections

Required .................................... $331.6

The final FY 2001 fee rule is a

‘‘major’’ final action as defined by the

Small Business Regulatory Enforcement

Fairness Act of 1996. Therefore, the

NRC’s fees for FY 2001 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 and

major fuel cycle facilities upon

publication of the FY 2001 final rule.

For these licensees, payment will be due

on the effective date of the FY 2001 rule.

Those materials licensees whose license

anniversary date during FY 2001 falls

before the effective date of the final FY

2001 rule will be billed for the annual

fee during the anniversary month of the

license at the FY 2000 annual fee rate.

Those materials licensees whose license

anniversary date falls on or after the

effective date of the final FY 2001 rule

will be billed for the annual fee at the

FY 2001 annual fee rate during the

anniversary month of the license, and

payment will be due on the date of the

invoice.

In accordance with its FY 1998

announcement, the NRC has

discontinued mailing the final rule to all

licensees as a cost-saving measure.

Accordingly, the NRC does not plan to

routinely mail the FY 2001 final rule or

future final rules to licensees. However,

the NRC will send the final rule to any

licensee or other person upon request.

To request a copy, contact the License

Fee and Accounts Receivable Branch,

Division of Accounting and Finance,

Office of the Chief Financial Officer, at

301–415–7554, or e-mail us at

fees@nrc.gov. In addition to publication

in the Federal Register, the final rule

will be available on the Internet at http:/

/ruleforum.llnl.gov.

The NRC is amending 10 CFR parts

170 and 171 as discussed in Sections A

and B below.

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

The NRC is revising the hourly rates

used to calculate fees and is adjusting

the 10 CFR part 170 fees based on the

revised hourly rates and the results of

the NRC’s biennial review of fees

required by the Chief Financial Officer

(CFO) Act of 1990 (Pub. L. 101–578,

Nov. 15, 1990, 104 Stat. 2838) (CFO

Act). Additionally, the NRC is

eliminating the fees currently assessed

to Agreement State licensees who file

revisions to the information submitted

on their initial filing of NRC Form 241,

‘‘Report of Proposed Activities in NonAgreement States,’’ and including the

costs for these revisions in the

application fees assessed for the initial

Form 241. The NRC is also establishing

an annual registration fee of $450 to be

assessed for part 31 general licensees

required to register certain types of

generally licensed devices. These final

revisions are further discussed below.

The final amendments are as follows:

1. Hourly Rates

The NRC is revising the two

professional hourly rates for NRC staff

time established in § 170.20. These rates

are based on the number of FY 2001

direct program full time equivalents

(FTEs) and the FY 2001 NRC budget,

excluding direct program support costs

and NRC’s appropriations from the

NWF and the General Fund. These rates

are used to determine the Part 170 fees.

The hourly rate for the reactor program

is $150 per hour ($266,997 per direct

FTE). This rate is applicable to all

activities for which fees are assessed

under § 170.21 of the fee regulations.

The hourly rate for the nuclear materials

and nuclear waste program is $144 per

hour ($255,563 per direct FTE). This

rate is applicable to all activities for

which fees are assessed under § 170.31

of the fee regulations. In the FY 2000

final fee rule, the reactor and materials

program rates were $144 and $143,

respectively. The increases are primarily

due to the Government-wide pay

increase in FY 2001.

The method used to determine the

two professional hourly rates is as

follows:

a. Direct program FTE levels are

identified for the reactor program and

the nuclear material and waste program.

b. Direct contract support, which is

the use of contract or other services in

support of the line organization’s direct

program, is excluded from the

calculation of the hourly rates because

the costs for direct contract support are

charged directly through the various

categories of fees.

c. All other program costs (i.e.,

Salaries and Benefits, Travel) represent

‘‘in-house’’ costs and are to be collected

by dividing them uniformly by the total

number of direct FTEs for the program.

In addition, salaries and benefits plus

contracts for non-program direct

management and support, and for the

Office of the Inspector General, are

allocated to each program based on that

program’s direct costs. This method

results in the following costs which are

included in the hourly rates.

TABLE II.—FY 2001 BUDGET AUTHORITY INCLUDED IN HOURLY RATES

Reactor program Materials

program

Direct Program Salaries & Benefits ................................................................................................................. $107.8M $31.3M

Overhead Salaries & Benefits, Program Travel and Other Support ............................................................... 56.1M 15.0M

Allocated Agency Management and Support .................................................................................................. 100.8M 28.5M

Subtotal ................................................................................................................................................. $264.7M $74.8M

Less offsetting receipts .................................................................................................................................... ¥0.1M

Total Budget Included in Hourly Rate .................................................................................................. $264.6M $74.8M

Program Direct FTEs ....................................................................................................................................... 991.0 292.7

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32461

TABLE II.—FY 2001 BUDGET AUTHORITY INCLUDED IN HOURLY RATES—Continued

Reactor program Materials

program

Rate per Direct FTE ........................................................................................................................................ $266,997 $255,563

Professional Hourly Rate (Rate per direct FTE divided by 1,776 hours) ....................................................... $150 $144

As shown in Table II, dividing the

$264.6 million (rounded) budgeted

amount included in the hourly rate for

the reactor program by the reactor

program direct FTEs (991.0) results in a

rate for the reactor program of $266,997

per FTE for FY 2001. The Direct FTE

Hourly Rate for the reactor program is

$150 per hour (rounded to the nearest

whole dollar). This rate is calculated by

dividing the cost per direct FTE

($266,997) by the number of productive

hours in one year (1,776 hours) as set

forth in the revised OMB Circular A–76,

‘‘Performance of Commercial

Activities.’’ Similarly, dividing the

$74.8 million (rounded) budgeted

amount included in the hourly rate for

the nuclear materials and nuclear waste

program by the program direct FTEs

(292.7) results in a rate of $255,563 per

FTE for FY 2001. The Direct FTE Hourly

Rate for the materials program is $144

per hour (rounded to the nearest whole

dollar). This rate is calculated by

dividing the cost per direct FTE

($255,563) by the number of productive

hours in one year (1,776 hours).

2. Fee Adjustments

The NRC is adjusting the current part

170 fees in §§ 170.21 and 170.31 to

reflect both the changes in the revised

hourly rates and the results of the

biennial review of part 170 fees required

by the CFO Act. To comply with the

requirements of the CFO Act, the NRC

has evaluated historical professional

staff hours used to process a new license

application for those materials licensees

whose fees are based on the average cost

method, or ‘‘flat’’ fees. This review also

included new license and amendment

applications for import and export

licenses.

Evaluation of the historical data

shows that fees based on the average

number of professional staff hours

required to complete materials licensing

actions should be increased in some

categories and decreased in others, as

described below, to more accurately

reflect current costs incurred in

completing these licensing actions. The

data for the average number of

professional staff hours needed to

complete new licensing actions was last

updated in FY 1999 (64 FR 31448; June

10, 1999). Thus, the revised average

professional staff hours reflect the

changes in the NRC licensing review

program that have occurred since FY

1999.

In summary, the final licensing fees

reflect an increase in average time for

new license applications for seven of 33

materials fee categories included in the

biennial review, a decrease in average

time for five fee categories, and the same

average time for the remaining 21 fee

categories. Similarly, the average time

for applications for new export and

import licenses and for amendments to

export and import licenses remained the

same for eight fee categories in

§§ 170.21 and 170.31, and decreased for

two other fee categories.

The revised licensing fees are based

on the new average professional staff

hours needed to process the licensing

actions multiplied by the proposed

professional hourly rate for FY 2001.

The amounts of the materials licensing

‘‘flat’’ fees are rounded as follows: 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 licensing ‘‘flat’’ fees are

applicable to fee categories K.1 through

K.5 of § 170.21, and fee categories 1C,

1D, 2B, 2C, 3A through 3P, 4B through

9D, 10B, 15A through 15E, and 16 of

§ 170.31. An additional change to

Category 16 is discussed in item 3.

below. Applications filed on or after the

effective date of the final rule will be

subject to the revised fees in this final

rule.

3. Fees for Revisions to Initial

Reciprocity Applications

The NRC has taken several actions in

the past few years to streamline and

stabilize fees assessed to materials user

licensees subject to ‘‘flat’’ fees. These

actions included elimination of the

inspection, renewal, and amendment

fees from part 170, and inclusion of the

costs for these activities in the part 171

annual fees. Materials user licensees

affected by these changes have

responded favorably to the elimination

of multiple types of individual fees.

The NRC is taking a similar

streamlining action for certain

submittals from Agreement State

licensees operating in areas under NRC

jurisdiction under the part 150

reciprocity provisions. Currently, a part

170 fee of $1,200 is charged for each

initial filing of NRC Form 241, ‘‘Report

of Proposed Activities in NonAgreement States,’’ and an additional

fee of $200 is charged for each revision

to the information submitted on the

initial NRC Form 241. Revisions are

filed to request approval for work

locations, radioactive materials, or work

activities different from those submitted

on the initial NRC Form 241. In FY

2000, only $23,000 was collected for

115 revisions.

The NRC has eliminated the revision

fees and included the costs for

processing them in the fee assessed for

each initial reciprocity application. For

those revisions filed on or after the

effective date of this final rule, the

reciprocity applicants will no longer be

required to submit payments with their

revision requests. In addition to the

convenience for the reciprocity

applicants, this will also eliminate the

NRC’s administrative burden of

processing the revisions for fee

collection purposes. This change plus

the increase in the hourly rate results in

an increase in the application fee, from

$1,200 to $1,400. The costs of the

reciprocity program will still be

recovered from those receiving the

benefit of the NRC’s reciprocity

activities. It is the NRC’s belief that the

nominal increase to the application fee

and any potential inequities that might

result because not all reciprocity

licensees file revisions during the year

are outweighed by the efficiencies to be

gained by both the reciprocity

applicants and the NRC in streamlining

the process.

A conforming revision to 10 CFR

150.20(b)(2) has also been made to

reflect this change.

4. Fees for General License Registrations

The NRC has established an

application fee of $450 for registrations

filed in accordance with 10 CFR 31.5 for

certain generally licensed devices. The

NRC published a proposed rule in the

Federal Register on July 26, 1999 (64 FR

40295), stating its intent to amend

current regulations governing the use of

byproduct material in certain

measuring, gauging, or controlling

devices. The proposed amendments

32462 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

included adding explicit requirements

for a registration process under 10 CFR

31.5 for certain generally licensed

devices; establishing a registration fee;

modifying reporting, record-keeping,

and labeling requirements; and

clarifying which provisions of the

regulations apply to all general licenses

for byproduct material. The NRC stated

in the proposed rule that the registration

fee would recover the costs for obtaining

and maintaining information associated

with the devices subject to the

registration requirement, processing and

reviewing the registrations, and for

inspections and follow-up efforts

expected to be made as a result of the

registration process identifying

noncompliance with existing

regulations. The fee would be based on

the average cost of the program for each

of the licensees registering devices.

Some of the general licensees, such as

non-profit educational institutions,

would be exempt from the fee under

§ 170.11. Costs not recovered from this

small segment of the general licensees

registering devices would continue to be

recovered from annual fees paid by

current holders of specific licenses. The

NRC also stated in the proposed rule

that the requirement for the registration

fee would be effective after the initial

registration requests are sent for

response under § 31.5(c). In this

manner, the first round of registrations

will be complete before the requirement

for the registration fee goes into effect.

The NRC published a final rule on

December 18, 2000 (65 FR 79162),

amending 10 CFR Parts 30, 31, and 32

to explicitly require that certain general

licensees register their generally

licensed devices with the NRC each year

and pay the appropriate registration fee.

Therein the NRC stated that the final

fee, estimated at approximately $440 to

$450, would be established in the FY

2001 fee rulemaking based on that year’s

budgeted costs for the program, the new

FTE rate, and the estimated number of

general licensees required to register.

The NRC currently estimates that

approximately 4300 general licensees

will be required to register their

generally licensed devices. The $450

registration fee is based on the estimated

number of registrants, current resource

estimates, and the FY 2001 FTE rate.

The registration fee will be imposed

beginning with the first re-registration of

devices currently in use. The

registration fee will be required for each

annual re-registration of the devices and

for all new registrations of devices

acquired after the registration program

is fully implemented.

Because this is a ‘‘flat’’ fee based on

average cost, it will be reviewed

biennially as required by the CFO Act.

The registration fee established in this

FY 2001 final fee rule will not change

until the next biennial review of fees in

FY 2003.

5. Fee Waivers

To clarify the intent of the fee waiver

provision for certain reports filed with

the NRC for review and approval, the

NRC is modifying the current criterion

3. of Footnote 4 to § 170.21 and criterion

(c) of Footnote 5 to § 170.31 to

specifically state that the review and

approval of the reports must support

NRC’s generic regulatory improvements

or efforts. In addition, criteria 1., 2., and

3. of Footnote 4 to § 170.21 have been

redesignated as criteria (a), (b), and (c).

In the recent past, several requests for

part 170 fee exemptions have been filed

by licensees and various organizations

who submit topical reports or other

documents to the NRC for review. Part

170 currently provides that fees will not

be assessed for requests or reports

submitted to the NRC in response to an

NRC inquiry to resolve an identified

safety, safeguards, or environmental

issue; or to assist the NRC in developing

a rule, regulatory guide, policy

statement, generic letter or bulletin; or

as a means of exchanging information

between industry organizations and the

NRC for the purpose of supporting

generic regulatory improvements or

efforts. Many of the fee exemption

requests have been denied because the

submittals have not met the intent of the

waiver provision. For example, several

fee waiver requests were based on the

industry’s future use of the reports,

rather than these reports being

submitted, reviewed, and approved for

the purpose of NRC’s generic regulatory

improvements.

In the statement of considerations for

the FY 1994 fee rule (59 FR 36895; July

20, 1994), which incorporated this fee

waiver provision, the NRC stated that it

believed the costs for some requests or

reports filed with the NRC are more

appropriately captured in the part 171

annual fees rather than assessing

specific fees under part 170. The

statement of considerations continued

to state that these reports, although

submitted by a specific organization,

support NRC’s development of generic

guidance and regulations and resolution

of safety issues applicable to a class of

licensee.

In summary, the NRC is amending 10

CFR part 170 to—

1. Revise the material and reactor

program FTE hourly rates;

2. Revise the licensing fees to be

assessed to reflect the revised hourly

rates and to comply with the CFO Act

requirement that fees be reviewed

biennially and revised as necessary to

reflect the cost to the agency;

3. Eliminate fees for Agreement State

licensees who submit revisions to their

initial requests for reciprocity in States

under NRC jurisdiction, and incorporate

these costs into the initial reciprocity

application fee;

4. Establish registration fees to be

assessed for each registration or reregistration of generally licensed

devices under 10 CFR 31.5, beginning

with the first re-registration of those

generally licensed devices currently in

use; and

5. Clarify that the fee waiver

provisions of the current criterion 3. of

Footnote 4 to § 170.21 and criterion (c)

of Footnote 5 to § 170.31 apply only to

requests/reports submitted to the NRC

for the purpose of supporting NRC’s

generic regulatory improvements or

efforts, and redesignate criteria 1., 2.,

and 3., of Footnote 4 to § 170.21 as

criteria (a), (b), and (c).

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 NRC is revising the annual fees

for FY 2001. The NRC is also adopting

its proposal to discontinue mailing NRC

Form 526, ‘‘Certification of Small Entity

Status for the Purposes of Annual Fees

Imposed under 10 CFR part 171’’ with

each materials license annual fee

invoice. The amendments are as

follows.

1. Annual Fees

The NRC is amending §§ 171.15 and

171.16 to establish rebaselined annual

fees for FY 2001. The Commission’s

policy commitment, made in the

statement of considerations

accompanying the FY 1995 fee rule (60

FR 32225; June 20, 1995) and further

explained in the statement of

considerations accompanying the FY

1999 fee rule (64 FR 31448; June 10,

1999), establishes that base annual fees

will be re-established (rebaselined) at

least every third year, and more

frequently if there is a substantial

change in the total NRC budget or in the

magnitude of the budget allocated to a

specific class of licensees. The fees were

last rebaselined in FY 1999. After

carefully considering all factors,

including the changes to the amount of

the budget allocated to classes of

licensees, and weighing the complex

issues related to both fairness and

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32463

stability of fees, the Commission has

determined that it is appropriate to

rebaseline the annual fees this year.

Rebaselining fees results in reduced

annual fees for a majority of the

categories of licenses and increased

annual fees for other categories.

Although the NRC is sensitive to the

effects the rebaselined fees will have on

those licensees with fee increases,

establishing new baseline annual fees

this year results in a more precise

relationship between annual fees and

NRC costs of providing services. It thus

constitutes one means to fairly and

equitably allocate costs among the

NRC’s licensees.

The annual fees in §§ 171.15 and

171.16 are revised to recover

approximately 98 percent of the NRC’s

FY 2001 budget authority, less fees

collected under 10 CFR part 170 and

funds appropriated from the NWF and

the General Fund. The total amount to

be recovered through annual fees for FY

2001 is $331.6 million, compared to

$341.0 million for FY 2000.

The FY 2001 annual fees reflect an

increase for some categories of licensees

and a decrease for others from the

previous year. The decreases in annual

fees range from approximately 2.2

percent for operating power reactor

licensees (including the spent fuel

storage/reactor decommissioning annual

fee), to approximately 29.0 percent for

uranium recovery licensees. The

increases in annual fees range from

approximately 2.6 percent for materials

licenses authorizing distribution of

radiopharmaceuticals, to approximately

165.2 percent for transportation quality

assurance program approvals

authorizing use only.

The annual fees in this final rule for

operating power reactors, spent fuel

storage/reactor decommissioning, and

fuel facilities are less than the proposed

annual fees based on the final estimated

part 170 collections for FY 2001. In

addition, the final annual fees for fuel

facilities reflect a redistribution of

budgeted costs among the fuel facility

categories. This redistribution is

explained in detail in Section III., Final

Action.

Factors affecting the changes to the

annual fee amounts include changes in

budgeted costs affecting the classes of

licensees, the reduction in the fee

recovery rate from 100 percent for FY

2000 to 98 percent for FY 2001, the

estimated part 170 collections for the

various classes of licensees, a $3.1

million carryover from additional

collections in FY 2000 that were

unanticipated at the time the final FY

2000 fee rule was published, the

increased hourly rates, decreases in the

numbers of licensees for certain

categories of licenses, and, for the

materials user class, the results of the

biennial review of Part 170 fees required

by the CFO Act. The biennial review

shows that the average number of

professional hours to conduct

inspections and to review new license

applications for materials licenses

increased for some fee categories,

decreased for others, or remained the

same. The average time to conduct

inspections and to review new license

applications for the materials user

license fee categories serve as accurate

measures of the complexity of the

licenses and, therefore, are used to

allocate the materials budget for

rebaselining the annual fees. Increases

in the average professional time for

inspections and reviews of new license

applications result in higher annual fees

for the affected fee categories, assuming

all else remains the same (e.g., no loss

of licensees).

The increase in annual fees (from

$2,300 to $6,100) for transportation

quality assurance approvals authorizing

use only, which have the largest

percentage increase, is due in part to the

allocation of budgeted costs for the

enhanced participatory part 71

rulemaking, headquarters and regional

allegation and enforcement follow-up

activities, and the Office of Nuclear

Material Safety and Safeguards’ risk

study activities. In addition, there has

been a decrease in the amount of

budgeted costs allocated for part 71

vendor inspections while the allocation

of budgeted costs for quality assurance

reviews remained about the same. The

ratio of the budgeted costs for these

activities is currently used to allocate

the total annual fee amount for the

transportation class, less the amount

allocated to DOE for its certificates of

compliance, between the quality

assurance approvals authorizing use

only and those that authorize use and

fabrication/design. As a result of the

decrease in budgeted costs for part 71

vendor inspections, a larger percentage

of the total annual fee amount for the

transportation class has been allocated

to quality assurance approvals

authorizing use only than in the past.

Table III below shows the rebaselined

annual fees for FY 2001 for

representative categories of licensees.

TABLE III.—REBASELINED ANNUAL

FEES FOR FY 2001

Class of licensees FY 2001

annual fee

Power Reactors (including

Spent Fuel Storage/Reactor

Decommissioning annual fee) $2,753,000.

Spent Fuel Storage/Reactor

Decommissioning .................. 266,000

Nonpower Reactors .................. 74,000

High Enriched Uranium Fuel

Facility ................................... 3,545,000

Low Enriched Uranium Fuel

Facility ................................... 1,146,000

UF6 Conversion Facility ............ 509,000

Uranium Mills ............................ 94,300

Transportation:

Users/Fabricators .................. 62,500

Users Only ............................ 6,100

Typical Materials Users:

Radiographers ....................... 12,500

Well Loggers ......................... 8,800

Gauge Users ......................... 2,400

Broad Scope Medical ............ 24,200

The annual fees assessed to each class

of licensees include a surcharge to

recover those NRC budgeted costs that

are not directly or solely attributable to

the classes of licensees, but must be

recovered from licensees to comply with

the requirements of OBRA–90, as

amended. Based on the amendment to

OBRA–90 that reduced the NRC’s fee

recovery requirement by 2 percent for

FY 2001, from 100 percent to 98 percent

of the NRC’s budget authority, the total

surcharge costs to be recovered through

annual fees has been reduced by about

$9.3 million. The total FY 2001

budgeted costs for these activities and

the reduction to these amounts for fee

recovery purposes are shown in Table

IV. All dollar amounts in the Table are

rounded.

TABLE IV.—SURCHARGE COSTS

[Dollars in Millions]

Category of costs FY 2001

Budgeted costs

1. Activities not attributable to an existing NRC licensee or class of licensee:

a. International activities ......................................................................................................................................................... $6.0

b. Agreement State oversight ................................................................................................................................................. 7.1

c. Low-level waste disposal generic activities ........................................................................................................................ 1.7

32464 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

TABLE IV.—SURCHARGE COSTS—Continued

[Dollars in Millions]

Category of costs FY 2001

Budgeted costs

d. Site decommissioning management plan activities not recovered under Part 170 .......................................................... 7.3

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 institutions ......................................................................................................... 8.1

b. Licensing and inspection activities associated with other Federal Agencies .................................................................... 3.9

c. Costs not recovered from small entities under 10 CFR 171.16(c) .................................................................................... 5.6

3. Activities supporting NRC operating licensees and others:

a. Regulatory support to Agreement States ........................................................................................................................... 14.4

b. Generic decommissioning/reclamation (except those related to power reactors) ............................................................. 3.4

Total surcharge costs ......................................................................................................................................................... 57.6

Less 2 percent of NRC’s FY 2001 total budget (minus NWF and General Fund amounts) ........................................................ ¥9.3

Total Surcharge Costs to be Recovered ............................................................................................................................ $48.3

As shown in Table IV, the total

surcharge cost allocated to the various

classes of licensees for FY 2001 is $48.3

million. The NRC has continued to

allocate the surcharge costs, except

Low-Level Waste (LLW) surcharge costs,

to each class of licensees based on the

percent of budget for that class. The

NRC has continued to allocate the LLW

surcharge costs based on the volume of

LLW disposed of by certain classes of

licensees. The surcharge costs allocated

to each class are included in the annual

fee assessed to each licensee. The FY

2001 surcharge costs allocated to each

class of licensees are shown in Table V.

TABLE V—ALLOCATION OF SURCHARGE

[All dollar amounts are in millions and are rounded]

LLW surcharge Non-LLW surcharge Total surcharge

Percent Amount Percent Amount amount

Operating Power Reactors ...................................................................... 74 $1.3 79.1 $36.9 $38.2

Spent Fuel Storage/Reactor Decomm ..................................................... .................... .................... 9.2 4.3 4.3

Nonpower Reactors ................................................................................. .................... .................... 0.1 0.0 0.0

Fuel Facilities ........................................................................................... 8 0.1 5.3 2.5 2.6

Materials Users ........................................................................................ 18 0.3 3.9 1.8 2.1

Transportation .......................................................................................... .................... .................... 1.2 0.5 0.5

Rare Earth Facilities ................................................................................ .................... .................... 0.2 0.1 0.1

Uranium Recovery ................................................................................... .................... .................... 1.0 0.4 0.4

Total Surcharge ............................................................................. .................... 1.7 .................... 46.6 48.3

The budgeted costs allocated to each

class of licensees and the calculations of

the rebaselined fees are described in A

through H below. The work papers

which support this final rule show in

detail the allocation of NRC’s budgeted

resources for each class of licensee and

how the fees are calculated. The work

papers are available electronically at the

NRC’s Public Electronic Reading Room

on the Internet at Website address http:/

/www.gov/NRC/ADAMS/index.html. For

a period of 90 days after the effective

date of this final rule, the work papers

may also be examined at the NRC Public

Document Room located at One White

Flint North, Room O–1F22, 11555

Rockville Pike, Rockville, MD 20852–

2738.

Because the FY 2001 fee rule is a

‘‘major’’ final action as defined by the

Small Business Regulatory Enforcement

Fairness Act of 1996, the NRC’s fees for

FY 2001 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

upon publication of the FY 2001 final

rule to reactors and major fuel cycle

facilities. For these licensees, payment

will be due on the effective date of the

FY 2001 rule. Those materials licensees

whose license anniversary date during

FY 2001 falls before the effective date of

the FY 2001 final rule will be billed for

the annual fee during the anniversary

month of the license, and continue to

pay annual fees at the FY 2000 rate in

FY 2001. However, those materials

licensees whose license anniversary

date falls on or after the effective date

of the FY 2001 final rule will be billed

for the annual fee at the FY 2001 rate

during the anniversary month of the

license, and payment will be due on the

date of the invoice.

a. Fuel Facilities. The FY 2001

budgeted costs to be recovered in

annual fees assessed to the fuel facility

class of licensees is approximately $17.4

million. This amount includes the LLW

and other surcharges allocated to the

fuel facility class. The costs are

allocated to the individual fuel facility

licensees based on the fuel facility

matrix established in the FY 1999 final

fee rule (64 FR 31448; June 10, 1999),

as modified for FY 2001 to reflect a

change in programmatic efforts related

to the low enriched uranium fuel

facility category. In this matrix,

licensees are grouped into five

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

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32465

a safety and safeguards perspective.

This methodology can be applied to

determine fees for new and current

licensees, licensees in unique license

situations, and certificate holders.

The methodology allows for changes

in the number of licensees or certificate

holders, licensed-certified material/

activities, and total programmatic

resources to be recovered through

annual fees. When a license or

certificate is modified, this fuel facility

fee methodology may result in a change

in fee category and may have an effect

on the fees assessed to other licensees

and certificate holders. For example, if

a fuel facility licensee amended its

license/certificate in such a way that it

resulted in the licensee not being

subject to Part 171 fees applicable to

fuel facilities, the budget for the safety

and/or safeguards component would be

spread among the remaining licensees/

certificate holders, and result in a higher

fee for those remaining in that fee

category.

The matrix has been revised for this

final rule based on a notification

received in March 2001 from

Westinghouse Electric Company, LLC

(formerly CE Nuclear Power LLC),

holder of License SNM–33, that it had

permanently ceased certain licensed

activities prior to March 31, 2001. The

revised matrix reflects the licensee’s

cessation of conversion of uranium

hexafluoride (UF6 ) to uranium oxide

(UO2 ) and removal of the remaining

UF6 from the facility prior to March 31,

2001. Although the reduced activities

do not diminish the licensee’s total

safety and safeguards effort factors and

the commensurate generic regulatory

program to the extent that it will place

the license in the next lower fee

category, it does result in a

redistribution of the safety and

safeguards costs among the fuel facility

categories.

The methodology is applied as

follows. First, a fee category is assigned

based on the nuclear material and

activity authorized by the license or

certificate. Although a licensee/

certificate holder may elect not to fully

utilize a license/certificate, it is still

used as the source for determining

authorized nuclear material possession

and use/activity. Next, 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

licensee/certificate holders by

authorized material types and use/

activities and the relative programmatic

effort associated with each category. The

programmatic effort (expressed as a

value in the matrix) reflects the safety

and safeguards risk significance

associated with the nuclear material and

use/activity and the commensurate

generic regulatory program (i.e., scope,

depth, and rigor).

The effort factors for the various

subclasses of fuel facility licensees are

summarized in the table below.

TABLE VI.—EFFORT FACTORS FOR FUEL FACILITIES

Facility type Number of

facilities

Effort factors

Safety Safeguards

High Enriched Uranium Fuel .............................................................................................................. 2 91 (33.5%) 76 (55.1%)

Enrichment .......................................................................................................................................... 2 70 (25.7%) 34 (24.6%)

Low Enriched Uranium Fuel ............................................................................................................... 4 85 (31.3%) 23 (16.7%)

UF6 Conversion .................................................................................................................................. 1 8 (2.9%) 3 (2.2%)

Limited Operations Facility ................................................................................................................. 1 12 (4.4%) 0 (0%)

Others ................................................................................................................................................. 1 6 (2.2%) 2 (1.4%)

Applying these factors to the safety,

safeguards, and surcharge components

of the $17.4 million total annual fee

amount for the fuel facility class results

in the annual fees for each licensee

within the subcategories of this class

summarized in the table below.

TABLE VII.—ANNUAL FEES FOR FUEL

FACILITIES

Facility type FY 2001 annual fee

High Enriched Uranium Fuel .... $3,545,000

Uranium Enrichment ................. 2,208,000

Low Enriched Uranium ............. 1,146,000

UF6 Conversion ........................ 509,000

Limited Operations Facility ....... 467,000

Others ....................................... 340,000

b. Uranium Recovery Facilities. The

FY 2001 budgeted cost, including

surcharge costs, to be recovered through

annual fees assessed to the uranium

recovery class is approximately $1.5

million. Of this amount, $654,000 will

be assessed to DOE to recover the costs

associated with DOE sites under the

Uranium Mill Tailings Radiation

Control Act of 1978 (UMTRCA). The

remaining $864,000 will be recovered

through annual fees assessed to

conventional mills, solution mining

uranium mills, and mill tailings

disposal facilities. The costs are

allocated to the individual uranium

recovery licensees in these categories

based on the uranium recovery matrix

established in the FY 1999 final fee rule

(64 FR 31448; June 10, 1999).

The methodology for establishing part

171 annual fees for uranium recovery

licensees has not changed and is as

follows:

(1) The methodology identifies three

categories of licensees: conventional

uranium mills (Class I facilities),

solution mining uranium mills (Class II

facilities), and mill tailings disposal

facilities (11e(2) disposal facilities).

Each of these categories benefits from

the generic uranium recovery program

efforts (e.g., rulemakings, staff guidance

documents, etc.);

(2) The matrix relates the category and

the level of benefit by program element

and subelement;

(3) The two major program elements

of the generic uranium recovery

program are activities related to facility

operations and those related to facility

closure;

(4) Each of the major program

elements was further divided into three

subelements;

(5) The three major subelements of

generic activities associated with

uranium facility operations are

regulatory efforts related to the

operation of mills, handling and

disposal of waste, and prevention of

groundwater contamination. The three

major subelements of generic activities

associated with uranium facility closure

are regulatory efforts related to

decommissioning of facilities and land

clean-up, reclamation and closure of

tailings impoundments, and

groundwater clean-up. Weighted values

were assigned to each program element

and subelement considering health and

safety implications and the associated

effort to regulate these activities. The

applicability of the generic program in

each subelement to each uranium

recovery category was qualitatively

32466 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

estimated as either significant, some,

minor, or none.

The relative weighted factors per

facility type for the various subclasses of

uranium recovery licensees are as

follows.

TABLE VIII.—WEIGHTED FACTORS FOR URANIUM RECOVERY LICENSES

Facility type

Level of benefit

Number of

facilities

Category

weight

Total weight

Value Percent

Class I (conventional mills) ............................................................................................ 3 770 2310 33

Class II (in-situ mills) ..................................................................................................... 1 6.5 645 4193 59

11e(2) disposal .............................................................................................................. 1 475 475 7

11e(2) disposal incident to existing tailings sites .......................................................... 1 75 75 1

1The FY 2001 annual fee will be prorated 50 percent for Cogema Mining’s License SUA–1341 based on its November 10, 2000, request that

the license be amended for possession only.

Applying these factors to the $864,000

in budgeted costs to be recovered results

in the following annual fees:

TABLE IX.—ANNUAL FEES FOR

URANIUM RECOVERY LICENSES

Facility type FY 2001 annual fee

Class I (conventional mills) ...... $94,300

Class II (in-situ mills) ................ 79,000

11e(2) disposal ......................... 58,200

11e(2) disposal incidental to

existing tailings sites ............. 9,200

The FY 2001 annual fees for Class I

and Class II facilities (conventional

mills and in-situ mills), are below the

$100,000 threshold currently

established in § 171.19 for quarterly

billing. Therefore, under the current

requirements these licensees would be

subject to annual fee billing based on

the anniversary date of their license for

FY 2001. In FY 1999 the reverse

situation occurred for these licensees;

i.e., in FY 1998 the annual fees were

below the $100,000 quarterly billing

threshold and the licensees were billed

on the license anniversary date, but

beginning in FY 1999 the licensees

became subject to quarterly billing for

the annual fees because the fees were

over the $100,000 threshold. Because

the annual fees for these licensees have

been close to the $100,000 threshold,

small changes to the annual fee amounts

have resulted in frequent changes to

their annual fee billing schedule. To

provide stability in the billing schedule,

the NRC is revising § 171.19 to establish

a quarterly billing schedule for the Class

I and Class II licensees, regardless of the

annual fee amount. This will provide

these licensees with a consistent,

predictable schedule for paying their

annual fees. As provided in § 171.19(b),

if the amounts collected in the first

three quarters of FY 2001 exceed the

amount of the revised annual fee, the

overpayment will be refunded.

c. Power Reactors. The approximately

$258.7 million in budgeted costs to be

recovered through FY 2001 annual fees

assessed to operating power reactors are

allocated uniformly to the 104 operating

power reactors. This results in a FY

2001 annual fee of $2,487,000 per

reactor. Additionally, each operating

reactor will be assessed the spent fuel

storage/reactor decommissioning annual

fee, which for FY 2001 is $266,000. This

results in a total FY 2001 combined

annual fee of $2,753,000 for each

operating power reactor.

d. Spent Fuel Storage/Reactor

Decommissioning. For FY 2001,

budgeted costs of approximately $32.2

million for spent fuel storage/reactor

decommissioning are to be recovered

through annual fees assessed to Part 50

power reactors, except those reactors in

decommissioning which do not have

spent fuel on site, and to part 72

licensees who do not hold a part 50

license. The costs are divided equally

among the 121 licensees, resulting in an

FY 2001 annual fee of $266,000 per

licensee.

e. Non-power Reactors.

Approximately $296,000 in budgeted

costs is to be recovered through annual

fees assessed to the non-power reactor

class of licensees for FY 2001. This

amount is divided equally among the

four non-power reactors subject to

annual fees. This results in an FY 2001

annual fee of $74,000 for each licensee.

f. Rare Earth Facilities. The FY 2001

budgeted costs of approximately

$89,600 for rare earth facilities to be

recovered through annual fees is

divided equally among the three

licensees who have a specific license for

receipt and processing of source

material. The result is an FY 2001

annual fee of $29,900 for each rare earth

facility.

g. Materials Users. To equitably and

fairly allocate the $23.1 million in FY

2001 budgeted costs to be recovered in

annual fees assessed to the

approximately 5000 diverse materials

users and registrants, the NRC has

continued to use the FY 1999

methodology to establish baseline

annual fees for this class. The annual

fees are based on the part 170

application fees and an estimated cost

for inspections. 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 licensees based on how much it costs

the NRC to regulate each category. The

fee calculation also continues to

consider the inspection frequency

(priority), which is indicative of the

safety risk and resulting regulatory costs

associated with the categories of

licensees. The annual fee for these

categories of licensees is developed as

follows.

Annual fee = Constant × [Application

Fee + (Average Inspection Cost

divided by Inspection Priority)] +

Inspection Multiplier × (Average

Inspection Cost divided by Inspection

Priority) + Unique Category Costs

The constant is the multiple necessary

to recover approximately $15.1 million

in general costs and is 0.96 for FY 2001.

The inspection multiplier is the

multiple necessary to recover

approximately $5.7 million in

inspection costs for FY 2001, and is 1.2

for FY 2001. The unique category costs

are any special costs that the NRC has

budgeted for a specific category of

licensees. For FY 2001, unique costs of

approximately $143,000 were identified

for the medical development program,

an amount attributable to medical

licensees.

The annual fee assessed to each

licensee also includes a share of the $1.8

million in surcharge costs allocated to

the materials user class of licensees and,

for certain categories of these licenses,

a share of the approximately $300,000

in LLW surcharge costs allocated to the

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32467

class. The annual fee for each fee

category is shown in § 171.16(d).

h. Transportation. Of the

approximately $3.9 million in FY 2001

budgeted costs to be recovered through

annual fees assessed to the

transportation class of licensees,

approximately $1.1 million will be

recovered from annual fees assessed to

DOE based on the number of part 71

Certificates of Compliance that it holds.

Of the remaining $2.8 million,

approximately 26 percent is allocated to

the 83 quality assurance plans

authorizing use only and the 36 quality

assurance plans authorizing use and

design/fabrication. The remaining 74

percent is allocated only to the 36

quality assurance plans authorizing use

and design/fabrication. This results in

an FY 2001 annual fee of $6,100 for

each of the holders of quality assurance

plans that authorize use only, and an FY

2001 annual fee of $62,500 for each of

the holders of quality assurance plans

that authorize use and design/

fabrication.

2. Small Entity Annual Fees

In the FY 2000 fee rule (65 FR 36946;

June 12, 2000), the NRC stated that it

would re-examine small entity fees each

year that annual fees are rebaselined.

Accordingly, the NRC has re-examined

the small entity fees and does not

believe that a change to the small entity

fees is warranted for FY 2001. In FY

2000, the NRC revised the small entity

fees for the first time since they were

introduced in FY 1991 and FY 1992.

The revision in FY 2000 was based on

the 25 percent increase in average total

fees assessed to other materials

licensees since the small entity fees

were first established and on changes

that had occurred in the fee structure for

materials licensees over time (65 FR

36956, 36957). The NRC does not

consider the approximately 13 percent

decrease in the average FY 2001 fees for

other materials licensees to be

significant enough to warrant another

change to the small entity fees this year.

Unlike the annual fees assessed to

other licensees, the small entity fees are

not designed to recover the agency costs

associated with particular licensees.

Rather, they are designed to provide

some fee relief for qualifying small

entity licensees while at the same time

recovering from those licensees some of

the NRC’s costs for activities that benefit

them. The costs not recovered from

small entities must be recovered from

other licensees. The current small entity

fees of $500 and $2,300 provide

considerable relief to many small

entities.

In the future the NRC plans to reexamine small entity fees every two

years, in the same years in which it

conducts the biennial review of fees as

required by the CFO Act, instead of each

year that annual fees are rebaselined as

indicated in the FY 2000 fee rule. The

annual fees for materials users now

include the cost of amendments,

renewals, and inspections. However, at

a maximum, annual fees are rebaselined

every three years, but may be

rebaselined earlier if warranted.

Therefore, reviewing the small entity

fees only when the annual fees are

rebaselined results in a variable

schedule for the re-examinations and

any potential changes to the fees. Reexamining the small entity annual fees

every two years, on the same schedule

as the biennial review under the CFO

Act, provides a routine, predictable

schedule and allows licensees to

anticipate when potential changes to

these fees might occur.

3. Other Amendments

The NRC currently sends an NRC

Form 526, ‘‘Certification of Small Entity

Status for the Purposes of Annual Fees

Imposed Under 10 CFR part 171,’’ with

each annual fee invoice issued to

materials licensees. Although the

instructions on the form state that it is

to be filed only by those licensees who

qualify as a small entity under NRC’s

size standards, the NRC has received

many improperly filed forms. When

contacted, many of these licensees have

indicated they completed the form

because it was enclosed with the annual

fee invoice. In an effort to minimize the

number of improperly filed forms, the

NRC will phase out mailing the form

with each annual fee invoice. Instead,

licensees will be able to access NRC

Form 526 on the NRC’s external web

site at http://www.nrc.gov. Those

licensees that qualify as a ‘‘small entity’’

under the NRC size standards at 10 CFR

Part 2.810 will be able to complete the

form in accordance with the

instructions provided and submit the

completed form and the appropriate

payment to the address provided on the

invoice. For licensees who cannot

access the NRC’s external web site, NRC

Form 526 can be obtained either

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

invoice, by calling the NRC’s fee staff at

301–415–7554, or by e-mailing the fee

staff at fees@nrc.gov.

In summary, the NRC has—

1. Established new rebaselined annual

fees for FY 2001;

2. Revised § 171.16(c)(2) to delete the

sentence indicating that NRC will mail

NRC Form 526 with each annual fee

invoice.

3. Revised § 171.19 to establish a

quarterly annual fee billing schedule for

Class I and Class II uranium recovery

licensees; and

4. Determined that the small entity

fees will be re-examined every two

years, on the same schedule as the

biennial review of fees required by the

CFO’s Act.

IV. Voluntary Consensus Standards

The National Technology Transfer

and Advancement Act of 1995, Pub. L.

104–113, requires that Federal agencies

use technical standards that are

developed or adopted by voluntary

consensus standards bodies unless

using such a standard is inconsistent

with applicable law or is otherwise

impractical. In this final rule, the NRC

is amending the licensing, inspection,

and annual fees charged to its licensees

and applicants as necessary to recover

approximately 98 percent of its budget

authority in FY 2001 as is 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

final 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 final regulation.

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 final rule contains no

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

final rule was developed pursuant to

Title V of the Independent Offices

Appropriation Act of 1952 (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,

32468 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

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 (D.C. Cir. 1976); National

Association of Broadcasters v. Federal

Communications Commission, 554 F.2d

1118 (D.C. Cir. 1976); Electronic

Industries Association v. Federal

Communications Commission, 554 F.2d

1109 (D.C. Cir. 1976); and Capital Cities

Communication, Inc. v. Federal

Communications Commission, 554 F.2d

1135 (D.C. 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—

(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 and with applicable

regulations;

(3) The NRC could charge for costs

incurred in conducting environmental

reviews required by NEPA;

(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 lowlevel 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

Pub. L. 101–508, the Omnibus Budget

Reconciliation Act of 1990 (OBRA–90),

which required that, for FYs 1991

through 1995, approximately 100

percent of the NRC budget authority 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 Appropriations Act

amended OBRA–90 to decrease the

NRC’s fee recovery amount from 100

percent to 98 percent of the NRC’s

budget authority for FY 2001. To

comply with this statutory requirement,

and in accordance with § 171.13, the

NRC is publishing the amount of the FY

2001 annual fees for reactor licensees,

fuel cycle licensees, materials licensees,

and holders of Certificates of

Compliance, registrations of sealed

source and devices and QA program

approvals, and Government agencies.

OBRA–90, consistent with the

accompanying Conference Committee

Report, and the amendments to OBRA–

90, provides that—

(1) The annual fees be based on

approximately 98 percent of the

Commission’s FY 2001 budget of $487.4

million less the amounts collected from

part 170 fees and funds directly

appropriated from the NWF to cover the

NRC’s high level waste program;

(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.

In addition, the NRC’s FY 2001

appropriations language provides that

$3.2 million appropriated from the

General Fund for activities related to

regulatory reviews and other assistance

provided to the other Federal agencies

and States be excluded from fee

recovery.

10 CFR 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 (D.C. 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 (D.C. Cir.

1993).

VIII. Regulatory Flexibility Analysis

The NRC is required by the Omnibus

Budget Reconciliation Act of 1990, as

amended, to recover approximately 98

percent of its FY 2001 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 final rule establishes the

schedules of fees that are necessary to

implement the Congressional mandate

for FY 2001. The final rule will 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,

including 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 final rule.

The Small Business Regulatory

Enforcement Fairness Act of 1996

(SBREFA) was signed into law on March

29, 1996. The 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 2001.

IX. Backfit Analysis

The NRC has determined that the

backfit rule, 10 CFR 50.109, does not

apply to this final rule and that a backfit

analysis is not required for this final

rule. The backfit analysis is not required

because these final 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.

X. Small Business Regulatory

Enforcement Fairness Act

In accordance with the Small

Business Regulatory Enforcement

Fairness Act of 1996, Pub. L. 104–121,

the NRC has determined that this action

is a major rule and has verified the

determination with the Office of

Information and Regulatory Affairs of

the Office of Management and Budget.

List of Subjects

10 CFR Part 150

Criminal penalties, Hazardous

materials transportation,

Intergovernmental relations, Nuclear

materials, Reporting and recordkeeping

requirements, Security measures,

Source material, Special nuclear

material.

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.

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32469

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,

and 5 U.S.C. 553, the NRC is adopting

the following amendments to 10 CFR

Parts 150, 170 and 171.

PART 150—EXEMPTIONS AND

CONTINUED REGULATORY

AUTHORITY IN AGREEMENT STATES

AND IN OFFSHORE WATERS UNDER

SECTION 274

1. The authority citation for Part 150

continues to read as follows:

Authority: Sec. 161, 68 Stat. 948, as

amended, sec. 274, 73 Stat. 688 (42 U.S.C.

2201, 2021); sec. 201, 88 Stat. 1242, as

amended (42 U.S.C. 5841).

Sections 150.3, 150.15, 150.15a, 150.31,

150.32 also issued under secs. 11e(2), 81, 68,

Stat. 923, 935, as amended, secs. 83, 84, 92

Stat. 3033, 3039 (42 U.S.C. 2014e(2), 2111,

2113, 2114). Section 150.14 also issued under

sec. 53, 68 Stat. 930, as amended (42 U.S.C.

2073). Section 150.15 also issued under secs.

135, 141, Pub. L. 97–425, 96 Stat. 2232, 2241

(42 U.S.C. 10155, 10161). Section 150.17a

also issued under sec. 122, 68 Stat. 939 (42

U.S.C. 2152). Section 150.30 also issued

under sec. 234, 83 Stat. 444 (42 U.S.C. 2282).

2. In § 150.20, paragraph (b)(2) is

revised to read as follows:

§ 150.20 Recognition of Agreement State

licenses.

* * * * *

(b) * * *

(2) Shall file an amended NRC Form

241 or letter with the Regional

Administrator to request approval for

changes in work locations, radioactive

material, or work activities different

from the information contained on the

initial NRC Form 241.

* * * * *

PART 170—FEES FOR FACILITIES,

MATERIALS, IMPORT AND EXPORT

LICENSES, AND OTHER

REGULATORY SERVICES UNDER THE

ATOMIC ENERGY ACT OF 1954, AS

AMENDED

3. The authority citation for Part 170

is revised to read as follows:

Authority: sec. 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).

4. Section 170.2 is amended by

adding paragraph (s) to read as follows:

§ 170.2 Scope.

* * * * *

(s) A holder of a general license

granted by 10 CFR Part 31 who is

required to register a device(s).

5. Section 170.3 is amended by

revising the definitions of Materials

License and Special Projects to read as

follows:

§ 170.3 Definitions.

* * * * *

Materials License means a license,

certificate, approval, registration, or

other form of permission issued or

granted by the NRC under the

regulations in 10 CFR Parts 30, 31

through 36, 39, 40, 61, 70, 72, and 76.

* * * * *

Special Projects means those requests

submitted to the Commission for review

for which fees are not otherwise

specified in this chapter. Examples of

special projects include, but are not

limited to, topical report reviews, early

site reviews, waste solidification

facilities, route approvals for shipment

of radioactive materials, services

provided to certify licensee, vendor, or

other private industry personnel as

instructors for Part 55 reactor operators,

reviews of financial assurance

submittals that do not require a license

amendment, reviews of responses to

Confirmatory Action Letters, reviews of

uranium recovery licensees’ land-use

survey reports, and reviews of 10 CFR

50.71 final safety analysis reports. As

used in this part, special projects does

not include requests/reports submitted

to the NRC—

(1) 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

requirements of the Generic Letter, or

does not involve an unreviewed safety

issue;

(2) In response to an NRC request (at

the Associate Office Director level or

above) to resolve an identified safety,

safeguards, or environmental issue, or to

assist the NRC in developing a rule,

regulatory guide, policy statement,

generic letter, or bulletin; or

(3) As a means of exchanging

information between industry

organizations and the NRC for the

purpose of supporting the NRC’s generic

regulatory improvements or efforts.

* * * * *

6. In § 170.12, paragraph (a) is revised

to read as follows:

§ 170.12 Payment of Fees.

(a) Application and registration fees.

Each application or registration for

which a fee is prescribed must be

accompanied by a remittance for the full

amount of the fee. The NRC will not

issue a new license or an amendment

increasing the scope of an existing

license to a higher fee category before

receiving the prescribed application fee.

The application or registration fee(s) is

charged whether the Commission

approves the application or not. The

application or registration fee(s) is also

charged if the applicant withdraws the

application or registration.

* * * * *

7. Section 170.20 is revised to read as

follows:

§ 170.20 Average cost per professional

staff-hour.

Fees for permits, licenses,

amendments, renewals, special projects,

Part 55 re-qualification and replacement

examinations and tests, other required

reviews, approvals, and inspections

under §§ 170.21 and 170.31 will be

calculated using the following

applicable professional staff-hour rates:

Reactor Program (§ 170.21 Activities): $150

per hour

Nuclear Materials and Nuclear Waste

Program (§ 170.31 Activities): $144 per

hour

8. In § 170.21, the introductory text,

Category K, and footnotes 1, 2, 3, and 4

to the table are revised to read as

follows:

§ 170.21 Schedule of fees for production

and utilization facilities, review of standard

referenced design approvals, special

projects, inspections, and import and

export licenses.

Applicants for construction permits,

manufacturing licenses, operating

licenses, import and export licenses,

approvals of facility standard reference

designs, re-qualification and

replacement examinations for reactor

operators, and special projects and

holders of construction permits,

licenses, and other approvals shall pay

fees for the following categories of

services.

32470 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

SCHEDULE OF FACILITY FEES

[See footnotes at end of table]

Facility categories and type of fees Fees 1,2

*******

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 reactors and other facilities and exports of components which must be reviewed by the

Commissioners and the Executive Branch, for example, actions under 10 CFR 110.40(b):

Application-new license ............................................................................................................................................................. $9,400

Amendment ............................................................................................................................................................................... $9,400

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 ............................................................................................................................................................. $5,500

Amendment ............................................................................................................................................................................... $5,500

3. Application for export of components requiring foreign government assurances only:

Application-new license ............................................................................................................................................................. $1,700

Amendment ............................................................................................................................................................................... $1,700

4. Application for export of facility components and equipment not requiring Commissioner review, Executive Branch review,

or foreign government assurances:

Application-new license ............................................................................................................................................................. $1,200

Amendment ............................................................................................................................................................................... $1,200

5. Minor amendment of any export or import license to extend the expiration date, change domestic information, or make

other revisions which do not require in-depth analysis or review:

Amendment ............................................................................................................................................................................... $220

1Fees will not be charged for orders issued by the Commission under § 2.202 of this chapter or for amendments resulting specifically from the

requirements of these types of Commission orders. 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., §§ 50.12, 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. Fees

for licenses in this schedule that are initially issued for less than full power are based on review through the issuance of a full power license

(generally full power is considered 100 percent of the facility’s full rated power). Thus, if a licensee received a low power license or a temporary

license for less than full power and subsequently receives full power authority (by way of license amendment or otherwise), the total costs for the

license will be determined through that period when authority is granted for full power operation. If a situation arises in which the Commission determines that full operating power for a particular facility should be less than 100 percent of full rated power, the total costs for the license will be

at that determined lower operating power level and not at the 100 percent capacity. 2Full 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 at the time the service was

provided. For those applications currently on file for which review costs have reached an applicable fee ceiling established by the final rule effective June 20, 1984 (and contained in the 10 CFR, parts 0 to 199, edition revised as of January 1, 1985) and the final rule effective July 2, 1990

(and contained in the 10 CFR, parts 51 to 199, edition revised as of January 1, 1991), 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 § 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 § 170.20. 3 Inspections covered by this schedule are both routine and non-routine safety and safeguards inspections performed by NRC for the purpose

of review or follow-up of a licensed program. Inspections are performed through the full term of the license to ensure that the authorized activities

are being conducted in accordance with the Atomic Energy Act of 1954, as amended, other legislation, Commission regulations or orders, and

the terms and conditions of the license. Non-routine inspections that result from third-party allegations will not be subject to fees. 4Fees will not be assessed for requests/reports submitted to the NRC—

(a) 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

requirements of the Generic Letter, or

does not involve an unreviewed safety

issue;

(b) In response to an NRC request (at

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

(c) As a means of exchanging

information between industry

organizations and the NRC for the

purpose of supporting NRC’s generic

regulatory improvements or efforts.

9. Section 170.31 is revised to read as

follows:

§ 170.31 Schedule of fees for materials

licenses and other regulatory services,

including inspections, and import and

export licenses.

Applicants for materials licenses,

import and export licenses, and other

regulatory services, and holders of

materials licenses or import and export

licenses shall pay fees for the following

categories of services. This schedule

includes fees for health and safety and

safeguards inspections where

applicable.

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32471

SCHEDULE OF MATERIALS FEES

Category of materials licenses and type of fees 1 Fees 2 3

1. Special nuclear material:

A. Licenses for possession and use of 200 grams or more of plutonium in unsealed form or 350 grams or more of contained

U–235 in unsealed form or 200 grams or more of U–233 in unsealed form. This includes applications to terminate licenses

as well as licenses authorizing possession only: Licensing and Inspection ................................................................................ Full Cost

B. Licenses for receipt and storage of spent fuel at an independent spent fuel storage installation (ISFSI): Licensing and inspection ......................................................................................................................................................................................... Full Cost

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 ................................................................................. $660

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 § 150.11 of this chapter, for which the licensee shall pay the

same fees as those for Category 1A: 4 Application ...................................................................................................................... $1,300

E. Licenses or certificates for construction and operation of a uranium enrichment facility: Licensing and inspection ................. Full Cost

2. Source material:

A.(1) Licenses for possession and use of source material in recovery operations such as milling, in-situ leaching, heap-leaching, refining uranium mill concentrates to uranium hexafluoride, ore buying stations, and 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: Licensing and inspection ...................................... Full Cost

(2) Licenses that authorize the receipt of 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 fees in Category 2A(1): Licensing and inspection ................................................................................................................................................................................................ Full Cost

(3) Licenses that authorize the receipt of 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 2A(1): Licensing and inspection ...................... Full Cost

B. Licenses which authorize the possession, use, and/or installation of source material for shielding: Application ...................... $160

C. All other source material licenses: Application ............................................................................................................................ $5,700

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 .......................... $6,700

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 .......................................................... $2,200

C. Licenses issued under §§ 32.72, 32.73, 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 10 CFR 170.11(a)(4). These licenses are covered by fee Category 3D: Application .............. $8,700

D. Licenses and approvals issued under §§ 32.72, 32.73, 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 §§ 32.72, 32.73, and/or 32.74 of this chapter to nonprofit educational institutions whose processing or manufacturing is exempt under 10 CFR 170.11(a)(4): Application .................................................. $2,400

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 ...................................................................................................... $1,700

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 ............................................................ $3,400

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 ............................................................ $8,000

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 ....................................................................................................... $2,300

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 ............................... $3,400

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 ........................................................................................................................ $1,000

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 ............................................................ $590

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 .................................................................. $5,700

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 .............................................................................................. $2,500

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 4A, 4B, and 4C: Application .............................................................................. $2,600

32472 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

SCHEDULE OF MATERIALS FEES—Continued

Category of materials licenses and type of fees 1 Fees 2 3

O. Licenses for possession and use of byproduct material issued under part 34 of this chapter for industrial radiography operations: Application ......................................................................................................................................................................... $4,200

P. All other specific byproduct material licenses, except those in Categories 4A through 9D: Application ................................... $1,300

Q. Registration of a device(s) generally licensed under part 31: Registration ................................................................................ $450

4. Waste disposal and processing:

A. Licenses specifically authorizing the receipt 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: Licensing and inspection .............................................. Full Cost

B. Licenses specifically authorizing the receipt of waste byproduct material, source material, or special nuclear material from

other persons for the purpose of packaging or repackaging the material. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material: Application ................................................................... $1,700

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 .............................................................................................................................................. $2,600

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 ................................................................. $5,600

B. Licenses for possession and use of byproduct material for field flooding tracer studies: Licensing .......................................... 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 ......................................................................................................................................................... $11,500

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 teletherapy devices: Application ......................................................... $6,300

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: Application ........... $4,500

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 ..................................................................................................... $2,200

8. Civil defense:

A. Licenses for possession and use of byproduct material, source material, or special nuclear material for civil defense activities: Application ............................................................................................................................................................................. $330

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 ............................................................................... $5,400

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 .................................................................................................................................................................. $5,400

C. Safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, except reactor fuel, for commercial distribution: Application—each source ............................................................................................... $1,600

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 .................................................................................................................................................................................. $550

10. Transportation of radioactive material:

A. Evaluation of casks, packages, and shipping containers: Licensing and inspections ................................................................ Full Cost

B. Evaluation of 10 CFR part 71 quality assurance programs:

Application ................................................................................................................................................................................. $650

Inspections ................................................................................................................................................................................ Full Cost

11. Review of standardized spent fuel facilities: Licensing and inspection ............................................................................................ Full Cost

12. Special projects:5

Approvals and preapplication/.

Licensing activities ............................................................................................................................................................................ Full Cost

Inspections ........................................................................................................................................................................................ Full Cost

13. A. Spent fuel storage cask Certificate of Compliance: Licensing ..................................................................................................... Full Cost

B. Inspections related to spent fuel storage cask Certificate of Compliance .................................................................................. Full Cost

C. Inspections related to storage of spent fuel under § 72.210 of this chapter ............................................................................... Full Cost

14. Byproduct, source, or special nuclear material licenses and other approvals authorizing decommissioning, decontamination,

reclamation, or site restoration activities under parts 30, 40, 70, 72, and 76 of this chapter: Licensing and inspection .................. Full Cost

15. Import and Export licenses: Licenses issued under 10 CFR part 110 of this chapter for the import and export only of special

nuclear material, source material, tritium and other byproduct material, heavy water, or nuclear grade graphite:

A. Application for export or import of high enriched uranium and other materials, including radioactive waste, which must be

reviewed by the Commissioners and the Executive Branch, for example, those actions under 10 CFR 110.40(b). This category includes application for export or import of radioactive wastes in multiple forms from multiple generators or brokers in

the exporting country and/or going to multiple treatment, storage or disposal facilities in one or more receiving countries:

Application—new license .......................................................................................................................................................... $9,400

Amendment ............................................................................................................................................................................... $9,400

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32473

SCHEDULE OF MATERIALS FEES—Continued

Category of materials licenses and type of fees 1 Fees 2 3

B. Application for export or import of special nuclear material, source material, tritium and other byproduct material, heavy

water, or nuclear grade graphite, including radioactive waste, requiring Executive Branch review but not Commissioner review. This category includes application for the export or import of radioactive waste involving a single form of waste from a

single class of generator in the exporting country to a single treatment, storage and/or disposal facility in the receiving

country:

Application—new license .......................................................................................................................................................... $5,500

Amendment ............................................................................................................................................................................... $5,500

C. Application for export of routine reloads of low enriched uranium reactor fuel and exports of source material requiring only

foreign government assurances under the Atomic Energy Act:

Application—new license .......................................................................................................................................................... $1,700

Amendment ............................................................................................................................................................................... $1,700

D. Application for export or import of other materials, including radioactive waste, not requiring Commissioner review, Executive Branch review, or foreign government assurances under the Atomic Energy Act. This category includes application 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, 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 .......................................................................................................................................................... $1,200

Amendment ............................................................................................................................................................................... $1,200

E. Minor amendment of any export or import license to extend the expiration date, change domestic information, or make

other revisions which do not require in-depth analysis, review, or consultations with other agencies or foreign governments:

Amendment ................................................................................................................................................................................... $220

16. Reciprocity:

Agreement State licensees who conduct activities under the reciprocity provisions of 10 CFR 150.20: Application .................... $1,400

1Types of fees—Separate charges, as shown in the schedule, will be assessed for pre-application consultations and reviews and applications

for new licenses and approvals, issuance of new licenses and approvals, certain amendments and renewals to existing licenses and approvals,

safety evaluations of sealed sources and devices, 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 1C only.

(b) Licensing fees. Fees for reviews of applications for new licenses and for renewals and amendments to existing licenses, for pre-application

consultations and for reviews of other documents submitted to NRC for review, and for project manager time for fee categories subject to full

cost fees (fee Categories 1A, 1B, 1E, 2A, 4A, 5B, 10A, 11, 12, 13A, and 14) are due upon notification by the Commission in accordance with

§ 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 a 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 § 170.12(c).

(e) Generally licensed device registrations under 10 CFR 31.5. Submittals of registration information must be accompanied by the prescribed

fee. 2Fees will not be charged for orders issued by the Commission under 10 CFR 2.202 or for amendments resulting specifically from the requirements of these types of Commission orders. However, 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 9A through 9D. 3Full cost fees will be determined based on the professional staff time multiplied by the appropriate professional hourly rate established in

§ 170.20 in effect at the time the service is provided, and the appropriate contractual support services expended. For those applications currently

on file for which review costs have reached an applicable fee ceiling established by the final rule effective June 20, 1984 (and contained in the

10 CFR, parts 0 to 199, edition revised as of January 1, 1985) and the final rule effective July 2, 1990 (and contained in the 10 CFR, parts 51 to

199, edition revised as of January 1, 1991), 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 § 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 § 170.20. 4 Licensees paying fees under Categories 1A, 1B, and 1E are not subject to fees under Categories 1C and 1D for sealed sources authorized

in the same license except for an application that deals only with the sealed sources authorized by the license. 5Fees will not be assessed for requests/reports submitted to the NRC—

(a) 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 re-analysis to meet the requirements of the Generic Letter, or does not involve an unreviewed safety issue;

(b) In response to an NRC request (at the Associate Office Director level or above) to resolve an identified safety, safeguards, or environmental issue, or to assist the NRC in developing a rule, regulatory guide, policy statement, generic letter, or bulletin; or

(c) As a means of exchanging information between industry organizations and the NRC for the purpose of supporting the NRC’s generic regulatory improvements or efforts.

32474 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

10. Section 170.41 is revised to read

as follows:

§ 170.41 Failure by applicant or licensee to

pay prescribed fees.

If the Commission determines that an

applicant or a licensee has failed to pay

a prescribed fee required in this part,

the Commission will not process any

application and may suspend or revoke

any license or approval issued to the

applicant or licensee. The Commission

may issue an order with respect to

licensed activities that the Commission

determines to be appropriate or

necessary to carry out the provisions of

this part, parts 30, 31, 32 through 35, 40,

50, 61, 70, 71, 72, 73, and 76 of this

chapter, and of the act.

PART 171—ANNUAL FEES FOR

REACTOR LICENSES AND FUEL

CYCLE LICENSES AND MATERIAL

LICENSES, INCLUDING HOLDERS OF

CERTIFICATES OF COMPLIANCE,

REGISTRATIONS, AND QUALITY

ASSURANCE PROGRAM APPROVALS

AND GOVERNMENT AGENCIES

LICENSED BY THE NRC

11. The authority citation for Part 171

is revised to read as follows:

Authority: Sec. 7601, Pub. L. 99–272, 100

Stat. 146, as amended by sec. 5601, Pub. L.

100–203, 101 Stat. 1330, 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); 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).

12. In § 171.5, the definition of

Materials License is revised to read as

follows:

§ 171.5 Definitions.

* * * * *

Materials License means a license,

certificate, approval, registration or

other form of permission issued or

granted by the NRC under the

regulations in 10 CFR parts 30, 31

through 36, 39, 40, 61, 70, 71, 72, and

76.

* * * * *

13. In § 171.15, paragraphs (b), (c), (d),

and (e) are revised to read as follows:

§ 171.15 Annual Fees: Reactor licenses

and independent spent fuel storage

licenses.

* * * * *

(b)(1) The FY 2001 annual fee for each

operating power reactor which must be

collected by September 30, 2001, is

$2,753,000.

(2) The FY 2001 annual fee is

comprised of a base operating power

reactor annual fee, a base spent fuel

storage/reactor decommissioning annual

fee, and associated additional charges

(surcharges). The activities comprising

the FY 2001 spent storage/reactor

decommissioning base annual fee are

shown in paragraph (c)(2)(i) and (ii) of

this section. The activities comprising

the FY 2001 surcharge are shown in

paragraph (d)(1) of this section. The

activities comprising the FY 2001 base

annual fee for operating power reactors

are as follows:

(i) Power reactor safety and safeguards

regulation except licensing and

inspection activities recovered under

part 170 of this chapter and generic

reactor decommissioning activities.

(ii) Research activities directly related

to the regulation of power reactors,

except those activities specifically

related to reactor decommissioning.

(iii) Generic activities required largely

for NRC to regulate power reactors, e.g.,

updating part 50 of this chapter, or

operating the Incident Response Center.

The base annual fee for operating power

reactors does not include generic

activities specifically related to reactor

decommissioning.

(c)(1) The FY 2001 annual fee for each

power reactor holding a part 50 license

that is in a decommissioning or

possession only status and has spent

fuel on-site and each independent spent

fuel storage part 72 licensee who does

not hold a part 50 license is $266,000.

(2) The FY 2001 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 (surcharge). The

activities comprising the FY 2001

surcharge are shown in paragraph (d)(1)

of this section. The activities comprising

the FY 2001 spent fuel storage/reactor

decommissioning rebaselined annual

fee are—

(i) Generic and other research

activities directly related to reactor

decommissioning and spent fuel

storage; and

(ii) Other safety, environmental, and

safeguards activities related to reactor

decommissioning and spent fuel

storage, except costs for licensing and

inspection activities that are recovered

under part 170 of this chapter.

(d)(1) The activities comprising the

FY 2001 surcharge are as follows:

(i) Low level waste disposal generic

activities;

(ii) Activities not attributable to an

existing NRC licensee or class of

licensees (e.g., international cooperative

safety program and international

safeguards activities, support for the

Agreement State program, and site

decommissioning management plan

(SDMP) activities); and

(iii) Activities not currently subject to

10 CFR part 170 licensing and

inspection fees based on existing law or

Commission policy (e.g., reviews and

inspections of nonprofit educational

institutions, licensing actions for

Federal agencies, and costs that would

not be collected from small entities

based on Commission policy in

accordance with the Regulatory

Flexibility Act).

(2) The total FY 2001 surcharge

allocated to the operating power reactor

class of licensees is $38.2 million, not

including the amount allocated to the

spent fuel storage/reactor

decommissioning class. The FY 2001

operating power reactor surcharge to be

assessed to each operating power reactor

is approximately $367,000. This amount

is calculated by dividing the total

operating power reactor surcharge

($38.2 million) by the number of

operating power reactors (104).

(3) The FY 2001 surcharge allocated

to the spent fuel storage/reactor

decommissioning class of licensees is

$4.3 million. The FY 2001 spent fuel

storage/reactor decommissioning

surcharge 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 part 72 licensee who

does not hold a part 50 license is

approximately $35,600. This amount is

calculated by dividing the total

surcharge costs allocated to this class by

the total number of power reactor

licenses, except those that permanently

ceased operations and have no fuel on

site, and part 72 licensees who do not

hold a part 50 license.

(e) The FY 2001 annual fees for

licensees authorized to operate a nonpower (test and research) reactor

licensed under part 50 of this chapter,

unless the reactor is exempted from fees

under § 171.11(a), are as follows:

Research reactor: $74,000

Test reactor: $74,000

14. In § 171.16, paragraphs (c), (d) and

(e) are revised to read as follows:

§ 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.

* * * * *

(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

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32475

the Commission with the proper

certification along with its annual fee

payment, the licensee may pay reduced

annual fees as shown in this paragraph.

Failure to file a small entity certification

in a timely manner could result in the

denial of any refund that might

otherwise be due.

Maximum annual fee per licensed category

Small Businesses Not Engaged in Manufacturing and Small Not-For-Profit Organizations (Gross Annual Receipts):

$350,000 to $5 million .................................................................................................................................................................. $2,300

Less than $350,000 ...................................................................................................................................................................... 500

Manufacturing entities that have an average of 500 employees or less:

35 to 500 employees .................................................................................................................................................................... 2,300

Less than 35 employees .............................................................................................................................................................. 500

Small Governmental Jurisdictions (Including publicly supported educational institutions) (Population):

20,000 to 50,000 .......................................................................................................................................................................... 2,300

Less than 20,000 .......................................................................................................................................................................... 500

Educational Institutions that are not State or Publicly Supported, and have 500 Employees or Less:

35 to 500 employees .................................................................................................................................................................... 2,300

Less than 35 employees .............................................................................................................................................................. 500

(1) A licensee qualifies as a small

entity if it meets the size standards

established by the NRC (See 10 CFR

2.810).

(2) A licensee who seeks to establish

status as a small entity for the purpose

of paying the annual fees required under

this section must file a certification

statement with the NRC. The licensee

must file the required certification on

NRC Form 526 for each license under

which it is billed. NRC Form 526 can be

accessed through the NRC’s external

web site at http://www.nrc.gov.

Licensees who cannot access the NRC’s

external web site may obtain NRC Form

526 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, by calling the fee staff

at 301–415–7554, or by e-mailing the fee

staff at <fees@nrc.gov>.

(3) For purposes of this section, the

licensee must submit a new certification

with its annual fee payment each year.

(4) The maximum annual fee a small

entity is required to pay is $2,300 for

each category applicable to the

license(s).

(d) The FY 2001 annual fees for

materials licensees and holders of

certificates, registrations or approvals

subject to fees under this section are

shown in this paragraph. The FY 2001

annual fees are comprised of a base

annual fee and an additional charge

(surcharge). The activities comprising

the FY 2001 surcharge are shown for

convenience in paragraph (e) of this

section.

SCHEDULE OF MATERIALS ANNUAL FEES AND FEES FOR GOVERNMENT AGENCIES LICENSED BY NRC

Category of materials licenses Annual

fees 123

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:

Babcock & Wilcox SNM–42 ........................................................................................................................................... $3,545,000

Nuclear Fuel Services SNM–124 ................................................................................................................................... 3,545,000

(b) Low Enriched Uranium in Dispersible Form Used for Fabrication of Power Reactor Fuel:

Westinghouse Electric Company LLC SNM-33 ............................................................................................................. 1,146,000

Global Nuclear Fuel—Americas, LLC SNM–1097 ......................................................................................................... 1,146,000

Framatome ANP Richland, Inc. SNM-1227 ................................................................................................................... 1,146,000

Westinghouse Electric—Columbia SNM-1107 .............................................................................................................. 1,146,000

(2) All other special nuclear materials licenses not included in Category 1A(1) which are licensed for fuel cycle activities.

(a) Facilities with limited operations: Framatome Cogema SNM–1168 ............................................................................... 467,000

(b) All Others: General Electric SNM–960 ............................................................................................................................ 340,000

B. Licenses for receipt and storage of spent fuel at an independent spent fuel storage installation (ISFSI) ............................. N/A11

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 ................................................................................................... 1,400

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 § 150.11 of this chapter, for which the licensee shall pay

the same fees as those for Category 1A(2) ............................................................................................................................. 3,300

E. Licenses or certificates for the operation of a uranium enrichment facility ............................................................................. 2,208,000

2. Source material:

A.(1) Licenses for possession and use of source material for refining uranium mill concentrates to uranium hexafluoride ..... 509,000

(2) Licenses for possession and use of source material in recovery operations such as milling, in-situ leaching, 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:.

Class I facilities 4 ................................................................................................................................................................... 94,300

Class II facilities 4 .................................................................................................................................................................. 79,000

Other facilities 4 ..................................................................................................................................................................... 29,900

32476 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

SCHEDULE OF MATERIALS ANNUAL FEES AND FEES FOR GOVERNMENT AGENCIES LICENSED BY NRC—Continued

Category of materials licenses Annual

fees 123

(3) Licenses that authorize the receipt of 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 2A(2) or Category

2A(4) ......................................................................................................................................................................................... 58,200

(4) Licenses that authorize the receipt of 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 2A(2) ..................................................... 9,200

B. Licenses that authorize only the possession, use and/or installation of source material for shielding .................................. 690

C. All other source material licenses ........................................................................................................................................... 11,000

3. Byproduct material:

A. Licenses of broad scope for 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 .......................................... 20,500

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 ........................................................................ 5,300

C. Licenses issued under §§ 32.72, 32.73, and/or 32.74 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 10 CFR 171.11(a)(1). These licenses are

covered by fee Category 3D ..................................................................................................................................................... 12,300

D. Licenses and approvals issued under §§ 32.72, 32.73, 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 §§ 32.72, 32.73 and 32.74 of this chapter to nonprofit educational

institutions whose processing or manufacturing is exempt under 10 CFR 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 ....................................................................................................................................................................................... 3,900

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) .................................................................................................................. 3,200

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 in which the source is not exposed for irradiation purposes .................................................................... 5,800

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 in which the source is not exposed for irradiation purposes .................................................................... 20,900

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, 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 ............................................................................................................................................... 3,200

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, 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 ........................................................................... 4,600

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, except specific licenses

authorizing redistribution of items that have been authorized for distribution to persons generally licensed under part 31

of this chapter ........................................................................................................................................................................... 2,100

K. Licenses issued under subpart B of part 31 of this chapter to distribute items containing byproduct material or quantities

of byproduct material that do not require sealed source and/or device review to persons generally licensed under part 31

of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to

persons generally licensed under part 31 of this chapter ........................................................................................................ 1,400

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 .............................................................................. 10,000

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 ......................................................................................................... 4,400

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 4A, 4B, and 4C ........................................................................................ $4,800

O. Licenses for possession and use of byproduct material 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 .................................................................................................................. 12,500

P. All other specific byproduct material licenses, except those in Categories 4A through 9D ................................................... 2,400

Q. Registration of devices generally licensed under part 31 of this chapter ............................................................................... 13 N/A

4. Waste disposal and processing:

A. Licenses specifically authorizing the receipt 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 ............................................................... 5 N/A

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 ........................................................................... 9,800

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32477

SCHEDULE OF MATERIALS ANNUAL FEES AND FEES FOR GOVERNMENT AGENCIES LICENSED BY NRC—Continued

Category of materials licenses Annual

fees 123

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 ............................................................................................................................................ 7,400

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 ................................................................................. 8,800

B. Licenses for possession and use of byproduct material for field flooding tracer studies ....................................................... 5 N/A

6. Nuclear laundries: A. Licenses for commercial collection and laundry of items contaminated with byproduct material, source

material, or special nuclear material ................................................................................................................................................ 16,900

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 teletherapy devices. This category also includes the possession

and use of source material for shielding when authorized on the same license ..................................................................... 13,900

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.9 ... 24,200

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. This category also includes the possession and use of source material

for shielding when authorized on the same license.9 .............................................................................................................. 4,600

8. Civil defense: A. Licenses for possession and use of byproduct material, source material, or special nuclear material for civil

defense activities .............................................................................................................................................................................. 1,100

9. Device, product, or sealed source safety evaluation:

A. Registrations issued for the safety evaluation of devices or products containing byproduct material, source material, or

special nuclear material, except reactor fuel devices, for commercial distribution .................................................................. 5,800

B. Registrations issued for the 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 ....................................................................................................................................................... 5,800

C. Registrations issued for the safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, except reactor fuel, for commercial distribution ..................................................................................... 1,700

D. Registrations issued for the 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 .................................................................................................................................................................... 590

10. Transportation of radioactive material:

A. Certificates of Compliance or other package approvals issued for design of casks, packages, and shipping containers.

Spent Fuel, High-Level Waste, and plutonium air packages ....................................................................................................... 6 N/A

Other Casks .................................................................................................................................................................................. 6 N/A

B. Quality assurance program approvals issued under 10 CFR part 71.

Users and Fabricators ........................................................................................................................................................... 62,500

Users ..................................................................................................................................................................................... 6,100

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 CFR 72.210 12 N/A

14. Byproduct, source, or special nuclear material licenses and other approvals authorizing decommissioning, decontamination,

reclamation, or site restoration activities under 10 CFR parts 30, 40, 70, 72, and 76 of this chapter ........................................... 7 N/A

15. Import and Export licenses ............................................................................................................................................................ 8 N/A

16. Reciprocity ..................................................................................................................................................................................... 8 N/A

17. Master materials licenses of broad scope issued to Government agencies ................................................................................ 306,000

18. Department of Energy:

A. Certificates of Compliance ....................................................................................................................................................... 10 1,107,000

B. Uranium Mill Tailing Radiation Control Act (UMTRCA) activities ............................................................................................ 654,000

1Annual 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 fiscal year. However, the annual fee is waived for those materials licensees and holders of certificates, registrations,

and approvals who either filed for termination of their licenses or approvals or filed for possession only/storage licenses prior to October 1, 2000,

and permanently ceased licensed activities entirely by September 30, 2000. Annual fees for licensees who filed for termination of a license,

downgrade of a license, or for a possession only license during the fiscal year and for new licenses issued during the fiscal year will be prorated

in accordance with the provisions of § 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 1A(1) are not subject to the annual fees for Category 1C and 1D for sealed sources authorized in the license. 2Payment 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. 3Each fiscal year, fees for these materials licenses will be calculated and assessed in accordance with § 171.13 and will be published in the

Federal Register for notice and comment. 4A Class I license includes mill licenses issued for the extraction of uranium from uranium ore. A Class II license includes solution mining licenses (in-situ and heap leach) issued for the extraction of uranium from uranium ores including research and development licenses. An ‘‘other’’

license includes licenses for extraction of metals, heavy metals, and rare earths. 5There 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.

32478 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

6Standardized spent fuel facilities, 10 CFR parts 71 and 72 Certificates of Compliance, 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. 9Separate annual fees will not be assessed for pacemaker licenses issued to medical institutions who also hold nuclear medicine licenses

under Categories 7B or 7C. 10This includes Certificates of Compliance issued to DOE that are not under the Nuclear Waste Fund. 11See 10 CFR 171.15(c). 12See 10 CFR 171.15(c). 13 No annual fee is charged for this category because the cost of the general license registration program will be recovered through 10 CFR

part 170 fees.

(e) The activities comprising the

surcharge are as follows:

(1) LLW disposal generic activities;

(2) Activities not directly attributable

to an existing NRC licensee or class(es)

of licensees (e.g., international

cooperative safety program and

international safeguards activities,

support for the Agreement State

program, and Site Decommissioning

Management Plan (SDMP) activities);

and

(3) Activities not currently assessed

licensing and inspection fees under 10

CFR part 170 based on existing law or

Commission policy (e.g., reviews and

inspections of nonprofit educational

institutions and reviews for Federal

agencies; activities related to

decommissioning and reclamation; and

costs that would not be collected from

small entities based on Commission

policy in accordance with the

Regulatory Flexibility Act).

15. In § 171.19, paragraphs (b) and (d)

are revised to read as follows:

§ 171.19 Payment.

* * * * *

(b) Annual fees in the amount of

$100,000 or more and described in the

Federal Register document issued

under § 171.13, and annual fees for

Class I and Class II uranium recovery

licensees must be paid in quarterly

installments of 25 percent as billed by

the NRC. The quarters begin on October

1, January 1, April 1, and July 1 of each

fiscal year. The NRC will adjust the

fourth quarterly invoice to recover the

full amount of the revised annual fee. If

the amounts collected in the first three

quarters exceed the amount of the

revised annual fee, the overpayment

will be refunded. Licensees whose

annual fee for the previous fiscal year

was less than $100,000 (billed on the

anniversary date of the license), and

whose revised annual fee for the current

fiscal year is $100,000 or greater (subject

to quarterly billing), will be issued a bill

upon publication of the final rule for the

full amount of the revised annual fee for

the current fiscal year, less any

payments received for the current fiscal

year based on the anniversary date

billing process.

* * * * *

(d) Annual fees of less than $100,000

must be paid as billed by the NRC.

Materials license annual fees that are

less than $100,000, except those for

Class I and Class II uranium recovery

licensees, are billed on the anniversary

date of the license. The materials

licensees that are billed on the

anniversary date of the license are those

covered by fee categories 1C, 1D, 2A(2)

Other Facilities, 2A(3), 2A(4), 2B, 2C,

3A through 3P, 4B through 9D, 10A, and

10B.

* * * * *

Dated at Rockville, Maryland, this 31st day

of May, 2001.

For the Nuclear Regulatory Commission.

Jesse L. Funches,

Chief Financial Officer.

Note: This Appendix will not appear in the

code of Federal Register.

Appendix A to this Final Rule—

Regulatory Flexibility Analysis for the

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

small entities (10 CFR 2.801). These size

standards reflect the Small Business

Administration’s most common receiptsbased 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 final rule

are based on the NRC’s size standards.

From FY 1991 through FY 2000, the

Omnibus Budget Reconciliation Act (OBRA–

90), as amended, required that the NRC

recover approximately 100 percent of its

budget authority, less appropriations from

the Nuclear Waste Fund, by assessing license

and annual fees. The FY 2001 Energy and

Water Development Appropriations Act

amended OBRA–90 to decrease the NRC’s fee

recovery amount for FY 2001 to 98 percent

of the NRC’s budget. Certain NRC costs

related to reviews and assistance provided to

other Federal agencies and States were

excluded from the fee recovery requirement

for FY 2001 by the Energy and Water

Development Appropriations Act. The

amount to be recovered for FY 2001 is

approximately $453.3 million.

OBRA–90 requires that the schedule of

charges established by rule should fairly and

equitably allocate the total amount to be

recovered from 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 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

NRC in identifying and determining the fees

to be assessed and collected in any given

fiscal year.

In FY 1995, the NRC announced that, in

order to stabilize fees, annual fees would be

adjusted only by the percentage change (plus

or minus) in NRC’s total budget authority,

adjusted for changes in estimated collections

for 10 CFR part 170 fees, the number of

licensees paying annual fees, and as

otherwise needed to assure the billed

amounts resulted in the required collections.

The NRC indicated that if there were a

substantial change in the total NRC budget

authority or the magnitude of the budget

allocated to a specific class of licensees, the

annual fee base would be recalculated.

In FY 1999, the NRC concluded that there

had been significant changes in the allocation

of agency resources among the various

classes of licensees and established

rebaselined annual fees for FY 1999. The

NRC stated in the final FY 1999 rule that to

stabilize fees it would continue to adjust the

annual fees by the percent change method

established in FY 1995, unless there were a

substantial change in the total NRC budget or

the magnitude of the budget allocated to a

specific class of licensees, in which case the

annual fee base would be reestablished.

After carefully considering all factors,

including the changes to the amount of the

budget allocated to classes of licensees, and

weighing the complex issues related to both

fairness and stability of fees, the Commission

has determined that it is appropriate to

rebaseline its part 171 annual fees in FY

2001. This rebaselining results in reduced

annual fees for a majority of the categories of

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32479

licenses, and increased annual fees for other

categories.

The Small Business Regulatory

Enforcement Fairness Act of 1996 (SBREFA)

is intended to reduce regulatory burdens

imposed by Federal agencies on small

businesses, nonprofit organizations, and

governmental jurisdictions. SBREFA also

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.

SBREFA also requires that an agency prepare

a guide to assist small entities in complying

with each rule for which a final regulatory

flexibility analysis is prepared. This

Regulatory Flexibility Analysis (RFA) and the

small entity compliance guide (Attachment

1) have been prepared for the FY 2001 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 that are

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 proposed 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

annual fees on materials licensees. About 20

percent of these licensees (approximately

1,400 licensees for FY 2000) have requested

small entity certification in the past.

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 highvolume type of operation. In competitive

markets, such as soils 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 wellloggers, 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. One commenter noted that the

proposal would put it, and several other

small companies, out of business, or, at the

very least, make it hard to survive.

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.

Since annual fees for materials licenses

were first established in 1991, approximately

3,000 license, approval, and registration

terminations have been requested. 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 as it

developed each of its fee rules since 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 1991.

Because small entities in those Agreement

States were paying the fees, the NRC

concluded that these fees did not have a

significant impact on a substantial number of

small entities. Therefore, those fees were

considered a useful benchmark in

establishing the NRC maximum small entity

annual fee.

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 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 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 re-analysis, the maximum

small entity annual fee was increased from

$1,800 to $2,300 in FY 2000. By increasing

the maximum annual fee for small entities

from $1,800 to $2,300, the annual fee for

many small entities was reduced while at the

same time materials licensees, including

small entities, would pay for most of the

costs attributable to them. The costs not

recovered from small entities are 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 less 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.

In the FY 2000 fee rule (65 FR 36946; June

12, 2000), the NRC stated that it would reVerDate 11<MAY>2000 14:42 Jun 13, 2001 Jkt 194001 PO 00000 Frm 00029 Fmt 4701 Sfmt 4700 E:\FR\FM\14JNR2.SGM pfrm01 PsN: 14JNR2
32480 Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations

1An 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.

examine small entity fees each year that

annual fees are rebaselined. Accordingly, the

NRC has re-examined the small entity fees,

and does not believe that a change to the

small entity fees is warranted for FY 2001.

The revision to the small entity fees in FY

2000 was the first change to the fees since

they were introduced in FY 1991 and FY

1992. The revised fees were based on on the

25 percent increase in average total fees

assessed to other materials licensees since

the small entity fees were first established

and changes that had occurred in the fee

structure for materials licensees over time.

The NRC does not consider the

approximately 13 percent decrease in the

average FY 2001 fees for other licensees to be

significant enough to warrant another change

to the small entity fees this year.

Unlike the annual fees assessed to other

licensees, the small entity fees are not

designed to recover the agency costs

associated with particular licensees. Rather,

they are designed to provide some fee relief

for qualifying small entity licensees while at

the same time recovering from those

licensees some of the agency’s costs for

activities that benefit them. The costs not

recovered from small entities must be

recovered from other licensees. The current

small entity fees of $500 and $2,300 provide

considerable relief to many small entities.

The NRC has declined to adopt the

suggestion of one commenter on the FY 2001

proposed fee rule that the NRC establish

additional tiers of annual fees for small

entities to further reduce the license fee

burden on smaller entities. Reductions in the

fees for small entities must be paid by other

NRC licensees in order to meet the

requirements of OBRA–90, as amended, that

NRC must recover most of its budget through

fees. While establishing more tiers would

provide additional fee relief for some small

entities, it would result in an increase in the

small entity subsidy other licensees pay. For

FY 2000, approximately 35 percent of the

small entities qualifying for reduced annual

fees qualified for the lower tier small entity

fee. The NRC believes that maintaining a

single lower tier annual fee for small entities

with relatively low gross annual receipts of

less than $350,000, for small governmental

jurisdictions with a population of less than

20,000, and for manufacturing entities that

have an average of less than 35 employees

continues to provide a further reduction of

the impact of the annual fees to a significant

number of small entities.

In the future the NRC plans to 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 CFO Act,

instead of each year that annual fees are

rebaselined as indicated in the FY 2000 fee

rule. The annual fees for materials users now

include the cost of amendments, renewals,

and inspections. However, at a maximum,

annual fees are rebaselined every three years,

but may be rebaselined earlier if warranted.

Therefore, reviewing the small entity fees

only when the annual fees are rebaselined

results in a variable schedule for the reexaminations and any potential changes to

the fees. Re-examining the small entity

annual fees every two years, on the same

schedule as the biennial review under the

CFO Act, provides a routine, predictable

schedule and allows licensees to anticipate

when potential changes to these fees might

occur. Therefore, the NRC plans to reexamine the small entity fees in FY 2003.

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

98 percent of the NRC budget and the

requirement to consider means of reducing

the impact of the fee on small entities. On the

basis of its regulatory flexibility analysis, the

NRC concludes that a maximum annual fee

of $2,300 for small entities and a lower-tier

small entity annual fee of $500 for small

businesses and not-for-profit organizations

with gross annual receipts of less than

$350,000, small governmental jurisdictions

with a population of less than 20,000, small

manufacturing entities that have less than 35

employees, and educational institutions that

are not State or publicly supported and have

less 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.

Therefore, the analysis and conclusions

established in the FY 2000 fee rule remain

valid for FY 2001.

Attachment 1 to Appendix A—Nuclear

Regulatory Commission Small, Entity

Compliance Guide, Fiscal Year 2001

Contents

Introduction

NRC Definition of Small Entity

NRC Small Entity Fees

Instructions for Completing NRC Form 526

Introduction

The Small Business Regulatory

Enforcement Fairness Act of 1996 (SBREFA)

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 SBREFA. Therefore, in

compliance with the law, this compliance

guide has been prepared to assist NRC

material licensees in complying with the FY

2001 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 2001 annual fees assessed under

10 CFR part 171. The NRC has established

two tiers of separate annual fees for those

materials licensees who qualify as small

entities under NRC’s size standards.

Licensees who meet NRC’s size standards

for a small entity 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. Effective with the

final FY 2001 fee rule, the NRC will phase

out sending NRC Form 526 with each

materials license annual fee invoice. This

form can be accessed on the NRC’s external

web site at http://www.nrc.gov. The form can

then be accessed by selecting ‘‘Planning &

Financial Management’’ and then selecting

‘‘NRC License Fee Program’’ and under

‘‘Forms’’ selecting NRC Form 526. Licensees

who cannot access the NRC’s external web

site may obtain NRC Form 526 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 fees@nrc.gov. 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 and Accounts Receivable

Branch, to 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

The NRC has defined a small entity for

purposes of compliance with its regulations

(10 CFR 2.810) as follows:

1. Small business—a for-profit concern that

provides a service or a concern not engaged

in manufacturing with average gross receipts

of $5 million or less over its last 3 completed

fiscal years;

2. Manufacturing industry—a

manufacturing concern with an average

number of 500 or fewer employees based

upon employment during each pay period for

the preceding 12 calendar months;

3. Small organization—a not-for-profit

organization which is independently owned

and operated and has annual gross receipts

of $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 less 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

To further assist licensees in determining

if they qualify as a small entity, we are

providing the following guidelines, which

are based on the Small Business

Administration regulations.

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

Federal Register / Vol. 66, No. 115 / Thursday, June 14, 2001 / Rules and Regulations 32481

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 does not qualify as a small entity.

NRC Small Entity Fees

In 10 CFR 171.16 (c), the NRC has

established two tiers of small entity fees for

licensees that qualify under the NRC’s size

standards. The fees are as follows:

Maximum annual fee per licensed category

Small Business Not Engaged in Manufacturing and Small Not-For Profit Organizations (Gross Annual Receipts):

$350,000 to $5 million .................................................................................................................................................................. $2,300

Less than $350,000 ...................................................................................................................................................................... 500

Manufacturing entities that have an average of 500 employees or less:

35 to 500 employees .................................................................................................................................................................... 2,300

Less than 35 employees .............................................................................................................................................................. 500

Small Governmental Jurisdictions (Including publicly supported educational institutions) (Population):

20,000 to 50,000 .......................................................................................................................................................................... 2,300

Less than 20,000 .......................................................................................................................................................................... 500

Educational Institutions that are not State or Publicly Supported, and have 500 Employees or Less:

35 to 500 employees .................................................................................................................................................................... 2,300

Less than 35 employees .............................................................................................................................................................. 500

To pay a reduced annual fee, a licensee

must use NRC Form 526. Effective with the

final FY 2001 fee rule, the NRC is phasing

out mailing NRC Form 526 with each annual

fee invoice issued to materials licensees.

Instead, licensees can access this form on the

NRC’s external web site at http://

www.nrc.gov. The form can then be accessed

by selecting ‘‘Planning & Financial

Management’’ and then selecting ‘‘NRC

License Fee Program’’ and under ‘‘Forms’’

selecting NRC Form 526. Those licensees that

qualify as a ‘‘small entity’’ under the NRC

size standards at 10 CFR 2.810 would be able

to complete the form in accordance with the

instructions provided, and submit the

completed form and the appropriate payment

to the address provided on the invoice.

Licensees who cannot access the NRC’s

external web site may obtain NRC Form 526

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 invoice.

Alternatively, licensees may obtain the form

by calling the fee staff at 301–415–7544, or

by e-mailing us at fees@nrc.gov.

Instructions for Completing NRC Small

Entity Form 526

1. File a separate NRC Form 526 for each

annual fee invoice received.

2. Complete all items on NRC Form 526 as

follows:

a. The license number and invoice number

must be entered exactly as they appear on the

annual fee invoice.

b. The Standard Industrial Classification

(SIC) Code must be entered if known.

c. The licensee’s name and address must be

entered as they appear on the invoice. Name

and/or address changes for billing purposes

must be annotated on the invoice. Correcting

the name and/or address on NRC Form 526,

or on the invoice does not constitute a

request to amend the license. Any request to

amend a license is to be submitted to the

respective licensing staffs in the NRC

Regional or Headquarters Offices.

d. Check the appropriate size standard for

which the licensee qualifies as a small entity.

Check only one box. Note the following:

(1) A licensee who is a subsidiary of a large

entity does not qualify as a small entity.

(2) The size standards apply to the

licensee, including all parent companies and

affiliates—not the individual authorized

users listed in the license or the particular

segment of the organization that uses

licensed material.

(3) Gross annual receipts means all revenue

in whatever form received or accrued from

whatever sources—not solely receipts from

licensed activities. There are limited

exceptions as set forth at 13 CFR 121.104.

These are: The term receipts excludes net

capital gains or losses; taxes collected for and

remitted to a taxing authority if included in

gross or total income; proceeds from the

transactions between a concern and its

domestic or foreign affiliates (if also excluded

from gross or total income on a consolidated

return filed with the IRS); and amounts

collected for another entity by a travel agent,

real estate agent, advertising agent, or

conference management service provider.

(4) The owner of the entity, or an official

empowered to act on behalf of the entity,

must sign and date the small entity

certification.

The NRC sends invoices to its licensees for

the full annual fee, even though some entities

qualify for reduced fees as a small entity.

Licensees who qualify as a small entity and

file NRC Form 526, which certifies eligibility

for small entity fees, may pay the reduced

fee, which for a full year is either $2,300 or

$500 depending on the size of the entity, for

each fee category shown on the invoice.

Licensees granted a license during the first

six months of the fiscal year, and licensees

who file for termination or for a possession

only license and permanently cease licensed

activities during the first six months of the

fiscal year, pay only 50 percent of the annual

fee for that year. Such an invoice states the

‘‘Amount Billed Represents 50% Proration.’’

This means the amount due from a small

entity is not the prorated amount shown on

the invoice, but rather one-half of the

maximum annual fee shown on NRC Form

526 for the size standard under which the

licensee qualifies, resulting in a fee of either

$1150 or $250 for each fee category billed,

instead of the full small entity annual fee of

$2,300 or $500.

A new small entity form (NRC Form 526)

must be filed 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 a new Form

526 must be completed and returned in order

for the fee to be reduced to the small entity

fee amount. Licensees will not be issued 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 and Accounts

Receivable Branch at the address indicated

on the invoice.

If you have questions regarding the NRC’s

annual fees, please call the license fee staff

at 301–415–7554, e-mail the fee staff at

fees@nrc.gov, or write to the U.S. Nuclear

Regulatory Commission, Washington, DC

20555, 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. 01–14856 Filed 6–13–01; 8:45 am]

BILLING CODE 7590–01–P