14670 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

For the Nuclear Regulatory Commission.

Warren C. Lyon,

Senior Reactor Systems Engineer, Reactor

Systems Branch, Office of Nuclear Reactor

Regulation.

[FR Doc. 95–6735 Filed 3–17–95; 8:45 am]

BILLING CODE 7590–01–M

10 CFR Parts 170 and 171

RIN 3150–AF07

Revision of Fee Schedules; 100% Fee

Recovery, FY 1995

AGENCY: Nuclear Regulatory

Commission.

ACTION: Proposed rule.

SUMMARY: The Nuclear Regulatory

Commission (NRC) is proposing to

amend the licensing, inspection, and

annual fees charged to its applicants

and licensees. The proposed

amendments are necessary to

implement the Omnibus Budget

Reconciliation Act of 1990, which

mandates that the NRC recover

approximately 100 percent of its budget

authority in Fiscal Year (FY) 1995 less

amounts appropriated from the Nuclear

Waste Fund (NWF). The amount to be

recovered for FY 1995 is approximately

$503.6 million.

DATES: The comment period expires

April 19, 1995. Comments received after

this date will be considered if it is

practical to do so, but the NRC is able

to ensure only that comments received

on or before this date will be

considered. Because Public Law 101–

508 requires that NRC collect the FY

1995 fees by September 30, 1995,

requests for extensions of the comment

period will not be granted.

ADDRESSES: Submit written comments

to: Secretary, U.S. Nuclear Regulatory

Commission, Washington, DC 20555,

ATTN: Docketing and Service Branch.

Hand deliver comments to: 11555

Rockville Pike, Rockville, Maryland

20852, between 7:30 am and 4:15 pm

Federal workdays. (Telephone 301–415–

1678).

The agency workpapers that support

these proposed changes to 10 CFR Parts

170 and 171 may be examined at the

NRC Public Document Room at 2120 L

Street, NW. (Lower Level), Washington,

DC 20555.

FOR FURTHER INFORMATION CONTACT: C.

James Holloway, Jr., Office of the

Controller, U.S. Nuclear Regulatory

Commission, Washington, DC 20555,

Telephone 301–415–6213.

SUPPLEMENTARY INFORMATION:

I. Background.

II. Proposed Action.

III. Section-by-Section Analysis.

IV. Environmental Impact: Categorical

Exclusion.

V. Paperwork Reduction Act Statement.

VI. Regulatory Analysis.

VII. Regulatory Flexibility Analysis.

VIII. Backfit Analysis.

I. Background

Public Law 101–508, the Omnibus

Budget Reconciliation Act of 1990

(OBRA–90), enacted November 5, 1990,

requires that the NRC recover

approximately 100 percent of its budget

authority, less the amount appropriated

from the Department of Energy (DOE)

administered NWF, for FYs 1991

through 1995 by assessing fees. OBRA–

90 was amended in 1993 to extend the

NRC’s 100 percent fee recovery

requirement through 1998.

The NRC assesses two types of fees to

recover its budget authority. First,

license and inspection fees, established

in 10 CFR part 170 under the authority

of the Independent Offices

Appropriation Act (IOAA), 31 U.S.C.

9701, recover the NRC’s costs of

providing individually identifiable

services to specific applicants and

licensees. Examples of the services

provided by the NRC for which these

fees are assessed are the review of

applications for the issuance of new

licenses or approvals, and amendments

to or renewal of licenses or approvals.

Second, annual fees, established in 10

CFR part 171 under the authority of

OBRA–90, recover generic and other

regulatory costs not recovered through

10 CFR part 170 fees.

Subsequent to enactment of OBRA–

90, the NRC published seven final fee

rules after evaluation of public

comments. On July 10, 1991 (56 FR

31472), the NRC published a final rule

in the Federal Register that established

the Part 170 professional hourly rate

and the materials licensing and

inspection fees, as well as the Part 171

annual fees, to be assessed to recover

approximately 100 percent of the FY

1991 budget. In addition to establishing

the FY 1991 fees, the final rule

established the underlying basis and

methodology for determining both the

10 CFR part 170 hourly rate and fees

and the 10 CFR part 171 annual fees.

The FY 1991 rule was challenged in

Federal court by several parties. The

U.S. Court of Appeals for the District of

Columbia Circuit rendered its decision

on those challenges on March 16, 1993,

in Allied-Signal v. NRC, remanding two

issues to the NRC for further

consideration (988 F.2d 146 (D.C. Cir.

1993)). The court decision was also

extended to cover the FY 1992 fee rule

by court order dated April 30, 1993.

On April 17, 1992 (57 FR 13625), the

NRC published in the Federal Register

two limited changes to 10 CFR parts 170

and 171. The limited changes became

effective May 18, 1992. The limited

change to 10 CFR part 170 allowed the

NRC to bill quarterly for those license

fees that were previously billed every

six months. The limited change to 10

CFR part 171 lowered in some cases the

maximum annual fee of $1,800 assessed

a materials licensee who qualifies as a

small entity under the NRC’s size

standards. A lower tier small entity fee

of $400 per licensed category was

established for small business and nonprofit organizations with gross annual

receipts of less than $250,000 and small

governmental jurisdictions with a

population of less than 20,000.

On July 23, 1992 (57 FR 32691), July

20, 1993 (58 FR 38666), and July 20,

1994 (59 FR 36895), the NRC published

final rules in the Federal Register that

established the licensing, inspection,

and annual fees necessary for the NRC

to recover approximately 100 percent of

its budget authority for FY 1992, FY

1993, and FY 1994 respectively. The

basic methodology used in the FY 1992

and FY 1993 final rules was unchanged

from that used to calculate the 10 CFR

part 170 professional hourly rate, the

specific materials licensing and

inspection fees in 10 CFR Part 170, and

the 10 CFR Part 171 annual fees in the

final rule published July 10, 1991 (56 FR

31472). In FY 1994, the NRC directly

assigned additional effort to the reactor

and materials programs for the Office of

Investigations, the Office of

Enforcement, the Advisory Committee

on Reactor Safeguards, and the Advisory

Committee on Nuclear Waste. Resources

for these activities had previously been

included in overhead, but were assigned

directly to the class of licensees that

they support. Because this direct

assignment resulted in a reduction of

overhead costs allocated to each FTE,

the cost per full time equivalent (FTE)

was about 3 percent less than it would

have been without the additional direct

assignment.

The methodology for assessing lowlevel waste (LLW) costs was changed in

FY 1993 in response to the AlliedSignal

v. NRC judicial decision mentioned

earlier. This change was explained in

detail in the FY 1993 final rule

published July 20, 1993 (58 FR 38669–

72). In brief, the NRC created two

groups—large waste generators and

small waste generators. Licensees

within each group are charged a

uniform fee. On May 19, 1994 (59 FR

26097), the NRC amended its fee

regulations in 10 CFR Part 171 to

establish revised FY 1991 and FY 1992
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14671

surcharges for NRC licensees based on

this revised method.

On March 17, 1994 (59 FR 12539), the

NRC reinstated the annual fee

exemption for nonprofit educational

institutions after notice and comment.

This exemption was also included in

the FY 1994 final rule. In response to

the March 16, 1993, judicial decision,

the exemption had been eliminated in

the final rule published by NRC on July

20, 1993 (58 FR 38666).

The American College of Nuclear

Physicians and the Society of Nuclear

Medicine filed a Petition for

Rulemaking which included a request

that the Commission exempt medical

licensees from fees for services provided

in nonprofit institutions. The

Commission denied that request on

March 17, 1994 (59 FR 12555).

II. Proposed Action

The NRC is proposing to amend its

licensing, inspection, and annual fees to

recover approximately 100 percent of its

FY 1995 budget authority, including the

budget authority for its Office of the

Inspector General, less the

appropriations received from the NWF.

For FY 1995, the NRC’s budget authority

is $525.6 million of which

approximately $22.0 million has been

appropriated from the NWF. Therefore,

OBRA–90 requires that the NRC collect

approximately $503.6 million in FY

1995 through 10 CFR Part 170 licensing

and inspection fees and 10 CFR part 171

annual fees. This amount to be

recovered for FY 1995 is about $9.4

million less than the total amount to be

recovered for FY 1994 and $15.3 million

less when compared to the amount to be

recovered for FY 1993. The NRC

estimates that approximately $137.7

million will be recovered in FY 1995

from the fees assessed under 10 CFR

Part 170. The remaining $365.9 million

will be recovered through the 10 CFR

Part 171 annual fees established for FY

1995.

Recognizing that OBRA–90 may have

resulted in certain fees that were unfair

or inequitable, Congress in Section

2903(c), of the Energy Policy Act of

1992 (EPA–92), directed the NRC to

review its annual fee policy, solicit

public comment on the need for changes

to this policy, and recommend to the

Congress any changes to existing law

needed to prevent placing unfair

burdens on NRC licensees. The NRC

reviewed more than 500 public

comments submitted in response to the

request for comment published in the

Federal Register on April 19, 1993 (58

FR 21116), and sent its report to

Congress on February 23, 1994. A copy

of this report has been placed in the

Public Document Room. This report

concluded that modifications to existing

statutes governing NRC fees are

necessary to alleviate licensees’ major

concerns about fairness and equity and

to reduce the NRC administrative

burden resulting from assessing fees.

The report recommended enactment of

legislation that would reduce the

amount to be recovered from fees from

100 percent of the NRC budget to

approximately 90 percent of the budget

and eliminate the requirement that NRC

assess 10 CFR part 170 fees.

In view of the fact that legislation has

not been enacted to address licensees’

fairness and equity concerns and the

concern about the additional workload

generated by 100 percent fee recovery,

the Commission has reexamined its

existing fee policies to determine

whether they can be made more

equitable. This reexamination was

undertaken with the goal of addressing,

within the limitations of the existing

laws governing NRC fees, the concerns

identified in the report to Congress and

improving other features of the NRC fee

program. Based on this reexamination,

the NRC is proposing certain changes in

10 CFR part 170 and 171 to partially

alleviate the identified concerns and

improve the process of collecting NRC

fees.

These proposed changes are

summarized as follows and detailed in

the following sections.

1. Change the method for allocating

the budgeted costs that cause fairness

and equity concerns. Approximately

$56 million of NRC costs either do not

directly benefit NRC licensees or

provide benefits to non-NRC licensees.

Currently, using three different

methodologies, these costs have been

allocated to classes of licensees.

Approximately 50 percent of these costs

were paid by power reactors. Under the

proposed rule, these costs will instead

be treated similar to overhead and

distributed to each class of licensees

based on the percent of the budget for

that class. As a result, power reactors

will pay a greater percentage of these

costs.

2. Eliminate the materials selected

inspection fees (i.e., flat fees and others

with reasonable averages), hereinafter

referred to as ‘‘flat’’ inspection fees in 10

CFR 170.31 and include the inspection

costs with the annual materials fees in

10 CFR 171.16(d). These proposed

actions would streamline the license fee

process and provide more predictable

fees.

3. Change the methodology for

calculating the professional hourly rate

to better align the budgeted costs with

the major classes of licensees. Two

professional staff-hour rates are

proposed instead of a single rate.

4. Change the methodology for

calculating annual fees for reactors, fuel

facilities and uranium recovery

licensees to make annual fees more

closely reflect the cost of providing

regulatory services to the classes and

subclasses of licensees and to improve

efficiency.

5. Modify NRC small entity and

lower-tier size standards for annual fee

purposes.

As a result of the reduced budget

amount to be recovered for FY 1995 and

these proposed changes, the annual fees

for a large majority of the licensees

would be reduced. The following

provides illustrative examples of the

changes in the annual fees.

FY 1994

annual fee

Proposed FY

1995 annual

fee

Class of Licensees:

Power Reactors ................................................................................................................................................ $3,078,000 $2,967,000

Nonpower Reactors .......................................................................................................................................... 62,200 56,500

High Enriched Fuel Facility ............................................................................................................................... 3,231,770 2,569,000

Low Enriched Fuel Facility ............................................................................................................................... 1,484,770 1,261,000

UF6 Conversion ................................................................................................................................................ 1,179,770 639,200

Uranium Mills .................................................................................................................................................... 74,670 60,900

Typical Material Licenses:

Radiographers .................................................................................................................................................. 19,170 14,000

Well Loggers ..................................................................................................................................................... 12,870 8,100

Gauge Users ..................................................................................................................................................... 2,470 1,700

Broad Scope Medical ....................................................................................................................................... 32,570 23,400
14672 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

The NRC also notes that it plans to

increase the use of reimbursable

agreements to avoid including certain

costs that do not benefit NRC licensees

within the NRC budget. By doing this,

the budget will be reduced and the fees

lowered. The NRC plans to exclude

funds for training, travel, and technical

support to the Agreement States and for

review of Department of Energy (DOE)/

Department of Defense (DOD) defense

related projects from the NRC budget,

beginning in FY 1997. This support

would be provided to the Agreement

States and DOE/DOD through

reimbursable agreements, which would

eliminate the need to recover the cost

through fees assessed to NRC licensees.

For FY 1995, these costs will continue

to be recovered through fees. Because

this change affects the budget and does

not alter fee policies or methods, it falls

outside the scope of this proposed

rulemaking and the Commission is not

soliciting comments on this policy

change.

Although not a specific change in this

rule, to help stabilize fees, beginning in

FY 1996, the NRC proposes that the

annual fees be adjusted only by the

percent change in NRC’s total budget. A

base annual fee would be established in

FY 1995 using current methodology

modified by the changes in the final FY

1995 rule, and the percentage change

(plus or minus) in the NRC total FY

1995 budget would be applied to all

annual fees for the next four years (FY

1996–FY 1998 and FY 1999 if OBRA–

90 is extended) unless there is 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. The decision on

whether to establish a new baseline

would be made each year during budget

formulation. For example, if the total

NRC budget is reduced by 3 percent and

the number of licenses and the amount

estimated to be recovered under 10 CFR

part 170 remains constant in a given

fiscal year, then all annual fees would

be reduced by approximately 3 percent.

The NRC seeks comments on this

approach in this rulemaking.

The Commission notes that, if, based

on public comments, the Commission

decides not to pursue some or all of

these new proposed policies, then the

respective current fee policies would be

continued for FY 1995. Comments are

also requested on whether the NRC

should continue any or all of its current

fee policies in lieu of the policies it

proposes to change in this rule.

The NRC contemplates that any fees

to be collected as a result of this

proposed rule will be assessed on an

expedited basis to ensure collection of

the required fees by September 30, 1995,

as stipulated in OBRA–90. Therefore, as

in FYs 1991–1994 the fees, if adopted,

will become effective 30 days after

publication of the final rule in the

Federal Register. The NRC will send a

bill for the amount of the annual fee to

the licensee or certificate, registration,

or approval holder upon publication of

the final rule. Payment will be due on

the effective date of the FY 1995 rule.

The NRC will continue the proration

of annual fees, established in FY 1994,

in accordance with the provisions of

Section 171.17. The annual fees for both

reactor and material licensees are

prorated based on (1) the date

applications are filed during the FY to

terminate a license or obtain a

possession-only license (POL) and (2)

the date new licenses are issued during

the FY.

A. Amendments to 10 CFR Part 170:

Fees for Facilities, Materials, Import and

Export Licenses, and Other Regulatory

Services

The NRC proposes four amendments

to Part 170. These amendments do not

change the underlying basis for the

regulation—that fees be assessed to

applicants, persons, and licensees for

specific identifiable services rendered.

The proposed amendments also comply

with the guidance in the Conference

Committee Report on OBRA–90 that

fees assessed under the Independent

Offices Appropriation Act (IOAA)

recover the full cost to the NRC of

identifiable regulatory services each

applicant or licensee receives.

First, the NRC is proposing to amend

§ 170.11 of the Commission’s fee

regulations to conform them to section

161 w. of the Atomic Energy Act of

1954, as amended (AEA). That section

of the AEA currently allows the

Commission to charge part 170 fees to

power reactors operated by the

Tennessee Valley Authority or other

Federal government entities and to

uranium enrichment facilities operated

by the United States Enrichment

Corporation, as these reactors and

facilities are licensed or certified by the

NRC. In all other cases, the NRC is

prevented from charging Part 170 fees to

Federal agencies for services rendered,

due to a prohibition on such charges

contained in the Independent Offices

Appropriation Act, 31 U.S.C. 9701.

Second, the NRC is proposing to

revise the current method of calculating

the 10 CFR Part 170 professional hourly

rate. Currently, there is one professional

hourly rate established in § 170.20,

which is used to determine the fees

assessed by the NRC. This professional

hourly rate was $133 per hour for FY

1994. The NRC proposes to establish

two professional hourly rates for FY

1995, which will be used to determine

the Part 170 fees. The NRC proposes to

establish a rate of $123 per hour

($214,765 per direct FTE) for the reactor

program. This rate is applicable to those

licenses covered by 10 CFR part 170.21

of the fee regulations. A second rate of

$116 per hour ($203,096 per direct FTE)

is proposed for the nuclear materials

and nuclear waste program. This rate is

applicable to those licenses covered by

10 CFR Part 170.31 of the fee

regulations. These rates are based on the

FY 1995 direct FTEs and that portion of

the FY 1995 budget that does not

constitute direct program support

(contractual services costs) and is not

recovered through the appropriation

from the NWF.

The two rates would be based on cost

center concepts that are now being used

for NRC budgeting purposes. In

implementing cost center concepts, all

budgeted resources for each cost center

are assigned to that center for analysis

and license fee purposes to the extent

they can be separately distinguished.

These costs include all salaries and

benefits, contract support, and travel

that are required for each cost center

activity. Additionally, all resources for

the Advisory Committee on Reactor

Safeguards (ACRS), the Advisory

Committee on Nuclear Waste (ACNW),

the Office of Investigation (OI), the

Office of Enforcement (OE), and all

program direct resources for the Office

of the General Counsel (OGC) will be

assigned to cost centers. The NRC took

a first step in this direction in FY 1994

when it directly assigned additional

effort to the reactor and materials

programs for OI, OE, ACRS and ACNW.

Commenters supported this change in

FY 1994 indicating that such

assignment better defines the

beneficiaries of certain regulatory

activities and more equitably allocates

the fees for services provided (59 FR

36897; July 20, 1994). The cost center

concepts will be discussed more fully in

Section III—Section-by-Section

Analysis.

Third, the NRC proposes that the

current Part 170 licensing and

inspection fees in §§ 170.21 and 170.31

for applicants and licensees be revised

to reflect both the revised hourly rates

and the results of the review required by

the Chief Financial Officers (CFO) Act.

To comply with the requirements of the

CFO Act, the NRC has evaluated

historical professional staff hours used

to process a licensing action (new

license, renewal, and amendment) for

those materials licensees whose fees are
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14673

based on the average cost method (flat

fees).

Evaluation of the historical data

shows that the average number of

professional staff hours needed to

complete materials licensing actions

should be increased in some categories

and decreased in others to reflect the

costs incurred in completing the

licensing actions. Thus, the revised

average professional staff hours reflect

the changes in the NRC licensing review

program that have occurred since FY

1993. The proposed licensing fees are

based on the new average professional

staff hours needed to process the

licensing actions multiplied by the

proposed nuclear materials professional

hourly rate for FY 1995 of $116 per

hour. The data for the average number

of professional staff hours needed to

complete licensing actions were last

updated in FY 1993 (58 FR 38666; July

20, 1993). For new licenses and

amendments, the proposed licensing

fees for FY 1995 are reduced in

approximately 50 percent of the cases,

while the proposed fees for renewals

would increase in over 70 percent of the

cases.

Fourth, the NRC is proposing to

streamline the fee program and improve

the predictability of fees by eliminating

the materials ‘‘flat’’ inspection fees in

170.31 and including the cost of the

inspections in 10 CFR Part 171.

Eliminating the 10 CFR Part 170

materials ‘‘flat’’ fees would recognize

that the ‘‘regulatory service’’ to

licensees, referred to in OBRA–90,

comprises the total regulatory activities

that NRC determines are needed to

regulate a class of licensees. These

regulatory services include not only

inspections, but also research,

rulemaking, orders, enforcement

actions, responses to allegations,

incident investigations, and other

activities necessary to regulate classes of

licensees. This proposed action would

not result in any net fee increases for

affected licensees and would provide

those licensees with greater fee

predictability, a frequent request made

in licensees’ comments on past fee

rules. The proposed materials annual

fees, which include the 10 CFR Part 170

inspection fees, would become effective

for FY 1995, and those materials

licensees who paid a ‘‘flat’’ 10 CFR Part

170 inspection fee for inspections

conducted in FY 1995 would receive a

credit for those payments towards the

FY 1995 annual fee assessed under 10

CFR Part 171. Because there is no

annual fee for licensees operating under

reciprocity in non-Agreement States, the

reciprocity inspection fee has been

combined with the application fee.

In summary, the NRC is proposing to

(1) establish two 10 CFR Part 170 hourly

rates; (2) revise the licensing fees

assessed under 10 CFR Part 170 in order

to comply with the CFO Act’s

requirement that fees be revised to

reflect the cost of the agency of

providing the service; and (3) eliminate

the materials ‘‘flat’’ inspection fees in

§ 170.31 and include the costs of

inspections with the materials annual

fees in § 171.16(d), or with the

reciprocity application fee in fee

category § 170.31, Category 16.

Assessing Fees for Final Design

Approval (FDA) and Design

Certification (DC) Reviews

During FY 1994, the question was

raised by several standard design

vendors concerning the NRC’s policy on

assessment of 10 CFR part 170 licensing

fees beyond issuance of the FDA. The

Commission has examined this issue

and has decided to continue assessing

fees to vendors for its review costs

incurred following the issuance of the

FDA. This would include fees to recover

NRC costs for preparation of the Design

Control Document, review of comments

on a proposed certification rule, and

preparation of a final certification rule.

10 CFR Part 170 fees will not be

assessed to the vendor for costs incurred

for any contested hearing before the

Atomic Safety Licensing Board Panel

(ASLBP) during the design certification

review and rulemaking.

While the NRC understands the

impact of fees on its applicants and

licensees, it has concluded that 10 CFR

part 170 review fees should continue to

be assessed beyond the FDA issuance,

because the vendor, who applies for a

certification, is the principal beneficiary

of the certification. The fundamental

policy underlying 10 CFR part 170 fees,

which are based on the requirements of

the Independent Offices Appropriation

Act of 1952, as amended, is that the

principal beneficiary of a regulatory

service should bear the cost of providing

that service. Applicants for design

certifications will not be charged 10

CFR part 170 fees for any hearings held

before an ASLBP under 10 CFR 52.51(b),

which offers an opportunity for a

hearing on a proposed certification. It

has long been the policy of the NRC not

to charge part 170 fees for hearings

which are not mandated by law, and the

NRC has maintained this policy despite

its recent obligation to recover 100

percent of the budget through fees.

Thus, for example, the NRC does not

charge part 170 fees for power reactor

operating license, amendment, or

enforcement hearings. The costs of such

hearings are recovered through the

annual fees assessed to NRC licensees

under 10 CFR part 171.

The NRC bills all design certification

(DC) applicants for staff hours and

contractual expenses incurred by the

Office of Nuclear Reactor Regulation

(NRR) in support of design certification

and approval review activities as

stipulated in 10 CFR part 170. The

Office of Nuclear Regulatory Research

(RES) staff and contractual expenses

related to advanced reactor designs have

been billed under 10 CFR part 171 to

holders of operating reactor licenses.

Although NRR is responsible for these

advanced reactor reviews and licensing

determinations, certain activities

performed by RES can be essential

elements of these reviews. If, for

example, the review can be conducted

more efficiently by RES due to

experience of its staff, NRR would

request that RES perform the review and

provide the safety evaluation report

input. In conducting recent DC reviews,

NRR and RES have coordinated their

activities to enhance the effectiveness

and efficiency of the reviews. In specific

technical areas (e.g., evaluation of DC

applicant test programs), RES staff

expertise and contractual resources

provide direct support to NRR’s

licensing review. As such, some RES

activities involve direct review of

advanced reactor designs and provide

input to the safety and licensing

conclusions for design certification. The

NRC believes that some adjustments to

the fee policy are necessary to properly

assess the applicant fees for design

certification review activities performed

by RES. Beginning with the effective

date of the FY 1995 fee rule, the NRC

plans to bill the applicants for RES’s

direct review and evaluation of the

standard design in support of NRC’s

FDA and design certification. Direct

review includes evaluation of the

applicant’s test programs, vendor codes

and topical reports, standard safety

analysis reports, and other supporting

design and analysis information. Under

this approach, fee assessment for RES

costs would be treated identically to

NRR charges for staff full-time

equivalent (FTE) employees or

contractors associated with the FDA/DC

review. Billing vendors for RES

activities that are in direct review of the

applicant’s design is consistent with the

major principle of 10 CFR part 170 of

assessing fees to the principal

beneficiary of the NRC regulatory

activity (i.e., vendor receipt of an FDA/

DC). The applicant would not be

assessed fees for confirmatory research

related to the designs. The budget for

confirmatory research would continue
14674 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

to be recovered from annual fees

assessed to operating power reactor

licensees under 10 CFR part 171.

B. Amendments to 10 CFR Part 171:

Annual Fees for Reactor Operating

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 NRC

The NRC proposes nine amendments

to 10 CFR part 171. First, the NRC is

proposing to modify its method for

recovering certain budgeted costs. The

report to Congress in response to EPA–

92 identified fairness and equity

concerns regarding the fees charged to

recover the cost of certain NRC

activities. Many licensees believed it

was unfair to charge them fees for

activities and policies undertaken by the

NRC that did not benefit them and were

not requested by them. The NRC is

proposing to modify its current policies

for allocating the budgeted costs for

these and other activities that cause

fairness and equity concerns, including

international activities, the nonprofit

educational exemption, the 10 CFR part

170 statutory exemption for Federal

agencies, the small entity annual fee

reduction resulting from implementing

the Regulatory Flexibility Act, certain

Site Decommissioning Management

Program (SDMP), generic

decommissioning and reclamation

activities, and regulatory activities that

support both NRC and Agreement State

licensees. It is proposed that the

budgeted costs of approximately $56

million for these activities be borne by

all NRC licensees because the activities

are necessary for the NRC to carry out

its responsibilities but, in most

instances, go beyond the regulation of

those licensees or applicants that pay

fees. Thus, the NRC proposes to allocate

the approximately $56 million in fees

for activities that raise fairness and

equity concerns to all licensees, based

on the budgeted dollars for each class of

licensees. By allocating the costs in this

way, the entire population of NRC

licensees would pay the costs. The

allocation would be based on the

amount of the budget directly

attributable to a class of licensees. This

would result in operating power

reactors paying approximately 89

percent of the costs of the activities in

question with the other classes of

licensees paying their respective share

of these costs as follows: 3 percent to

fuel facilities, 5 percent to materials,

and 1 percent to each of the spent fuel,

uranium recovery and transportation

classes of licensees.

Second, 10 CFR 171.13 would be

amended to provide that the NRC will

publish the proposed rule in the Federal

Register as early as is practicable but no

later than the third quarter of the fiscal

year. Currently, the regulations provide

for issuance of the proposed rule during

the first quarter of the fiscal year.

Third, NRC proposes to amend

§§ 171.15 and 171.16 to revise the

annual fees for FY 1995 to recover

approximately 100 percent of the FY

1995 budget authority, less fees

collected under 10 CFR Part 170 and

funds appropriated from the NWF.

Fourth, the annual fees for operating

power reactors in § 171.15(d) would be

revised to reflect a single uniform

annual fee. The NRC is proposing to

streamline the fee program by assessing

one uniform annual fee for all operating

power reactors. During the past four

years, the NRC has followed a somewhat

lengthy and time-consuming process in

determining power reactor annual fees.

The annual fees have been determined

in three ways. First, within the

operating power reactor class, a

distinction was made between the four

vendor groups, that is, Babcock &

Wilcox, Combustion Engineering,

General Electric, and Westinghouse.

Second, within each vendor group, a

distinction was made using the type of

containment, for example, General

Electric Mark I, II or III. Third, a

distinction was made based on the

location of the reactor, that is, whether

or not it is located east or west of the

Rocky Mountains. The NRC indicated in

the FY 1991 rule (56 FR 31479; July 10,

1991), and again in its request for public

comment on NRC fee policy (58 FR

21119; April 19, 1993) that it would

reexamine this approach with a view

toward simplifying the method for

determining annual fees and

streamlining the fee process without

causing an unfair burden. The Office of

the Inspector General (OIG) in its report

on license fees dated October 26, 1993,

indicated that the fee process is very

detailed and labor intensive and that

substantial effort is expended in

attempting to make the process

equitable and the costs reasonable. The

OIG report stated that the determination

of Part 171 fees could be simplified by

eliminating/streamlining much of the

detailed analyses performed as part of

the process. The NRC, for FY 1995,

calculated the reactor annual fees using

both the current method and the

proposed uniform method. For FY 1995,

the lowest annual fee using the current

method is about $20,000 less than the

proposed uniform fee of about $3

million for an operating reactor. The

NRC believes that this difference is

small enough, relative to the size of the

annual fee, to justify moving to a

uniform annual fee particularly in light

of administrative savings that will

follow. Therefore, in an effort to

streamline the fee program consistent

with the OIG report on fees and for ease

of administration, whereby a single

annual fee can be used for fee billing

purposes, the NRC is proposing to

establish a uniform annual fee for each

operating power reactor.

Fifth, as discussed earlier, the annual

fees for materials licenses in § 171.16(d)

would include the budgeted costs for

certain materials inspections which

were previously recovered under 10

CFR Part 170.31.

Sixth, the NRC is proposing to refine

the method for calculating the annual

fees for fuel facilities and uranium

recovery facilities. The NRC indicated

in its final FY 1994 fee rule that given

the questions raised by B&W Fuel

Company, General Atomics and other

fuel facilities, it would reexamine the

fuel facility subclass categorizations,

and include any restructuring resulting

from this reexamination in the FY 1995

proposed rule for notice and comment

(59 FR 36901; July 20, 1994). Having

conducted its own reexamination, the

NRC is therefore proposing revised

methodologies for determining annual

fees for both fuel facility and uranium

recovery licensees. These revised

methodologies have been used to

determine the proposed FY 1995 annual

fees. The use of the revised

methodologies results in the annual fee

more accurately reflecting the cost of

providing regulatory services to each

fuel facility and uranium recovery

licensee. The proposed methodologies

are explained in more detail in Section

III—Section-by-Section Analysis.

Seventh, the NRC is proposing to

modify the lower-tier size standard for

those licensees that qualify as a small

entity under the NRC’s proposed size

standards, published on November 30,

1994 (59 FR 61293). On April 7, 1994

(59 FR 16513), the Small Business

Administration (SBA) issued a final rule

changing its size standards. The SBA

adjusted its receipts-based size standard

levels to mitigate the effects of inflation

from 1984 to 1994. On November 30,

1994 (59 FR 61293), the NRC published

a proposed rule to amend the NRC’s size

standards. The NRC proposed to adjust

its receipts-based size standards from

$3.5 million to $5 million to

accommodate inflation and to conform

to the SBA final rule. The NRC also

proposed to eliminate the separate $1

million size standard for private

practice physicians and to apply the

receipts-based size standard of $5
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14675

million to this class of licensees. This

mirrors the revised SBA standard of $5

million for medical practitioners. The

NRC also proposed to establish a size

standard of 500 or fewer employees for

business concerns that are

manufacturing entities. This standard is

the most commonly used SBA employee

standard and would apply to the types

of manufacturing industries that hold an

NRC license. After evaluating the two

comments received, a final rule that

would revise the NRC’s size standards

as proposed has been developed and

sent to the SBA for review and approval.

The NRC expects to publish the final

rule before the final fee rule becomes

effective.

The NRC intends to use the revised

standards in the final FY 1995 fee rule.

The small entity fee categories in

§ 171.16(c) of this proposed fee rule

have been modified to reflect the

proposed changes in the NRC’s size

standards. The existing maximum small

entity annual fee of $1800 will be

continued for all small entities except

those defined as lower-tier small entities

in this rule. The existing lower-tier

small entity fee of $400 will be assessed

for those manufacturing industries and

educational institutions not State or

publicly supported with less than 35

employees, small governmental

jurisdictions with a population of less

than 20,000, and non-manufacturing

entities with gross receipts of less than

$350,000, a higher threshold than the

current lower-tier level of $250,000 in

gross receipts.

Eighth, the NRC is proposing to

modify Footnote 1 of 10 CFR 171.16(d)

to provide for a waiver of the FY 1995

annual fees 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, 1994,

and permanently ceased licensed

activities entirely by September 30,

1994. All other licensees and approval

holders who held a license or approval

on October 1, 1994, are subject to FY

1995 annual fees. This change is in

recognition of the fact that since the

final FY 1994 rule was published in July

1994, licensees have continued to file

requests for termination of their licenses

or certificates with the NRC. Other

licensees have either called or written to

the NRC since the FY 1994 final rule

became effective requesting further

clarification and information concerning

the annual fees assessed. The NRC is

responding to these requests as quickly

as possible. However, the NRC was

unable to respond and take action on all

of the requests before the end of the

fiscal year on September 30, 1994.

Similar situations existed after the FY

1991, FY 1992, and FY 1993 rules were

published, and in those cases, NRC

provided an exemption from the

requirement that the annual fee is

waived only when a license is

terminated before October 1 of each

fiscal year.

Ninth, the NRC is proposing to amend

§ 171.19 to credit the quarterly partial

annual fee payments and ‘‘flat’’

inspection fee payments for FY 1995

inspections already made by certain

licensees in FY 1995 either toward their

total annual fee to be assessed or to

make refunds, if necessary.

The amounts to be collected through

annual fees in the amendments to 10

CFR Part 171 are based on the two

proposed revised professional hourly

rates discussed previously in the

summary of the proposed changes to 10

CFR Part 170. The amendments to 10

CFR Part 171 do not change the

underlying basis for 10 CFR Part 171;

that is, charging a class of licensees for

NRC costs attributable to that class of

licensees. The changes are consistent

with the Congressional guidance in the

Conference Committee Report on

OBRA–90, which states that the

‘‘conferees contemplate that the NRC

will continue to allocate generic costs

that are attributable to a given class of

licensees to such class’’ and the

‘‘conferees intend that the NRC assess

the annual charge under the principle

that licensees who require the greatest

expenditures of the agency’s resources

should pay the greatest annual fee’’ (136

Cong. Rec. at H12692–93). For those

NRC costs not attributable to a class of

licensees, the proposed amendments to

10 CFR Part 171 follow the conferees’

guidance which states that ‘‘the

Commission should assess the charges

for these costs as broadly as practicable

in order to minimize the burden for

these costs on any licensee or class of

licensees . . .’’ (136 Cong. Rec. at

H12692–3).

C. FY 1995 Budgeted Costs

The FY 1995 budgeted costs, by major

activity, that will be recovered through

10 CFR Parts 170 and 171 fees are

shown in Table I.

TABLE I.—RECOVERY OF NRC’S FY

1995 BUDGET AUTHORITY

[Dollars in millions]

Recovery method

Estimated

amount

Nuclear Waste Fund ......................... $22.0

TABLE I.—RECOVERY OF NRC’S FY

1995 BUDGET AUTHORITY—Continued

[Dollars in millions]

Recovery method

Estimated

amount

Part 170 (license and inspection

fees) .............................................. 137.7

Other receipts ................................... .1

Part 171 (annual fees):

Power Reactors ............................ 265.3

Nonpower Reactors ...................... .3

Fuel Facilities ................................ 10.1

Spent Fuel Storage ....................... 1.7

Uranium Recovery ........................ 1.8

Transportation ............................... 4.2

Material Users 1 ............................. 24.91

Rare Earth Facilities ..................... .1

Subtotal Part 171 ................... 308.4

Costs remaining to be recovered not

identified above ............................. 57.4

Total ....................................... 525.6

1 Includes $5.8 million that will not be recovered from small materials licensees because

of the reduced small entity fees.

In addition to the $57.4 million

remaining to be recovered in Table I,

approximately $5.8 million must be

collected as a result of continuing the

$1,800 maximum fee for small entities

and the lower-tier small entity fee of

$400 for certain licensees. The

composition of the $63.2 million is as

follows:

TABLE II.—ACTIVITIES TO BE RECOVERED THROUGH ASSESSMENT OF A

SURCHARGE

Activities

Dollars

in millions

Federal Agency Exemption .............. $1.6

Nonprofit Educational Exemption ..... 6.1

International Activities ....................... 10.5

Small Entity Subsidy ......................... 5.8

Agreement State Oversight .............. 6.2

Regulatory Support to Agreement

States ............................................ 14.2

Site Decommissioning Management

Plan ............................................... 6.2

Generic Decommissioning and Reclamation ......................................... 5.6

Generic Low Level Waste (LLW) ..... 7.0

63.2

The NRC is proposing to continue the

existing policy for recovering the $7

million for generic LLW activities from

licensees that generate significant LLW.

The revised method of allocation,

described in detail in the FY 1993 final

rule (58 FR 38669; July 20, 1994)

allocates the LLW costs between two

groups: large generators (power reactors

and large fuel facilities) and small

generators (all other LLW-producing
14676 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

licensees). The remaining $56.2 million

would be distributed to virtually all

classes of licensees based on the

percentage of the total budget directly

allocated to each class. The resulting

allocations of the $63.2 million are as

follows:

$55.2 million to operating power

reactors;

$2.2 million to fuel facilities;

$.6 million to spent fuel storage

licensees;

$.6 million to transportation licensees;

$.6 million to uranium recovery

facilities; and

$4.0 million to other materials licensees.

III. Section-by-Section Analysis

The following analysis of those

sections that are affected under this

proposed rule provides additional

explanatory information. All references

are to Title 10, Chapter I, U.S. Code of

Federal Regulations.

Part 170

Section 170.11 Exemptions

This section would be amended to

conform the fee regulations to section

161 w. of the Atomic Energy Act of

1954, as amended (AEA). That section

of the AEA currently allows the

Commission to charge Part 170 fees to

power reactors operated by the

Tennessee Valley Authority or other

Federal government entities and to

uranium enrichment facilities operated

by the United States Enrichment

Corporation, as these reactors and

facilities are licensed or certified by the

NRC. In all other cases, the NRC is

prevented from charging Part 170 fees to

Federal agencies for services rendered,

due to a prohibition on such charges

contained in the Independent Offices

Appropriation Act, 31 U.S.C. 9701.

Section 170.20 Average Cost Per

Professional Staff Hour

This section would be amended to

establish two professional staff-hour

rates based on FY 1995 budgeted costs—

one for the reactor program and one for

the nuclear material and nuclear waste

program. Accordingly, the NRC reactor

professional staff-hour rate for FY 1995

for all fee categories that are based on

full cost under § 170.21 is $123 per

hour, or $214,765 per direct FTE. The

NRC nuclear material and nuclear waste

professional staff-hour rate for all

materials fee categories that are based

on full cost under § 170.31 is $116 per

hour, or $203,096 per direct FTE. The

rates are based on the FY 1995 direct

FTEs and NRC budgeted costs that are

not recovered through the appropriation

from the NWF. As noted earlier in this

proposed rule, the NRC has used cost

center concepts in reallocating certain

costs to the reactor and materials

programs in order to more closely align

the budgeted costs with specific classes

of licensees. The method used to

determine the two professional hourly

rates is as follows:

1. The direct program FTE levels are

identified for both the reactor program

and the nuclear material and waste

program.

2. 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 rate because

these support costs are charged directly

through the various categories of fees.

3. All other direct 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, Salary and Benefits plus

contracts for General and

Administrative Support are allocated to

each program based on that program’s

salary and benefits. This method results

in the following costs, to be included in

the hourly rates.

TABLE III.—FY 1995 BUDGET AUTHORITY TO BE INCLUDED IN HOURLY RATES

[Dollars in millions]

Salary and benefits Reactor program

Materials

program

Program ....................................................................................................................................................................... $148.5 $43.5

Allocated Agency Management & Support .................................................................................................................. $39.9 $11.7

Subtotal ............................................................................................................................................................. $188.4 $55.2

General and Administrative Support (G&A):

Program Travel and Other Support ...................................................................................................................... $13.3 $2.7

Allocated Agency Management and Support ....................................................................................................... $73.6 $21.6

Subtotal ............................................................................................................................................................. $86.9 $24.3

Less offsetting receipts ......................................................................................................................................... .1

Total Budget Included in Hourly Rate ............................................................................................................... $275.2 $79.5

Program Direct FTEs ................................................................................................................................................... 1,281.6 391.6

Rate per Direct FTE ..................................................................................................................................................... $214,765 $203,096

Professional Hourly Rate ............................................................................................................................................. $123 $116

Dividing the $275.2 million budget for

the reactor program by the number of

reactor program direct FTEs (1281.6)

results in a rate for the reactor program

of $214,765 per FTE for FY 1995.

Dividing the $79.5 million budget for

the nuclear materials and nuclear waste

program by the number of program

direct FTEs (391.6) results in a rate of

$203,096 per FTE for FY 1995. The

Direct FTE Hourly Rate for the reactor

program is $123 per hour (rounded to

the nearest whole dollar). This rate is

calculated by dividing the cost per

direct FTEs ($214,765) by the number of

productive hours in one year (1744

hours) as indicated in OMB Circular A–

76, ‘‘Performance of Commercial

Activities.’’ The Direct FTE Hourly Rate

for the materials program is $116 per

hour (rounded to the nearest whole

dollar). This rate is calculated by

dividing the cost per direct FTEs

($203,096) by the number of productive

hours in one year (1744 hours).

Section 170.21 Schedule of Fees for

Production and Utilization Facilities,

Review of Standard Reference Design

Approvals, Special Projects, Inspections

and Import and Export Licenses

The NRC is proposing to revise the

licensing and inspection fees in this

section, which are based on full-cost

recovery, to reflect the FY 1995

budgeted costs and to recover costs

incurred by the NRC in providing

licensing and inspection services to

identifiable recipients. The fees assessed
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14677

for services provided under the

schedule are based on the professional

hourly rate, as shown in § 170.20, for

the reactor program and any direct

program support (contractual services)

costs expended by the NRC. Any

professional hours expended on or after

the effective date of this rule will be

assessed at the FY 1995 hourly rate for

the reactor program as shown in

§ 170.20. Although the average amounts

of time to review import and export

licensing applications have not

changed, the fees in § 170.21, facility

Category K, have decreased from FY

1994 as a result of the decrease in the

hourly rate.

For those applications currently on

file and pending completion, footnote 2

of § 170.21 is revised to provide that the

professional hours expended up to the

effective date of the final rule will be

assessed at the professional rates in

effect at the time the service was

rendered. For topical report applications

currently on file which are still pending

completion of the review and for which

review costs have reached the

applicable fee ceiling established by the

July 2, 1990 rule, the costs incurred after

any applicable ceiling was reached

through August 8, 1991, will not be

billed to the applicant. Any professional

hours expended for the review of topical

report applications, amendments,

revisions, or supplements to a topical

report on or after August 9, 1991, are

assessed at the applicable rate

established by § 170.20.

Section 170.31 Schedule of Fees for

Materials Licenses and Other Regulatory

Services, Including Inspections and

Import and Export Licenses

The licensing and inspection fees in

this section, which are based on fullcost recovery, would be modified to

recover the FY 1995 costs incurred by

the NRC in providing licensing and

inspection services to identifiable

recipients. The fees assessed for services

provided under the schedule would be

based on both the professional hourly

rate as shown in § 170.20 for the

materials program and any direct

program support (contractual services)

costs expended by the NRC. Those

licensing fees, which are based on the

average time to review an application

(‘‘flat’’ fees), would be adjusted to reflect

both the revised average professional

staff hours needed to process a licensing

action (new license, renewal, and

amendment) and the decrease in the

professional hourly rate from $133 per

hour in FY 1994 to $116 per hour in FY

1995. The ‘‘flat’’ materials inspection

fees in § 170.31 would be eliminated

and combined with the materials annual

fees in § 171.16(d). Because there is no

annual fee for licensees operating under

reciprocity in non-Agreement States, the

application fee would include the costs

of inspections.

As previously indicated, the CFO Act

requires that the NRC conduct a review,

on a biennial basis, of fees and other

charges imposed by the agency for its

services and revise those charges to

reflect the costs incurred in providing

the services. Consistent with the CFO

Act requirement, the NRC has

completed its most recent review of

license and inspection fees assessed by

the agency. The review focused on the

flat fees that are charged to nuclear

materials users for licensing actions

(new licenses, renewals, and

amendments) and for inspections. The

full cost license and inspection fees

(e.g., for fuel facilities) and annual fees

were not included in this biennial

review because the hourly rate for full

cost fees and the annual fees are

reviewed and updated annually in order

to recover 100 percent of the NRC

budget authority.

To determine the licensing and

inspection flat fees for materials

licensees and applicants, the NRC uses

historical data to determine the average

number of professional hours required

to perform a licensing action or

inspection for each license category.

These average hours are multiplied by

the proposed materials program

professional hourly rate of $116 per

hour for FY 1995. Because the

professional hourly rate is updated

annually and the NRC is proposing to

eliminate materials ‘‘flat’’ inspection

fees, the biennial review examined only

the average number of hours per

licensing action with regard to the 10

CFR part 170 fees. The review indicated

that the NRC needed to modify the

average number of hours on which the

current licensing flat fees are based in

order to recover the cost of providing

licensing services. The average number

of hours required for licensing actions

was last reviewed and modified in 1993

(58 FR 38666; July 20, 1993). Thus the

revised hours used to determine the

proposed fees for FY 1995 reflect the

changes in the licensing program that

have occurred since that time; for

example, new initiatives underway for

certain types of licenses and

management guidance that reviewers

conduct more detailed reviews of

certain renewal applications based on

historical enforcement actions in order

to insure public health and safety have

been incorporated into the revised fees.

For new licenses and amendments, the

proposed licensing fees for FY 1995 are

reduced in approximately 50 percent of

the cases, while the proposed fees for

renewals have increased in over 70

percent of the cases.

The amounts of the licensing flat fees

were rounded by applying standard

rules of arithmetic so that the amounts

rounded would be de minimus and

convenient to the user. Fees that are

greater than $1,000 are rounded to the

nearest $100. Fees under $1,000 are

rounded to the nearest $10.

The proposed licensing flat fees are

applicable to fee categories 1.C and 1.D;

2.B and 2.C; 3.A through 3.P; 4.B

through 9.D, 10.B, 15A through 15E and

16. The fees would be assessed for

applications filed on or after the

effective date of the final rule. Although

the average amounts of time to review

import and export licensing

applications have not changed, the fees

in Category 15 have decreased from FY

1994 as a result of the decrease in the

hourly rate.

For those licensing, inspection, and

review fees assessed that are based on

full-cost recovery (cost for professional

staff hours plus any contractual

services), the proposed materials

program hourly rate of $116, as shown

in § 170.20, would apply to those

professional staff hours expended on or

after the effective date of the final rule.

Part 171

Section 171.13 Notice

The language in this section is revised

to reflect when the NRC could more

realistically expect to publish the

proposed fee rule. The NRC’s

experience indicates that the agency has

been unable to publish the proposed

rule during the first quarter of the fiscal

year as indicated in the current FY 1994

rule. Therefore, this section will be

revised to indicate that the NRC will

publish the proposed rule (notice) in the

Federal Register as early as is

practicable but no later than the third

quarter of the fiscal year.

Section 171.15 Annual Fee: Reactor

Operating Licenses

The annual fees in this section would

be revised to reflect FY 1995 budgeted

costs. Paragraphs (a), (b)(3), (c)(1), (c)(2),

(d), and (e) would be revised to comply

with the requirement of OBRA–90 to

recover approximately 100 percent of

the NRC budget for FY 1995. Table IV

shows the budgeted costs that have been

allocated directly to operating power

reactors as part of the base annual fee.

They have been expressed in terms of

the NRC’s FY 1995 programs and cost

centers. The resulting total base annual

fee amount for power reactors is shown,

as well as the one proposed uniform
14678 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

annual fee to be assessed to all operating

reactors.

The NRC is proposing to streamline

the fee program by assessing one

uniform annual fee for all operating

power reactors. During the past four

years, the NRC has followed a somewhat

lengthy and time consuming process in

calculating the amount of the power

reactor annual fees. The annual fees

were determined in three ways. First,

within the operating power reactor

class, a distinction was made between

the four vendor groups, that is, Babcock

& Wilcox, Combustion Engineering,

General Electric and Westinghouse.

Second, within each vendor group, a

distinction was made using the type of

containment, for example, General

Electric Mark I, II or III. Third, a

distinction was made based on the

location of the reactor: whether or not

it is located east or west of the Rocky

Mountains. The NRC indicated in the

FY 1991 rule (56 FR 31479; July 10,

1991) and again in its request for public

comment on NRC fee policy (58 FR

21119; April 19, 1993) that it would be

reexamining this approach with a view

toward simplifying the method for

determining annual fees without

causing an unfair burden. The NRC

Office of the Inspector General (OIG) in

its report dated October 26, 1993, on

license fees, described the fee process as

very detailed and labor intensive and

stated that substantial effort is expended

in attempting to make the process

equitable and the costs reasonable. The

OIG stated that the determination of the

Part 171 fees could be simplified by

eliminating and streamlining much of

the detailed analyses performed as part

of the process. This detailed breakdown

of the reactor annual fees was

implemented when there were

significant differences in the NRC

research funding for the various types of

reactors. This is no longer the case. The

NRC for FY 1995, calculated the reactor

annual fees using both the current

method (different fees for different types

of reactors) and the uniform method.

The difference between the lowest fee

under the current method and the

uniform fee is about $20,000, which is

less than 1 percent of the $3 million

proposed annual fee for an operating

power reactor. Because of this extremely

small difference, the NRC believes that

a single uniform annual fee should be

established for each operating power

reactor. Not only will this not cause an

unfair burden, but it will allow the NRC

to streamline the fee program and

simplify the fee process.

TABLE IV.—ALLOCATION OF NRC FY 1995 BUDGET TO POWER REACTORS’ BASE FEES1

Program total

Allocated to power reactors

Program

support

($,K)

Direct FTE

Program

support

($,K)

Direct FTE

Reactor Program

Cost Center: Reactor Regulation:

Inspections ............................................................................................................ $4,350 471.4 $4,350 471.4

Reactor Oversight ................................................................................................. 11,615 357.0 11,615 357.0

Reactor and Site Licensing ................................................................................... 1,660 26.3 1,660 26.3

Reactor Aging and Renewal ................................................................................. 19,973 54.7 19,973 54.7

Safety Assessment and Regulatory Development ............................................... 33,687 69.5 33,687 69.5

Independent Analysis of Operational Experience ................................................. 7,939 47.0 7,939 47.0

Technical Training and Qualification ..................................................................... 4,728 19.0 4,728 19.0

Investigations, Enforcement and Legal Advice ..................................................... 11 59.0 11 59.0

Independent Review ............................................................................................. 536 42.0 536 42.0

Cost Center Total .............................................................................................. ................... ................... $84,499 1,145.9

Cost Center: Standard Reactor Designs:

Design Certification ............................................................................................... 6,873 91.6 6,873 91.6

Safety Assessment ............................................................................................... 14,885 19.7 14,885 19.7

Legal Advice .......................................................................................................... ................... 3.0 ................... 3.0

Independent Review ............................................................................................. 86 10.0 86 10.0

Cost Center Total .............................................................................................. ................... ................... $21,844 124.3

Nuclear Materials and Nuclear Waste Program

Cost Center: Fuel Facilities:

Licensing and Inspection ...................................................................................... 1,304 28.5 ................... .1

Cost Center: LLW and Decommissioning:

Licensing and Inspection ...................................................................................... 50 2.6 ................... .9

Reactor Decommissioning .................................................................................... 100 6.7 100 6.7

Radiological Surveys ............................................................................................. 1,653 ................... 331 .......................

Cost Center Total .............................................................................................. ................... ................... $431 7.6

Management and Support Programs

Cost Center: Special Technical Programs:

Educational Grants ................................................................................................ 1,050 ................... 1,050 .......................

Small Business Innovation Research ................................................................... 1,844 ................... 1,844 .......................

Nuclear Materials Mgt. and Safeguards System .................................................. 1,165 1.0 850 .7

Cost Center Total .............................................................................................. ................... ................... $3,744 .7

Reactor Program Total ...................................................................................... ................... ................... $110,518 1,278.6
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14679

TABLE IV.—ALLOCATION OF NRC FY 1995 BUDGET TO POWER REACTORS’ BASE FEES1—Continued

Program total

Allocated to power reactors

Program

support

($,K)

Direct FTE

Program

support

($,K)

Direct FTE

Total Base Fee Amount Allocated to Power Reactors ..................................... ................... ................... ................... 2 $385.0

million

Less Estimated Part 170 Power Reactor Fees ................................................. ................... ................... ................... $119.8 million

Part 171 Amount for Operating Power Reactors .............................................. ................... ................... ................... $265.2 million

Part 171 Base Fee For Each Operating Reactor ............................................. ................... ................... ................... 265.2 million

................... ................... ................... 108 reactors =

$2,456,000

per reactor

1Base annual fees include all costs attributable to the operating power reactor class of licensees. The base fees do not include costs allocated

to power reactors for policy reasons. 2Amount is obtained by multiplying the direct FTE times the rate per FTE ($214,765) and adding the program support funds.

Paragraph (b)(3) would be revised to

change the fiscal year references from

FY 1994 to FY 1995.

Paragraphs (c)(1) and (c)(2) would be

amended to show the amount of the

budget allocated for policy reasons

(surcharge) to operating reactors for FY

1995. This surcharge is added to the

base annual fee for each operating

power reactor. The purpose of this

surcharge is to recover those NRC

budgeted costs that are not directly or

solely attributable to operating power

reactors but nevertheless must be

recovered to comply with the

requirements of OBRA–90.

The FY 1995 budgeted costs that are

to be recovered in the surcharge from all

licensees are as follows:

TABLE V

Category of costs

FY 1995

budgeted

costs ($ in

millions)

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

a. International cooperative safety program and international safeguards activities; ...................................................................... $10.5

b. Agreement State oversight ........................................................................................................................................................... 6.2

c. Low-level waste disposal generic activities; and ......................................................................................................................... 7.0

d. Site decommissioning management plan activities not recoverable under 10 CFR Part 170 .................................................... 5 6

2. Activities not assessed Part 170 licensing and inspection fees or Part 171 annual fees based existing law or Commission policy:

a. Fee Exemption of nonprofit educational institutions; ................................................................................................................... 6.1

b. Licensing and inspection activities associated with other Federal agencies; ............................................................................. 1.6

c. Costs not recovered from Part 171 for small entities .................................................................................................................. 5.8

3. Activities supporting NRC operating licensees and Others:

a. Regulatory support to Agreement States ..................................................................................................................................... $14.2

b. Decommissioning/Reclamation .................................................................................................................................................... 6.2

Total Budgeted Costs ................................................................................................................................................................... $63.2

Excluding low-level waste costs

totalling $7 million, the current policy

allocates the remaining $56.2 million

based on three different methods. First,

100 percent of costs for certain activities

(e.g., international activities and the

nonprofit educational institution

exemption) are allocated to operating

power reactors, based on the guidance

in the Conference Committee report

accompanying OBRA–90 which stated

that these types of costs may be

recovered from such licensees as the

Commission determines can fairly,

equitably and practicably contribute to

their payment. The second method

prorates the costs of some activities

(e.g., small entity subsidy and

Agreement State oversight) to all

licensees under the implicit assumption

that no one class of licensees should

have to bear the full cost. Under the

third method, 100 percent of the costs

of some activities (e.g., SDMP and

regulatory support to Agreement States)

are allocated to the class of licensees to

which the activities relate, independent

of whether the activities are needed for

current licensees/applicants or support

non-NRC licensees. In addition to being

based on three different principles, the

current policy creates significant annual

fee problems for classes of licensees

with a small or declining number of

licensees. For example, as more states

become Agreement States, the relatively

fixed costs for generic regulatory

activities (e.g., rulemaking, research,

evaluation of operational data and

policy development) that support both

NRC and Agreement State licensees

would be allocated to a smaller number

of materials licensees, causing the NRC

materials licensees’ annual fees to

increase substantially. For example, if

the four States who have expressed

interest in becoming Agreement States

do so within the next few years, then

the remaining NRC materials licensees’

annual fees would increase by about 30

percent from current levels.

For the above reasons, the NRC is

proposing to change the current policy

for allocating the costs for activities
14680 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

which have raised fairness and equity

concerns among many NRC licensees.

The proposed changes are based on the

premise that these costs should be borne

by all NRC licensees, because while the

activities are necessary for the NRC to

carry out its responsibilities, in most

instances, they go beyond the regulation

of those licensees or applicants that pay

fees. Thus, the NRC proposes to allocate

the costs in question to the entire

population of NRC licensees that pay

annual fees. The allocation would be

based on the amount of the budget

directly attributable to a class of

licensees and would result in, for

instance, operating power reactors

paying 89 percent of the cost of these

activities, compared to approximately

50 percent of these costs in the FY 1994

rule.

This proposed change is consistent

with the guidance in the Conference

Committee Report that accompanied

OBRA–90. First, by allocating these

costs to all licensees, this proposed

change is consistent with the

Conference Report guidance that: ‘‘The

Commission should assess the charge

for these activities as broadly as

practicable in order to minimize the

burden for these costs on any licensee

or class of licensees so as to establish as

fair and equitable a system as is

feasible.’’ Second, allocating a higher

percentage of these costs to operating

power reactors as opposed to other

classes of licensees is also consistent

with the Conference Report guidance

that: ‘‘These expenses may be recovered

from such licensees as the Commission,

in its discretion, determines can fairly,

equitable and practicably contribute to

their payment.’’ Allocating these costs

to the universe of NRC licenses would

minimize the impact of the declining

numbers of licenses in any specific

class, because the costs would be

allocated over the maximum number of

licensees. It would also put in place

both a policy that would help mitigate

future fee concerns associated with

declining number of licenses, and a

single methodology for allocating these

types of costs, something that has been

requested in comments submitted on

previous proposed fee rules.

The annual additional charge for each

operating power reactor is determined

as follows:

Generic LL

Other Acti

K

W Cost Allocated = .74 $6,972K = $5,159K

vities Allocated =.89 $56,229K = $50,044K

Total budgeted costs allocated

Total number of operating reactors

 per operating power reactor

×

×

= = $55, $511, 203

108

000

Based on the information in Tables IV

and V, each operating power reactor,

except Big Rock Point, would pay a base

annual fee of $2,456,000 and an

additional charge of $511,000 for a total

FY 1995 annual fee of $2,967,000.

With respect to Big Rock Point, a

smaller older reactor, the NRC proposes

to grant a similar partial exemption from

the FY 1995 annual fees similar to FY

1994 based on a request filed with the

NRC in accordance with § 171.11.

Paragraph (d) would be revised to

show, in summary form, the amount of

the total FY 1995 annual fee, including

the surcharge, to be assessed to each

operating power reactor.

Paragraph (e) would be revised to

show the amount of the FY 1995 annual

fee for nonpower (test and research)

reactors. In FY 1995, $339,000 in costs

are attributable to those commercial and

non-exempt Federal government

organizations that are licensed to

operate test and research reactors.

Applying these costs uniformly to those

nonpower reactors subject to fees results

in an annual fee of $56,500 per

operating license. The Energy Policy Act

established an exemption for certain

Federally-owned research reactors that

are used primarily for educational

training and academic research

purposes, where the design of the

reactor satisfies certain technical

specifications set forth in the legislation.

Consistent with this legislative

requirement, the NRC granted an

exemption from annual fees for FY 1992

and FY 1993 to the Veterans

Administration Medical Center in

Omaha, Nebraska, the U.S. Geological

Survey for its reactor in Denver,

Colorado, and the Armed Forces

Radiobiological Institute in Bethesda,

Maryland, for its research reactor. This

exemption was initially codified in the

July 20, 1993 (58 FR 38695) final fee

rule at § 171.11(a) and more recently in

the March 17, 1994 (59 FR 12543) final

rule at § 171.11(a)(2). The NRC amended

§ 171.11(a)(2) on July 20, 1994 (59 FR

36895) to exempt from annual fees the

research reactor owned by the Rhode

Island Atomic Energy Commission. The

NRC intends to continue to grant

exemptions from the annual fee to those

Federally-owned and State owned

research and test reactors who meet the

exemption criteria specified in § 171.11.

Section 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

Section 171.16(c) covers the fees

assessed for those licensees that can

qualify as small entities under NRC size

standards. On April 7, 1994 (59 FR

16513), the Small Business

Administration (SBA) issued a final rule

changing its size standards. The SBA

adjusted its receipts-based size standard

levels to mitigate the effects of inflation

from 1984 to 1994. On November 30,

1994 (59 FR 61293), the NRC published

a proposed rule to amend its size

standards. The comment period expired

December 30, 1994. The proposed size

standards are as follows:

(a) A small business is a for-profit

concern and is a—

(1) Concern that provides a service or

a concern not engaged in manufacturing

with average gross receipts of $5 million

or less over its last three completed

fiscal years; or

(2) Manufacturing concern with an

average number of 500 or fewer

employees based upon employment

during each pay period for the

preceding 12 calendar months.

(b) A small organization is a not-forprofit organization which is

independently owned and operated and

has annual gross receipts of $5 million

or less.

(c) A small governmental jurisdiction

is a government of a city, county, town,

township, village, school district, or

special district with a population of less

than 50,000.

(d) A small educational institution is

one that is—

(1) Supported by a qualifying small

governmental jurisdiction; or

(2) Not state or publicly supported

and has 500 or fewer employees.
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14681

(e) For purposes of this section, the

NRC shall use the Small Business

Administration definition of receipts to

include ‘‘all revenue in whatever form

received or accrued from whatever

source * * *’’ (13 CFR 402(b)(2)). A

licensee who is a subsidiary of a large

entity does not qualify as a small entity

for purposes of this section.

The NRC has evaluated the comments

received on the proposed rule, prepared

a draft final rule that will adopt these

size standards and submitted the final

rule for the approval of the

Administrator, Small Business

Administration, as required by statute.

Pending SBA approval, the NRC

intends to use these size standards in

the final FY 1995 fee rule. Therefore, the

small entity categories in § 171.16(c) of

this proposed fee rule have been

modified to reflect the proposed

changes in the NRC’s size standards.

Consistent with the establishment of an

employee size standard for

manufacturers, the NRC is also

proposing that a new maximum small

entity fee for manufacturing industries

with 35 to 500 employees be established

at $1,800 and a lower-tier small entity

fee of $400 be instituted for those

manufacturing industries and

educational institutions not State or

publicly supported with less than 35

employees. The lower-tier receiptsbased threshold of $250,000 has been

raised to $350,000 to reflect

approximately the same percentage

adjustment as that made by the SBA

when they adjusted the receipts-based

standard from $3.5 million to $5

million.

Section 171.16(d) would be revised to

reflect the FY 1995 budgeted costs for

materials licensees, including

Government agencies, licensed by the

NRC. These fees are necessary to recover

the FY 1995 generic and other

regulatory costs totalling $42.8 million

that apply to fuel facilities, uranium

recovery facilities, rare earth facilities,

spent fuel facilities, holders of

transportation certificates and QA

program approvals, and other materials

licensees, including holders of sealed

source and device registrations.

Tables VI and VII show the NRC

programs, cost centers, and resources

that are attributable to fuel facilities and

materials users, respectively. The costs

attributable to the uranium recovery

class of licensees are those associated

with uranium recovery licensing,

inspection, and generic activities. For

transportation, the costs are those

budgeted for transportation licensing,

inspection, and generic activities.

Similarly, the budgeted costs for spent

fuel storage are those for spent fuel

storage licensing, inspection and generic

activities.

TABLE VI.—ALLOCATION OF NRC FY 1995 BUDGET TO FUEL FACILITY BASE FEES 1

Total program element Allocated to fuel facility

Program

support $,K FTE Programsupport $,K FTE

Cost Center: Fuel Facilities:

Fuel Fabricators Oversight and Inspections ......................................................... $1,698 59.0 $1,486 56.1

Cost Center: LLW and Decommissioning:

Decommissioning .................................................................................................. 4,447 50.0 325 1.7

Cost Center: Other Nuclear Materials and Waste:

Independent Analysis of Operating Experience ................................................... 346 8.0 69 1.6

Technical Training and Qualification ..................................................................... 692 2.0 138 .4

Adjudicatory Reviews ............................................................................................ ................... 1.0 ................... .5

Investigations, Enforcement, Legal Advice ........................................................... 11 39.0 1 1.6

Cost Center: Special Technical Program:

Nuclear Materials Mgt. and Safeguards System .................................................. 1,165 1.0 47 .......................

Total ................................................................................................................... ................... ................... $2,066 61.9

Total Base Fee Amount Allocated to Fuel Facilities ......................................... ................... ................... ................... 2 $14.6 million

Less Part 170 Fuel Facility Fees ...................................................................... ................... ................... ................... 4.5 million

Part 171 Base Fees For Fuel Facilities ............................................................ ................... ................... ................... $10.1 million

1Base annual fee includes all costs attributable to the fuel facility class of licensees. The base fee does not include costs allocated to fuel facilities for policy reasons. 2Amount is obtained by multiplying the direct FTE times the rate per FTE ($203,096) and adding the program support funds.

TABLE VII.—ALLOCATION OF FY 1995 BUDGET TO MATERIAL USERS’ BASE FEES1

Total program element

Allocated to materials users

Program

support $,K FTE Programsupport $,K FTE

Nuclear Materials & Nuclear Waste Program

Cost Center: Materials Users:

Licensing/Inspection of Materials Users ............................................................... 2,436 113.0 721 82.3

Materials Licensee Performance .......................................................................... 700 1.8 189 .5

Materials Regulatory Standards ............................................................................ 1,494 12.8 403 3.5

Radiation Protection/Health Effects ...................................................................... 1,621 5.3 438 1.4

Cost Center Total .............................................................................................. ................... ................... $1,751 87.7

Cost Center: LLW and Decommissioning:

Licensing & Inspections ........................................................................................ 50 2.6 ................... .2

Decommissioning .................................................................................................. 214 32.8 69 3.5
14682 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

TABLE VII.—ALLOCATION OF FY 1995 BUDGET TO MATERIAL USERS’ BASE FEES1—Continued

Total program element

Allocated to materials users

Program

support $,K FTE Programsupport $,K FTE

Radiological Surveys ............................................................................................. 1,653 ................... 372 .......................

Cost Center Total .............................................................................................. ................... ................... 441 3.7

Cost Center: Other Nuclear Materials:

Analysis of Operational Experience ...................................................................... $346 8.0 184 1.7

Technical Training ................................................................................................. 692 2.0 498 1.4

Adjudicatory Reviews ............................................................................................ ................... 1.0 ................... .5

Investigations/Enforcement ................................................................................... 11 39.0 9 24.4

Event Evaluation ................................................................................................... ................... 16.0 ................... 4.4

Cost Center Total .............................................................................................. ................... ................... $691 32.4

Total Program .................................................................................................... ................... ................... $2,883 123.8

Management and Support Program

Cost Center: Special Technical Programs:

Nuclear Material Management and Safeguard Systems ...................................... 1,165 1.0 74 .1

Total All Programs ............................................................................................. ................... ................... $2,957 123.9

Base Amount Allocated to Materials Users ...................................................... ................... ................... ................... 2 $28.1 million

Less Part 170 Material Users Fees .................................................................. ................... ................... ................... 3.2 million

Part 171 Base Fees for Material Users ............................................................ ................... ................... ................... $24.9 million

1Base annual fee includes all costs attributable to the materials class of licensees. The base fee does not include costs allocated to materials

licensees for policy reasons. 2Amount is obtained by multiplying the direct FTE times the rate per FTE ($203,096) and adding the program support funds.

The allocation of the NRC’s $10.1

million in budgeted costs to the

individual fuel facilities is based on the

revised methodologies indicated earlier.

The NRC indicated in its final FY 1994

fee rule that given the questions raised

by B&W Fuel Company, General

Atomics and other fuel facilities it

would reexamine the fuel facility

subclass categorizations and that any

restructuring resulting from this

reexamination would be included in the

FY 1995 proposed rule for notice and

comment (59 FR 36901; July 20, 1994).

The NRC is therefore proposing a

revised methodology for determining

annual fees for fuel facilities. The

revised methodology has been used to

determine the proposed FY 1995 annual

fees. The objective of revising the

methodology is to reflect more precisely

agency generic costs attributable to fuel

facility licensees. This new

methodology results in the creation of

five fuel facility license fee categories.

Licenses are grouped into these

categories according to their license

(nuclear type, enrichment, form,

quantity, and use/associated activity)

and according to the level scope, depth

of coverage and rigor of generic

regulatory programmatic effort

applicable to each category. This

methodology can be applied to

determine fees for new licenses, current

licenses and for licensees in unique

license situations. In each case, the

existing license was used to determine

values for licensed nuclear material and

its use without regard for current or

planned licensee activities, which are at

the discretion of the licensee.

The methodology is amenable to

changes in the number of licenses,

licensed material/activities, and total

programmatic resources to be recovered

through annual fees. When a license is

modified, given that NRC recovers

approximately 100 percent of its generic

regulatory program costs through fee

recovery, this revised fuel facility fee

methodology may result in a change in

fee category and may have an effect on

the fees assessed to other licensees. For

example, if a fuel facility licensee

amended its license so as to avoid Part

171 fees for fuel facilities, the budget for

the safety component would be spread

only among those remaining licensees,

resulting in a higher annual fee for those

licensees.

Therefore, the methodology is applied

as follows. First, a fee category is

assigned based on certain criteria and

the licensed nuclear material and use/

associated activity. Although a licensee

may choose not to fully utilize a license,

the license is still used as the source for

determining authorized nuclear material

and use/associated activity. Next, the

category/license information is used to

determine where the license will fit into

the matrix. The matrix depicts the

categorization of licenses by authorized

material and use/activity and the

relative programmatic effort associated

with each category. The programmatic

effort (expressed as a value in the

matrix) reflects the safety or safeguards

significance associated with the

authorized nuclear material and use/

activity, and the commensurate generic

regulatory program (i.e., scope, depth

and rigor). The relative weighted factors

per facility for the various subclasses are

as follows:

Number

of facilities

Relative weight

per facility

Safety Safeguards

High Enriched Fuel 2 1.00 1.00

Low Enriched Fuel 4 .52 .34

Limited Operations

Facility ..... 1 .20 .11

UF6 Conversion .......... 1 .30 .............

Others ......... 3 .12 .09

The above weighted factors for the

safety and safeguards portion are

applied to the $10.1 million base fee. To

this base fee, the LLW and other

surcharges are added. The resulting

annual fee for each fuel facility,

including the additional charge

(surcharge) is shown below.
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14683

Type of facility Proposed annual fee

High Enriched Fuel:

Babcock & Wilcox ............. $2,569,000

Nuclear Fuel Services ....... 2,569,000

Low Enriched Fuel:

Combustion Engineering

(Hematite) ...................... 1,261,000

General Electric ................ 1,261,000

Siemens Nuclear Power ... 1,261,000

Westinghouse ................... 1,261,000

Limited Operation Facilities:

B&W Fuel Company ......... $501,700

UF6 Conversion:

AlliedSignal Corp. ............. $639,200

Other Fuel Facilities:

Babcock & Wilcox ............. $340,700

General Atomics ............... $340,700

General Electric ................ $340,700

Of the $2.3 million ($1.8 million in

base budget plus $0.5 million in

surcharge) attributable to the uranium

recovery class of licensees,

approximately $1.9 million will be

assessed to the Department of Energy

(DOE) to recover the costs associated

with DOE facilities under the Uranium

Mill Tailings Radiation Control Act of

1978 (UMTRCA). In September 1993,

DOE became a general licensee of the

NRC because post-reclamation closure

of the Spook, Wyoming site had been

achieved. There are two additional

UMTRCA sites now under the general

license: Burrell, Pennsylvania and

Loman, Idaho.

As indicated earlier, the NRC has

refined its methodology for establishing

Part 171 annual fees for uranium

recovery licenses. The methodology

identifies three categories of licenses: (1)

Conventional uranium mills; (2)

solution mining uranium mills; and (3)

mill tailings disposal facilities, each of

which benefits from the generic

uranium recovery program. In order to

determine the benefits to each uranium

recovery category, a matrix was

established to relate the category and

the level of benefit, by program element

and subelement. The two major program

elements of the generic uranium

recovery program are activities related

to facility operations and those related

to facility closure. Each of these

elements was further divided into three

subelements. The three major

subelements of generic activities related

to uranium facility operations are

activities related to: (1) The operation of

the mill; (2) the handling and disposal

of waste; and (3) prevention of

groundwater contamination. The three

major subelements of generic activities

related to uranium facility closure are

activities related to: (1)

Decommissioning of facilities and

cleanup of land; (2) reclamation and

closure of the tailings impoundment;

and (3) cleanup of contaminated

groundwater. Weighted factors were

assigned to each program element and

subelement.

The two existing categories of mills,

those that perform conventional milling

and those that perform solution mining

and milling, are continued. The existing

category for licenses whose purpose is

to dispose of Section 11e.(2) byproduct

material is also continued. The matrix

also contains a category for

conventional mills with Possession

Only Licenses that are also authorized

to dispose of more than 5,000 cubic

yards of byproduct material, as defined

in section 11e.(2) of the Atomic Energy

Act of 1954, as amended, from other

facilities. Currently, there are three mills

authorized for such waste disposal. The

applicability of the generic program in

each subelement to each uranium

recovery category was qualitatively

estimated as either significant, some,

minor, or none.

The resulting relative weighted factor

per facility for the various subclasses is

as follows:

No. of facilities

Relative

weight

per facility

Class I facilities ......... 3 1.00

Class II facilities ........ 6 .57

11e.(2) disposal ........ 1 .73

11e.(2) disposal incidental to existing

tailings sites ........... 3 .13

Using this refined approach, the

remaining $0.4 million not recovered

from DOE results in annual fees for each

class of licensees as follows:

2.A.(2) — Class I facilities: $60,900

2.A.(2) — Class II facilities: $34,400

2.A.(2) — Other facilities: $22,000

2.A.(3) — 11e(2) disposal: $44,700

2.A.(4) — 11e(2) disposal incidental to

existing tailings site: $7,900

Because rare earth facilities are now

budgeted for separately, a separate class

has been established for these licensees

in this proposed rule. For rare earth

facilities, the generic and other

regulatory costs of $66,000 have been

spread uniformly among licensees who

have a specific license for receipt and

processing of source material. This

results in an annual fee of $22,000 for

each facility.

For spent fuel storage licenses, the

costs of $2.3 million ($1.7 million in

base budget plus $0.6 million in

surcharge) have been spread uniformly

among those licensees who hold

specific or general licenses for receipt

and storage of spent fuel at an ISFSI.

This results in an annual fee of $291,500

for each facility. This represents a fee

decrease compared to FY 1994 because

there are now more licensees in this

class.

To equitably and fairly allocate the

$24.9 million directly attributable to the

approximately 6,200 diverse material

users and registrants plus the materials

share ($2.8 million) of the surcharge, the

NRC has continued to base the annual

fee 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

NRC to regulate each category. The fee

calculation also continues to consider

the inspection frequency, which is

indicative of the safety risk and

resulting regulatory costs associated

with the categories of licensees. In

summary, the annual fee for these

categories of licenses is developed as

follows:

Annual Fee = (Application Fee +

Average Inspection Cost/Inspection

Priority) x Constant + (Unique

Category Costs).

The constant is the multiple necessary

to recover $27.7 million and is 2.2 for

FY 1995. The unique costs are any

special costs that the NRC has budgeted

for a specific category of licensees. For

FY 1995, unique costs of approximately

$1.0 million were identified for the

medical improvement program which is

attributable to medical licensees.

For the first time, the NRC is

proposing to combine the ‘‘flat’’ material

inspection fees in 10 CFR part 170 with

the annual fees in 10 CFR Part 171. This

is being done to recognize that the

‘‘regulatory service’’ to licensees

referred to in OBRA–90, comprises the

total regulatory activities that NRC

determines are needed to regulate a

class of licensees. These regulatory

services include not only ‘‘flat’’ fee

inspections but also research,

rulemaking, orders, enforcement

actions, responses to allegations,

incident investigations and other

activities necessary to regulate classes of

licensees. In addition to being

consistent with the regulatory service

concept in OBRA–90, the NRC believes

that materials licensees’ ‘‘flat’’

inspection fees could be combined with

their annual fees without creating any

significant questions of fairness. This is

because the concept of the annual fee,

including the inspection fee, has, in

effect, already been implemented for

most materials licensees. First, materials
14684 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

licensees pay a ‘‘flat fee’’ per inspection

based on the average cost of an

inspection for their fee category, and

second, the routine inspection

frequency is identical for most licensees

in the same fee category. Furthermore,

past experience suggests that less than

10 percent of the materials inspections

for these licensees are nonroutine. Thus,

licensees in the same materials license

fee category pay essentially the same

average annual cost for inspections.

Therefore, combining inspection and

annual fees results in essentially the

same average cost per license over time.

Additionally, this approach will provide

materials licensees with simpler and

more predictable NRC fee charges as

there will be no additional fees paid for

periodic inspections. The proposed

materials annual fees would become

effective for FY 1995, and those

materials licensees who paid a ‘‘flat’’ 10

CFR part 170 inspection fee for

inspections conducted in FY 1995,

would receive a credit for those

payments towards their FY 1995 annual

fee assessed under 10 CFR part 171.

Those Agreement States licensees that

paid an inspection fee would not

receive a credit because they pay no

annual fee.

Materials annual fees for FY 1995

have decreased compared to the FY

1994 annual fees. There are two basic

reasons for this. First, the FY 1995

budgeted amount attributable to

materials licensees is about 35 percent

lower than the comparable FY 1994

amount, based on the reallocation of

certain materials budgeted costs to all

NRC licensees rather than to materials

licensees as discussed earlier. The

professional hourly rate for the

materials program has decreased from

$133 per hour to $116 per hour, due to

the use of cost center concepts in

allocating NRC budgeted costs. These

decreases are partially offset by a

decrease in the number of licensees to

be assessed annual fees in FY 1995

(from about 6,500 to about 6,200) and

the inclusion of the average annual

inspection costs with the annual fee. For

example, if an inspection is performed

every three years, one- third of the flat

inspection fee would be included in the

annual fee.

A materials licensee may pay a

reduced annual fee if the licensee

qualifies as a small entity under the

NRC’s size standards and certifies that

it is a small entity using NRC Form 526.

To recover the $4.7 million

attributable to the transportation class of

licensees, $1.2 will be assessed to the

Department of Energy (DOE) to cover all

of its transportation costs under

Category 18. The remaining

transportation costs for generic activities

($3.5 million) are allocated to holders of

approved QA plans. The annual fee for

approved QA plans is $77,800 for users

and fabricators and $1,000 for users

only.

The amount or range of the proposed

FY 1995 annual fees for all materials

licensees is summarized as follows:

MATERIALS LICENSES—ANNUAL FEE

RANGES

Category of license Annual fees

Part 70—High enriched

fuel.

$2,569,000

Part 70—Low enriched fuel 1,261,000

Part 40—UF6 conversion .. 639,200

Part 40—Uranium recovery 22,000 to 60,900

Part 30—Byproduct Material.490 to 23,400 1

Part 71—Transportation of

Radioactive Material.

1,000 to 77,800

Part 72—Independent

Storage of Spent Nuclear Fuel.

291,500

1Excludes the annual fee for a few military

‘‘master’’ materials licenses of broad-scope issued to Government agencies, which is

$417,700.

Section 171.16(e) would be amended

to establish the additional charge which

is included in the annual fees shown in

Section 171.16(d) of this final rule. The

Commission is continuing the approach

used in FY 1993 to assess the budgeted

low-level waste (LLW) costs to two

broad categories of licensees (large LLW

generators and small LLW generators)

based on historical disposal data. This

surcharge is included in the annual fees

for the applicable categories in Section

171.16(d). Although these NRC LLW

disposal regulatory activities are not

directly attributable to regulation of

NRC materials licensees, the costs

nevertheless must be recovered in order

to comply with the requirements of

OBRA–90. For FY 1995, the additional

charge recovers approximately 18

percent of the NRC budgeted costs of

$7.0 million relating to LLW disposal

generic activities from small generators,

which are comprised of materials

licensees that dispose of LLW. The

percentage distribution reflects the

deletion of costs for LLW disposed of by

Agreement State licensees. The FY 1995

budgeted costs related to the additional

charge for LLW and the amount of the

charge are calculated as follows:

Category of costs

FY 1995

budgeted

costs ($

in millions)

1. Activities not attributable to an

existing NRC licensee or class

of licensee, i.e., LLW disposal

generic activities ....................... $7.0

Of the $7.0 million in budgeted costs

shown above for LLW activities, 82

percent of the amount ($5.7 million) are

allocated to the 119 large waste

generators (reactors and fuel facilities)

included in 10 CFR Part 171. This

results in an additional charge of

$48,000 per facility. Thus, the LLW

charge will be $48,000 per HEU, LEU,

UF6 facility, and each of the other three

fuel facilities. The remaining $1.3

million is allocated to the materials

licensees in categories that generate

low-level waste (895 licensees) as

follows: $1,400 per materials license

except for those in Category 17. Those

licensees that generate a significant

amount of low-level waste for purposes

of the calculation of the $1,400

surcharge are in fee Categories 1.B, 1.D,

2.C, 3.A, 3.B, 3.C, 3.L, 3.M, 3.N, 4.A,

4.B, 4.C, 4.D, 5.B, 6.A, and 7.B. The

surcharge for licenses in fee Category

17, which also generate and/or dispose

of low-level waste, is $21,000.

On the basis of this calculation, a fuel

facility (a high-enriched fuel fabrication

licensee, for example) pays an annual

fee of $2,546,000 and an additional

charge of $48,000 for LLW activities and

small entity costs. A medical center

with a broad-scope program pays a base

annual fee of $22,000 and an additional

charge of $1,400, for a total FY 1995

annual fee of $23,400.

Footnote 1 of 10 CFR 171.16(d) would

be amended to provide for a waiver of

the annual fees 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 only licenses before October 1,

1994, and permanently ceased licensed

activities entirely by September 30,

1994. All other licensees and approval

holders who held a license or approval

on October 1, 1994 are subject to the FY

1995 annual fees.

Section 171.19 Payment

This section would be revised to give

credit for partial payments made by

certain licensees in FY 1995 toward

their FY 1995 annual fees. The NRC

anticipates that the first, second, and

third quarterly payments for FY 1995

will have been made by operating power

reactor licensees and some materials
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14685

licensees before the final rule is

effective. Therefore, the NRC would

credit payments received for those

quarterly annual fee assessments toward

the total annual fee to be assessed. The

NRC also expects that certain materials

licensees would have paid inspection

fees for inspections that were performed

in FY 1995, whereas the rule proposes

to include such costs in the annual fee.

The FY 1995 annual fee bills will reflect

a credit for these inspection fee

payments. The NRC would adjust the

fourth quarterly bill in order to recover

the full amount of the revised annual

fee, or to make refunds, as necessary. As

in FY 1994, payment of the annual fee

is due on the effective date of the rule

and interest accrues from the effective

date of the rule. However, interest will

be waived if payment is received within

30 days from the effective date of the

rule.

During the past four years many

licensees have indicated that although

they held a valid NRC license

authorizing the possession and use of

special nuclear, source, or byproduct

material, they were in fact either not

using the material to conduct operations

or had disposed of the material and no

longer needed the license. In responding

to licensees about this matter, the NRC

has stated that annual fees are assessed

based on whether a licensee holds a

valid NRC license that authorizes

possession and use of radioactive

material. Whether or not a licensee is

actually conducting operations using

the material is a matter of licensee

discretion. The NRC cannot control

whether a licensee elects to possess and

use radioactive material once it receives

a license from the NRC. Therefore, the

NRC reemphasizes that the annual fee

will be assessed based on whether a

licensee holds a valid NRC license that

authorizes possession and use of

radioactive material. To remove any

uncertainty, the NRC issued minor

clarifying amendments to 10 CFR

171.16, footnotes 1 and 7 on July 20,

1993 (58 FR 38700).

IV. Environmental Impact: Categorical

Exclusion

The NRC has determined that this

proposed rule is the type of action

described in categorical exclusion 10

CFR 51.22(c)(1). Therefore, neither an

environmental impact statement nor an

environmental impact assessment has

been prepared for the proposed

regulation.

V. Paperwork Reduction Act Statement

This proposed rule contains no

information collection requirements

and, therefore, is not subject to the

requirements of the Paperwork

Reduction Act of 1980 (44 U.S.C. 3501

et seq.).

VI. Regulatory Analysis

With respect to 10 CFR Part 170, this

proposed 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 its

decision of National Cable Television

Association, Inc. v. United States, 415

U.S. 36 (1974) and Federal Power

Commission v. New England Power

Company, 415 U.S. 345 (1974). In these

decisions, the Court held that the IOAA

authorizes an agency to charge fees for

special benefits rendered to identifiable

persons measured by the ‘‘value to the

recipient’’ of the agency service. The

meaning of the IOAA was further

clarified on December 16, 1976, by four

decisions of the U.S. Court of Appeals

for the District of Columbia, National

Cable Television Association v. Federal

Communications Commission, 554 F.2d

1094 (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). These decisions of

the Courts enabled the Commission to

develop fee guidelines that are still used

for cost recovery and fee development

purposes.

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). The 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

Public Law 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 amended in 1993 to

extend the 100 percent fee recovery

requirement for NRC through 1998. To

accomplish this statutory requirement,

the NRC, in accordance with § 171.13, is

publishing the proposed amount of the

FY 1995 annual fees for operating

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 and the Conference

Committee Report specifically state

that—

(1) The annual fees be based on the

Commission’s FY 1995 budget of $525.6

million less the amounts collected from

Part 170 fees and the 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.

When developing the annual fees for

operating power reactors, the NRC is

proposing a uniform annual fee rather

than an annual fee that considers the

various vendors, the types of

containment, and the location of the

operating power reactors. The NRC

believes the difference in fees of about

$20,000 is small enough relative to the

size of the $3 million annual fees, to

justify moving to a uniform annual fee

particularly in light of the

administrative savings that will follow.

The annual fees for fuel cycle licensees,

materials licensees, and holders of

certificates, registrations and approvals

and for licenses issued to Government

agencies take into account the type of

facility or approval and the classes of

the licensees.

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
14686 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

Power and Light Company v. United

States, 846 F.2d 765 (D.C. Cir. 1988),

cert. denied, 490 U.S. 1045 (1989).

10 CFR Parts 170 and 171, which

established fees based on the FY 1989

budget, were also legally challenged. As

a result of the Supreme Court decision

in Skinner v. Mid-American Pipeline

Co., 109 S. Ct. 1726 (1989), and the

denial of certiorari in Florida Power and

Light, all of the lawsuits were

withdrawn.

The NRC’s FY 1991 annual fee rule

was largely upheld by the D.C. Circuit

Court of Appeals in Allied Signal v.

NRC, 988 F.2d 146 (D.C. Cir. 1993).

VII. Regulatory Flexibility Analysis

The NRC is required by the Omnibus

Budget Reconciliation Act of 1990 to

recover approximately 100 percent of its

budget authority through the assessment

of user fees. OBRA–90 further requires

that the NRC establish a schedule of

charges that fairly and equitably

allocates the aggregate amount of these

charges among licensees.

This proposed rule establishes the

schedules of fees that are necessary to

implement the Congressional mandate

for FY 1995. The proposed rule results

in an decrease in the annual fees

charged to most licensees, and holders

of certificates, registrations, and

approvals, including those licensees

who are classified as small entities

under the Regulatory Flexibility Act.

The Regulatory Flexibility Analysis,

prepared in accordance with 5 U.S.C.

604, is included as Appendix A to this

proposed rule.

VIII. Backfit Analysis

The NRC has determined that the

backfit rule, 10 CFR 50.109, does not

apply to this proposed rule and that a

backfit analysis is not required for this

proposed rule. The backfit analysis is

not required because these proposed

amendments do not require the

modification of or additions to systems,

structures, components, or design of a

facility or the design approval or

manufacturing license for a facility or

the procedures or organization required

to design, construct or operate a facility.

List of Subjects

10 CFR Part 170

Exports, Imports, Intergovernmental

relations, Nuclear materials, Nuclear

power plants and reactors, Penalties.

10 CFR Part 171

Intergovernmental relations, Nuclear

materials, Nuclear power plants and

reactors, Penalties

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 proposing

to adopt the following amendments to

10 CFR parts 170 and 171.

PART 170—FEES FOR FACILITIES,

MATERIALS, IMPORT AND EXPORT

LICENSES, AND OTHER

REGULATORY SERVICES UNDER THE

ATOMIC ENERGY ACT OF 1954, AS

AMENDED

1. The authority citation for Part 170

continues to read as follows:

Authority: 31 U.S.C. 9701, 96 Stat. 1051;

sec. 301, Pub. L. 92–314, 86 Stat. 222 (42

U.S.C. 2201w); sec. 201, Pub. L. 93–4381, 88

Stat. 1242, as amended (42 U.S.C. 5841); sec.

205, Pub. L. 101–576, 104 Stat. 2842, (31

U.S.C. 901).

2. In § 170.11, paragraph (a)(5) is

revised to read as follows:

§ 170.11 Exemptions.

(a) * * *

(5) A construction permit, license,

certificate of compliance, or other

approval applied for by, or issued to, a

Government agency, except where the

Commission is authorized by statute to

charge such fees.

* * * * *

3. Section 170.20 is revised to read as

follows:

§ 170.20 Average Cost Per Professional

Staff-Hour.

Fees for permits, licenses,

amendments, renewals, special projects,

Part 55 requalification and replacement

examinations and tests, other required

reviews, approvals, and inspections

under §§ 170.21 and 170.31 that are

based upon the full costs for the review

or inspection will be calculated using

the following applicable professional

staff-hour rates:

Reactor Program ............... $123 per hour.

Nuclear Materials and

Nuclear Waste Program.

$116 per hour.

4. In Section 170.21, the introductory

text, Category J, Category K, and

footnotes 1 and 2 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, requalification and replacement

examinations for reactor operators, and

special projects and holders of

construction permits, licenses, and

other approvals shall pay fees for the

following categories of services.

SCHEDULE OF FACILITY FEES

[See footnotes at end of table]

Facility categories and type of fees Fees1 2

* * * * * * *

J. Special Projects: 4

Approvals and preapplication/licensing activities ...................................................................................................................... Full Cost.

Inspections 3 .............................................................................................................................................................................. Full Cost.

K. Import and export licenses:

Licenses for the import and export only of production and utilization facilities or the import and export only of components

for production and utilization facilities issued pursuant to 10 CFR part 110:

1. Application for import or export of reactors and other facilities and components which must be reviewed by the Commission and the Executive Branch, for example, actions under 10 CFR 110.40(b):

Application-new license ............................................................................................................................................................. $7,500

Amendment ............................................................................................................................................................................... $7,500

2. Application for import or export of reactor components and initial exports of other equipment requiring Executive

Branch review only, for example, those actions under 10 CFR 110.41(a)(1)–(8):

Application-new license ...................................................................................................................................................... $4,600

Amendment ........................................................................................................................................................................ $4,600
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14687

SCHEDULE OF FACILITY FEES—Continued

[See footnotes at end of table]

Facility categories and type of fees Fees1 2

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

Application-new license ...................................................................................................................................................... $2,900

Amendment ........................................................................................................................................................................ $2,900

4. Application for export or import of other facility components and equipment not requiring Commission 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 analysis or review:

Amendment $120

1Fees will not be charged for orders issued by the Commission pursuant to § 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 now or hereafter in

effect regardless of whether the approval is in the form of a license amendment, letter of approval, safety evaluation report, or other form. Fees

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

(generally full power is considered 100 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 June 20, 1984,

and July 2, 1990, rules but are still pending completion of the review, the cost incurred after any applicable ceiling was reached through January

29, 1989, will not be billed to the applicant. Any professional staff-hours expended above those ceilings on or after January 30, 1989, will be assessed at the applicable rates established by § 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. In no event will the total review costs be less than twice the hourly rate shown 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 followup of a licensed program. Inspections are performed throughout the full term of the license to ensure that the authorized activities are being conducted in accordance with the Atomic Energy Act of 1954, as amended, other legislation, Commission regulations or orders,

and the term 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:

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 or environmental issue, or to

assist 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 generic regulatory improvements or efforts.

5. Section 170.31 is revised to read as follows:

Section 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.

SCHEDULE OF MATERIALS FEES

[See footnotes at end of table]

Category of materials licenses and type of fees1 Fee 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:

License, Renewal, Amendment ......................................................................................................................................... Full Cost.

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

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

License, Renewal, Amendment ......................................................................................................................................... Full Cost.

Inspections ......................................................................................................................................................................... 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—New license .................................................................................................................................................. $530.

Renewal ............................................................................................................................................................................. $720.

Amendment ........................................................................................................................................................................ $290.
14688 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

SCHEDULE OF MATERIALS FEES—Continued

[See footnotes at end of table]

Category of materials licenses and type of fees1 Fee 2 3

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—New license .................................................................................................................................................. $580

Renewal ............................................................................................................................................................................. $650.

Amendment ........................................................................................................................................................................ $280.

E. Licenses for construction and operation of a uranium enrichment facility:

Application .......................................................................................................................................................................... $125,000.

License, Renewal, Amendment ......................................................................................................................................... Full Cost.

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

2. Source material:

A.(1) Licenses for possession and use of source material in recovery operations such as milling, in-situ leaching, heapleaching, refining uranium mill concentrates to uranium hexafluoride, ore buying stations, ion exchange facilities and in

processing of ores containing source material for extraction of metals other than uranium or thorium, including licenses

authorizing the possession of byproduct waste material (tailings) from source material recovery operations, as well as

licenses authorizing the possession and maintenance of a facility in a standby mode:

License, Renewal, Amendment ......................................................................................................................................... Full Cost.

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

(2) Licenses that authorize the receipt, from other persons, of byproduct material as defined in section 11e(2) of the

Atomic Energy Act for possession and disposal except those licenses subject to fees in Category 2.A.(1).

License, renewal, amendment ........................................................................................................................................... Full Cost.

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

(3) Licenses that authorize the receipt, from other persons, of byproduct material as defined in section 11e(2) of the

Atomic Energy Act for possession and disposal incidental to the disposal of the uranium waste tailings generated by

the licensee’s milling operations, except those licenses subject to the fees in Category 2.A.(1).

License, renewal, amendment ........................................................................................................................................... Full Cost.

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

Application—New license .................................................................................................................................................. $150.

Renewal ............................................................................................................................................................................. $170.

Amendment ........................................................................................................................................................................ $230.

C. All other source material licenses:

Application—New license .................................................................................................................................................. $2,700.

Renewal ............................................................................................................................................................................. $1,500.

Amendment ........................................................................................................................................................................ $400.

3. Byproduct material:

A. Licenses of broad scope for possession and use of byproduct material issued pursuant to parts 30 and 33 of this

chapter for processing or manufacturing of items containing byproduct material for commercial distribution:

Application—New license .................................................................................................................................................. $2,900.

Renewal ............................................................................................................................................................................. $1,900.

Amendment ........................................................................................................................................................................ $530.

B. Other licenses for possession and use of byproduct material issued pursuant to part 30 of this chapter for processing

or manufacturing of items containing byproduct material for commercial distribution:

Application—New license .................................................................................................................................................. $1,200.

Renewal ............................................................................................................................................................................. $2,400.

Amendment ........................................................................................................................................................................ $560.

C. Licenses issued pursuant to §§ 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:

Application—New license .................................................................................................................................................. $3,900.

Renewal ............................................................................................................................................................................. $3,100.

Amendment ........................................................................................................................................................................ $500.

D. Licenses and approvals issued pursuant to §§ 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:

Application—New license .................................................................................................................................................. $1,500.

Renewal ............................................................................................................................................................................. $480.

Amendment ........................................................................................................................................................................ $420.

E. Licenses for possession and use of byproduct material in sealed sources for irradiation of materials in which the

source is not removed from its shield (self-shielded units):

Application—New license .................................................................................................................................................. $1,200.

Renewal ............................................................................................................................................................................. $820.

Amendment ........................................................................................................................................................................ $350.

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—New license .................................................................................................................................................. $1,500.

Renewal ............................................................................................................................................................................. $1,100.

Amendment ........................................................................................................................................................................ $360.
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14689

SCHEDULE OF MATERIALS FEES—Continued

[See footnotes at end of table]

Category of materials licenses and type of fees1 Fee 2 3

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—New license .................................................................................................................................................. $5,800.

Renewal ............................................................................................................................................................................. $5,200.

Amendment ........................................................................................................................................................................ $750.

H. Licenses issued pursuant to subpart A of part 32 of this chapter to distribute items containing byproduct material that

require device review to persons exempt from the licensing requirements of part 30 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of part 30 of this chapter:

Application—New license .................................................................................................................................................. $2,300.

Renewal ............................................................................................................................................................................. $2,700.

Amendment ........................................................................................................................................................................ $990.

I. Licenses issued pursuant to subpart A of part 32 of this chapter to distribute items containing byproduct material or

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

Application—New license .................................................................................................................................................. $4,300.

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

Amendment ........................................................................................................................................................................ $840.

J. Licenses issued pursuant to subpart B of part 32 of this chapter to distribute items containing byproduct material that

require sealed source and/or device review to persons generally licensed under part 31 of this chapter, except specific

licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed

under part 31 of this chapter:

Application—New license .................................................................................................................................................. $1,500.

Renewal ............................................................................................................................................................................. $1,500.

Amendment ........................................................................................................................................................................ $280.

K. Licenses issued pursuant to subpart B of part 32 of this chapter to distribute items containing byproduct material or

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

under part 31 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for

distribution to persons generally licensed under part 31 of this chapter:

Application—New license .................................................................................................................................................. $1,300.

Renewal ............................................................................................................................................................................. $1,300.

Amendment ........................................................................................................................................................................ $300.

L. Licenses of broad scope for possession and use of byproduct material issued pursuant to parts 30 and 33 of this

chapter for research and development that do not authorize commercial distribution:

Application—New license .................................................................................................................................................. $4,100.

Renewal ............................................................................................................................................................................. $3,300.

Amendment ........................................................................................................................................................................ $640.

M. Other licenses for possession and use of byproduct material issued pursuant to part 30 of this chapter for research

and development that do not authorize commercial distribution:

Application—New license .................................................................................................................................................. $1,500.

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

Amendment ........................................................................................................................................................................ $590.

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, 4C, and 4D:

Application—New license .................................................................................................................................................. $1,800.

Renewal ............................................................................................................................................................................. $1,900.

Amendment ........................................................................................................................................................................ $570.

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

Application—New license .................................................................................................................................................. $3,700.

Renewal ............................................................................................................................................................................. $3,000.

Amendment ........................................................................................................................................................................ $700.

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

Application—New license .................................................................................................................................................. $530.

Renewal ............................................................................................................................................................................. $720.

Amendment ........................................................................................................................................................................ $290.

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:

License, renewal, amendment ........................................................................................................................................... Full Cost.

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

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

from other persons for the purpose of packaging or repackaging the material. The licensee will dispose of the material

by transfer to another person authorized to receive or dispose of the material:

Application—New license .................................................................................................................................................. $3,200.
14690 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

SCHEDULE OF MATERIALS FEES—Continued

[See footnotes at end of table]

Category of materials licenses and type of fees1 Fee 2 3

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

Amendment ........................................................................................................................................................................ $390.

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—New license .................................................................................................................................................. $1,700.

Renewal ............................................................................................................................................................................. $1,200.

Amendment ........................................................................................................................................................................ $280.

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—New license .................................................................................................................................................. $3,100.

Renewal ............................................................................................................................................................................. $4,000.

Amendment ........................................................................................................................................................................ $610.

B. Licenses for possession and use of byproduct material for field flooding tracer studies:

License, renewal, amendment ........................................................................................................................................... Full Cost

6. Nuclear laundries:

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

Application—New license .................................................................................................................................................. $4,900.

Renewal ............................................................................................................................................................................. $1,900.

Amendment ........................................................................................................................................................................ $770.

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

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

Application—New license .................................................................................................................................................. $2,700.

Renewal ............................................................................................................................................................................. $1,400.

Amendment ........................................................................................................................................................................ $450.

B. Licenses of broad scope issued to medical institutions or two or more physicians pursuant to parts 30, 33, 35, 40, and

70 of this chapter authorizing research and development, including human use of byproduct material, except licenses

for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices:

Application—New license .................................................................................................................................................. $2,900.

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

Amendment ........................................................................................................................................................................ $560.

C. Other licenses issued pursuant to parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source

material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear

material in sealed sources contained in teletherapy devices:

Application—New license .................................................................................................................................................. $1,300.

Renewal ............................................................................................................................................................................. $1,400.

Amendment ........................................................................................................................................................................ $430.

8. Civil defense:

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

activities:

Application—New license .................................................................................................................................................. $730.

Renewal ............................................................................................................................................................................. $630.

Amendment ........................................................................................................................................................................ $340.

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

Amendment—each device ................................................................................................................................................. $1,200.

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 ................................................................................................................................................... $1,600.

Amendment—each device ................................................................................................................................................. $580.

C. Safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, except

reactor fuel, for commercial distribution:

Application—each source .................................................................................................................................................. $700.

Amendment—each source ................................................................................................................................................ $230.

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 .................................................................................................................................................. $350.

Amendment—each source ................................................................................................................................................ $120.

10. Transportation of radioactive material:

A. Evaluation of casks, packages, and shipping containers:

Approval, Renewal, Amendment ....................................................................................................................................... Full Cost.

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

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

Application—Approval ........................................................................................................................................................ $320.

Renewal ............................................................................................................................................................................. $340.
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14691

SCHEDULE OF MATERIALS FEES—Continued

[See footnotes at end of table]

Category of materials licenses and type of fees1 Fee 2 3

Amendment ........................................................................................................................................................................ $240.

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

11. Review of standardized spent fuel facilities:

Approval, Renewal, Amendment ....................................................................................................................................... Full Cost.

Inspections ......................................................................................................................................................................... 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:

Approvals ........................................................................................................................................................................... Full Cost.

Amendments, revisions, and supplements ........................................................................................................................ Full Cost.

Reapproval ......................................................................................................................................................................... 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 pursuant to 10 CFR parts 30, 40, 70, and 72 of this chapter:

Approval, Renewal, Amendment .............................................................................................................................................. Full Cost.

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

15. Import and Export licenses:

Licenses issued pursuant to 10 CFR Part 110 of this chapter for the import and export only of special nuclear material,

source material, byproduct material, heavy water, tritium, or nuclear grade graphite.

A. Application for import or export of HEU and other materials which must be reviewed by the Commission and the Executive Branch, for example, those actions under 10 CFR 110.40(b).

Application—new license ................................................................................................................................................... $7,500.

Amendment ........................................................................................................................................................................ $7,500.

B. Application for import or export of special nuclear material, heavy water, nuclear grade graphite, tritium, and source

material, and initial exports of materials requiring Executive Branch review only, for example, those actions under 10

CFR 110.41(a)(2)-(8).

Application—new license ................................................................................................................................................... $4,600.

Amendment ........................................................................................................................................................................ $4,600.

C. Application for export of routine reloads of LEU reactor fuel and exports of source material requiring foreign government assurances only.

Application—new license ................................................................................................................................................... $2,900.

Amendment ........................................................................................................................................................................ $2,900.

D. Application for export or import of other materials not requiring Commission review, Executive Branch review or foreign government assurances.

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 analysis or review.

Amendment ........................................................................................................................................................................ $120.

16. Reciprocity:

Agreement State licensees who conduct activities in a non-Agreement State under the reciprocity provisions of 10 CFR

150.20.

Application (initial filing of Form 241) ................................................................................................................................ $1,100.

Renewal ............................................................................................................................................................................. N/A.

Revisions ............................................................................................................................................................................ $200.

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

for new licenses and approvals, issuance of new licenses and approvals, 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 fees—Applications for new materials licenses and approvals; applications to reinstate expired, terminated or inactive licenses

and approvals except those subject to fees assessed at full cost; and applications filed by Agreement State licensees to register under the general license provisions of 10 CFR 150.20, must be accompanied by the prescribed application fee for each category, except that:

(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 and (2) Applications for licenses under Category 1E must be accompanied by an application fee of $125,000.

(b) License/approval/review fees—Fees for applications for new licenses and approvals and for preapplication consultations and reviews subject to full cost fees (fee Categories 1A, 1B, 1E, 2A, 4A, 4D, 5B, 10A, 11, 12, 13A, and 14) are due upon notification by the Commission in accordance with § 170.12(b), (e), and (f).

(c) Renewal/reapproval fees—Applications for renewal of licenses and approvals must be accompanied by the prescribed renewal fee for each

category, except that fees for applications for renewal of licenses and approvals subject to full cost fees (fee Categories 1A, 1B, 1E, 2A, 4A, 4D,

5B, 10A, 11, 12, 13A, and 14) are due upon notification by the Commission in accordance with § 170.12(d).

(d) Amendment/Revision Fees— (1) Applications for amendments to licenses and approvals and revisions to reciprocity initial applications, except those subject to fees assessed at full costs, must be accompanied by the prescribed amendment/revision fee for each license/revision 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. For those licenses and approvals subject to full costs (fee Categories 1A, 1B, 1E, 2A, 4A, 4D, 5B, 10A, 11, 12,

13A, and 14), amendment fees are due upon notification by the Commission in accordance with § 170.12(c).

(2) An application for amendment to a materials license or approval that would place the license or approval in a higher fee category or add a

new fee category must be accompanied by the prescribed application fee for the new category.

(3) An application for amendment to a license or approval that would reduce the scope of a licensee’s program to a lower fee category must

be accompanied by the prescribed amendment fee for the lower fee category.
14692 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

(4) Applications to terminate licenses authorizing small materials programs, when no dismantling or decontamination procedure is required, are

not subject to fees.

(e) Inspection fees—Inspections resulting from investigations conducted by the Office of Investigations and nonroutine inspections that result

from third-party allegations are not subject to fees. The fees assessed at full cost will be determined based on the professional staff time required to conduct the inspection multiplied by the rate established under § 170.20 plus any applicable contractual support services costs incurred.

Inspection fees are due upon notification by the Commission in accordance with § 170.12(g). 2Fees will not be charged for orders issued by the Commission pursuant to 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 now

or hereafter in effect) regardless of whether the approval is in the form of a license amendment, letter of approval, safety evaluation report, or

other form. 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 and appropriate contractual support services expended. For those 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 applications currently on file for which review costs have reached an applicable fee ceiling established by the June 20,

1984, and July 2, 1990, rules, but are still pending completion of the review, the cost incurred after any applicable ceiling was reached through

January 29, 1989, will not be billed to the applicant. Any professional staff-hours expended above those ceilings on or after January 30, 1989,

will be assessed at the applicable rates established by § 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. The minimum total review cost is twice the hourly rate shown 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 in those instances in which an application deals only with the sealed sources authorized by the license. Applicants for

new licenses or renewal of existing licenses that cover both byproduct material and special nuclear material in sealed sources for use in gauging

devices will pay the appropriate application or renewal fee for fee Category 1C only. 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 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 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 generic regulatory improvements or efforts.

PART 171—ANNUAL FEES FOR

REACTOR OPERATING LICENSES

AND FUEL CYCLE LICENSES AND

MATERIALS LICENSES, INCLUDING

HOLDERS OF CERTIFICATES OF

COMPLIANCE, REGISTRATIONS, AND

QUALITY ASSURANCE PROGRAM

APPROVALS AND GOVERNMENT

AGENCIES LICENSED BY THE NRC

6. The authority citation for Part 171

continues to read as follows:

Authority: 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. 2106 as

amended by sec. 6101, Pub. L. 101–508, 104

Stat. 1388, (42 U.S.C. 2213); sec. 301, Pub. L.

92–314, 86 Stat. 222 (42 U.S.C. 2201(w)); sec.

201, 88 Stat. 1242, as amended (42 U.S.C.

5841); sec. 2903, Pub. L. 102–486, 106 Stat.

3125, (42 U.S.C. 2214 note).

7. Section 171.13 is revised to read as

follows:

§ 171.13 Notice.

The annual fees applicable to an

operating reactor and to a materials

licensee, including a Government

agency licensed by the NRC, subject to

this part and calculated in accordance

with §§ 171.15 and 171.16, will be

published as a notice in the Federal

Register as soon as is practicable but no

later than the third quarter of FY 1996

through 1998. The annual fees will

become due and payable to the NRC in

accordance with § 171.19 except as

provided in § 171.17. Quarterly

payments of the annual fees of $100,000

or more will continue during the fiscal

year and be based on the applicable

annual fees as shown in §§ 171.15 and

171.16 of the regulations until a notice

concerning the revised amount of the

fees for the fiscal year is published by

Commission.

8. In § 171.15, paragraphs (a), (b)(3),

(c)(1), (c)(2), (d), and (e) are revised to

read as follows:

§ 171.15 Annual fees: Reactor operating

licenses.

(a) Each person licensed to operate a

power, test, or research reactor shall pay

the annual fee for each unit for which

the person holds an operating license at

any time during the Federal FY in

which the fee is due, except for those

test and research reactors exempted in

§ 171.11(a)(1) and (a)(2).

(b) * * *

(3) 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 FY 1995 annual fee for each

operating power reactor subject to fees

under this section and which must be

collected before September 30, 1995, is

$2,456,000. The total annual fee to be

assessed to each operating power reactor

which would include the surcharge for

each reactor is shown in paragraph (d)

of this section.

(c)(1) An additional charge will be

established and added to the base

annual fee for each operating power

reactor. The amount of the surcharge is

the sum of the budgeted costs for each

FY for the following:

(i) Activities not attributable to an

existing NRC licensee or classes of

licensees; e.g., international cooperative

safety program and international

safeguards activities; support for the

Agreement State program; site

decommissioning management plan

(SDMP) activities and approximately 82

percent of the low-level waste disposal

generic activities, and

(ii) Activities not currently assessed

under 10 CFR Part 170 licensing and

inspection fees based on existing law or

Commission policy, e.g., reviews and

inspections conducted of nonprofit

educational institutions and 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.

(2) The FY 1995 surcharge to be

added to each operating power reactor

is $511,000. This amount is calculated

by dividing the total cost for these

activities ($55.2 million) by the number

of operating power reactors (108).

(d) The FY 1995 Part 171 annual fee

for each operating power reactor, which

includes the surcharge in paragraph

(c)(2) of this section, is $2,967,000.

Thereafter, annual fees will be assessed

in accordance with § 171.13.

(e) The annual fees for licensees

authorized to operate a nonpower (test

and research) reactor licensed under

part 50 of this chapter, except for those

reactors exempted from fees under

§ 171.11(a), are as follows:
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14693

Research reactor ............................. $56,500

Test reactor .................................... $56,500

* * * * *

9. In § 171.16, the introductory text of

paragraph (c) and paragraphs (c)(4), (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

the Commission with the proper

certification, the licensee may pay

reduced annual fees for FY 1995 as

follows:

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 ...... $1,800

Less than $350,000 .......... 400

Manufacturing entities that

have an average of 500

employees or less:

35 to 500 employees ........ 1,800

Less than 35 employees ... 400

Small Governmental Jurisdictions (Including publicly

supported educational institutions) (Population):

20,000 to 50,000 ............... 1,800

Less than 20,000 .............. 400

Maximum annual fee per licensed category

Educational Institutions that

are not State or Publicly

Supported, and have 500

Employees or Less:

35 to 500 employees ........ 1,800

Less than 35 employees ... 400

* * * * *

(4) For FY 1995, the maximum annual

fee (base annual fee plus surcharge) a

small entity is required to pay is $1,800

for each category applicable to the

license(s).

(d) The FY 1995 annual fees,

including the surcharges shown in

paragraph (e) of this section, for

materials licensees and holders of

certificates, registrations or approvals

subject to fees under this section are as

follows:

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

[See footnotes at end of table]

Category of materials licenses Annual

Fees1 2 3

1. Special nuclear material:

A.(1) Licenses for possession and use of U–235 or plutonium for fuel fabrication activities.

(a) Strategic Special Nuclear Material.

Babcock & Wilcox ................................................................................................................................. SNM–42 $2,569,000

Nuclear Fuel Services .......................................................................................................................... SNM–124 2,569,000

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

Combustion Engineering (Hematite) .................................................................................................... SNM–33 1,261,000

General Electric Company .................................................................................................................... SNM–1097 1,261,000

Siemens Nuclear Power ....................................................................................................................... SNM–1227 1,261,000

Westinghouse Electric Company .......................................................................................................... SNM–1107 1,261,000

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

cycle activities.

(a) Facilities with limited operations:

B&W Fuel Company ............................................................................................................................. SNM–1168 501,700

(b) All Others:

Babcock & Wilcox ................................................................................................................................. SNM–414 340,700

General Atomics ................................................................................................................................... SNM–696 340,700

General Electric .................................................................................................................................... SNM–960 340,700

B. Licenses for receipt and storage of spent fuel at an independent spent fuel storage installation (ISFSI) ............................. 291,500

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 ................................................................................................... 1,300

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 1.A.(2) ........................................................................................................................... 3,000

E. Licenses for the operation of a uranium enrichment facility .................................................................................................... 11 N/A

2. Source Material

A.(1) Licenses for possession and use of source material for refining uranium mill concentrates to uranium hexafluoride ...... 639,200

(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 ................................................................................................................................................................... 60,900

Class II facilities 4 .................................................................................................................................................................. 34,400

Other facilities ........................................................................................................................................................................ 22,000

(3) Licenses that authorize the receipt, from other persons, of byproduct material as defined in Section 11e.(2) of the Atomic Energy Act for possession and disposal, except those licenses subject to the fees in Category 2.A.(2) or Category

2.A.(4) ........................................................................................................................................................................................ 44,700

(4) Licenses that authorize the receipt, from other persons, of byproduct material as defined in Section 11e(2) of the Atomic

Energy Act for possession and disposal incidental to the disposal of the uranium waste tailings generated by the licensee’s milling operations, except those licenses subject to the fees in Category 2.A.(2) ........................................................... 7,900
14694 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

B. Licenses which authorize only the possession, use and/or installation of source material for shielding ........................ 490

C. All other source material licenses .................................................................................................................................... 8,700

3. Byproduct material:

A. Licenses of broad scope for possession and use of byproduct material issued pursuant to parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution ................................ 16,500

B. Other licenses for possession and use of byproduct material issued pursuant to Part 30 of this chapter for processing or

manufacturing of items containing byproduct material for commercial distribution ................................................................. 5,500

C. Licenses issued pursuant to §§ 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 pursuant to Part 40 of this chapter when included on the same license .......................................................................................... 11,200

D. Licenses and approvals issued pursuant to §§ 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 also includes the possession and use of source material for shielding authorized pursuant to

part 40 of this chapter when included on the same license ..................................................................................................... 4,400

E. Licenses for possession and use of byproduct material in sealed sources for irradiation of materials in which the source

is not removed from its shield (self-shielded units) .................................................................................................................. 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 .................................................................... 3,800

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 .................................................................... 19,600

H. Licenses issued pursuant to subpart A of part 32 of this chapter to distribute items containing byproduct material that require device review to persons exempt from the licensing requirements of part 30 of this chapter, except specific licenses

authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of part 30 of this chapter ................................................................................................................................................ 5,000

I. Licenses issued pursuant to subpart A of part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require device evaluation to persons exempt from the licensing requirements of

part 30 of this chapter, except 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 ......................................................... 8,800

J. Licenses issued pursuant to subpart B of part 32 of this chapter to distribute items containing byproduct material that require sealed source and/or device review to persons generally licensed under part 31 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under

part 31 of this chapter ............................................................................................................................................................... 3,800

K. Licenses issued pursuant to 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 ................................................................................. 3,200

L. Licenses of broad scope for possession and use of byproduct material issued pursuant to parts 30 and 33 of this chapter

for research and development that do not authorize commercial distribution ......................................................................... 12,200

M. Other licenses for possession and use of byproduct material issued pursuant to part 30 of this chapter for research and

development that do not authorize commercial distribution ..................................................................................................... 5,400

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, 4C, and

4D 6,000

O. Licenses for possession and use of byproduct material issued pursuant to Part 34 of this chapter for industrial radiography operations. This category also includes the possession and use of source material for shielding authorized pursuant

to Part 40 of this chapter when authorized on the same license ............................................................................................. 14,000

P. All other specific byproduct material licenses, except those in Categories 4A through 9D ................................................... 1,700

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 ............................................................... 5 101,600

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 ........................................................................... 14,400

C. Licenses specifically authorizing the receipt of prepackaged waste byproduct material, source material, or special nuclear material from other persons. The licensee will dispose of the material by transfer to another person authorized to

receive or dispose of the material ............................................................................................................................................ 7,600

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 ................................................................................. 8,100

B. Licenses for possession and use of byproduct material for field flooding tracer studies ....................................................... 13,100

6. Nuclear laundries:

A. Licenses for commercial collection and laundry of items contaminated with byproduct material, source material, or special nuclear material .................................................................................................................................................................. 14,600

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

A. Licenses issued pursuant to parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, or special 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 ....................................................... 10,200
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14695

B. Licenses of broad scope issued to medical institutions or two or more physicians pursuant to parts 30, 33, 35, 40, and

70 of this chapter authorizing research and development, including human use of byproduct material except licenses for

byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This

category also includes the possession and use of source material for shielding when authorized on the same license ...... 9 23,300

C. Other licenses issued pursuant to parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source

material, and/or special nuclear material except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source

material for shielding when authorized on the same license ................................................................................................... 9 4,700

8. Civil defense:

A. Licenses for possession and use of byproduct material, source material, or special nuclear material for civil defense activities ........................................................................................................................................................................................ 1,800

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 .................................................................. 7,200

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. ...................................................................................................................................................... 3,700

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. .................................................................................... 1,600

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. ................................................................................................................................................................... 780

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. Approvals issued of 10 CFR part 71 quality assurance programs.

Users and Fabricators ........................................................................................................................................................... 77,800

Users ..................................................................................................................................................................................... 1,000

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 .......................................................................................... 291,500

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

reclamation, or site restoration activities pursuant to 10 CFR parts 30, 40, 70, and 72 ................................................................ 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 ................................................................................ 417,700

18. Department of Energy:

A. Certificates of Compliance ....................................................................................................................................................... 10 1,200,000

B. Uranium Mill Tailing Radiation Control Act (UMTRCA) activities ............................................................................................ 1,937,000

1Annual fees will be assessed based on whether a licensee held, during the fiscal year, a valid license with the NRC authorizing possession

and use of radioactive material. However, the annual fee is waived for those materials licenses and holders of certificates, registrations, and approvals who either filed for termination of their licenses or approvals or filed for possession only/storage licenses prior to October 1, 1994 and

permanently ceased licensed activities entirely by September 30, 1994. Annual fees for licensees who filed for termination of a license or for a

POL 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 1.A.(1). are not

subject to the annual fees of category 1.C and 1.D for sealed sources authorized in the license and licensees paying annual fees under Category

2.A(2) are not subject to the annual fees for Category 4.D. 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, or 72 of this chapter. 3For FYs 1996 through 1998, 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. 5Two licenses have been issued by NRC for land disposal of special nuclear material. Once NRC issues a LLW disposal license for byproduct

and source material, the Commission will consider establishing an annual fee for this type of license. 6Standardized spent fuel facilities, part 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 the 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. 11 No annual fee has been established because there are currently no licensees in this particular fee category.

(e) A surcharge is added for each category for which a base annual fee is required. The surcharge consists of the following:

(1) To recover costs relating to LLW disposal generic activities, an additional charge of $48,000 has been added to fee Categories 1.A.(1),

1.A.(2) and 2.A.(1); an additional charge of $1,400 has been added to fee Categories 1.B., 1.D., 2.C., 3.A., 3.B., 3.C., 3.L., 3.M., 3.N., 4.A., 4.B.,

4.C., 4.D., 5.B., 6.A., and 7.B.; and an additional charge of $21,000 has been added to fee Category 17.

(2) To recover these budgeted costs that are not directly or solely attributable to materials licensees and holders of certificates, registrations or

approvals a surcharge has been added for the following:

(i) Activities not attributable to an existing NRC licensee or classes of licensees; e.g., international cooperative safety program and international

safeguards activities; support for the Agreement State program; site decommissioning management plan (SDMP) activities and
14696 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

(ii) Activities not currently assessed under 10 CFR part 170 licensing and inspection fees based on existing law or Commission policy, e.g., reviews and inspections conducted of nonprofit educational institutions and 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.

10. In Section 171.19, paragraphs (b)

and (c) are revised to read as follows:

§ 171.19 Payment.

* * * * *

(b) For FY 1995 through FY 1998, the

Commission will adjust the fourth

quarterly bill for operating power

reactors and certain materials licensees

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. The NRC

will also adjust the FY 1995 annual fee

bills to reflect a credit for any payments

received for those FY 1995 inspection

costs that are included in the FY 1995

annual fee. All other licensees, or

holders of a certificate, registration, or

approval of a QA program will be sent

a bill for the full amount of the annual

fee upon publication of the final rule.

Payment is due on the effective date of

the final rule and interest accrues from

the effective date of the final rule.

However, interest will be waived if

payment is received within 30 days

from the effective date of the final rule.

(c) For FYs 1995 through 1998, annual

fees in the amount of $100,000 or more

and described in the Federal Register

notice pursuant to § 171.13 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. Annual fees

of less than $100,000 must be paid once

a year as billed by the NRC.

Dated at Rockville, Maryland, this 10th day

of March, 1995.

For the Nuclear Regulatory Commission.

James M. Taylor,

Executive Director for Operations.

Appendix A to This Proposed 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 of 1980 (5

U.S.C. 601 et seq.) establishes as a principle

of regulatory practice that agencies endeavor

to fit regulatory and informational

requirements, consistent with applicable

statutes, to a scale commensurate with the

businesses, organizations, and government

jurisdictions to which they apply. To achieve

this principle, the Act requires that agencies

consider the impact of their actions on small

entities. If the 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 impacts on small entities and

the alternatives to minimize these impacts.

To assist in considering these impacts

under the Regulatory Flexibility Act, the NRC

adopted size standards for determining

which NRC licensees qualify as small entities

(50 FR 50241; December 9, 1985). These size

standards were clarified November 6, 1991

(56 FR 56672). On April 7, 1994 (59 FR

16513), the Small Business Administration

(SBA) issued a final rule changing its size

standards. The SBA adjusted its receiptsbased size standards levels to mitigate the

effects of inflation from 1984 to 1994. On

November 30, 1994 (59 FR 61293), the NRC

published a proposed rule to amend its size

standards. The NRC proposed to adjust its

receipts-based size standards from $3.5

million to $5 million to accommodate

inflation and to conform to the SBA rule. The

NRC also proposed to eliminate the separate

$1 million size standard for private practice

physicians and to apply a receipts-based size

standard of $5 million to this class of

licensees. This mirrors the revised SBA

standard of $5 million for medical

practitioners. The NRC also proposed to

establish a size standard of 500 or fewer

employees for business concerns that are

manufacturing entities. This standard is the

most commonly used SBA employee

standard and would be the standard

applicable to the types of manufacturing

industries that hold an NRC license. The

final rule that would revise the NRC’s size

standards has been sent to the SBA for

review and approval. The NRC intends to

adopt the revised standards in the final FY

1995 fee rule. The small entity fee categories

in § 171.16(c) of this proposed rule have been

modified to reflect the proposed changes in

the size standards. It is proposed that a new

maximum small entity fee for manufacturing

industries with 35 to 500 employees be

established at $1,800 and a lower-tier small

entity fee of $400 be established for those

manufacturing industries with less than 35

employees. The receipts-based lower-tier of

$250,000 has been raised to $350,000 to

maintain the lower-tier at the same relative

amount of the new small entity size standard

of $5 million. The NRC proposed size

standards are as follows:

(a) A small business is a for-profit concern

and is a—

(1) Concern that provides a service or a

concern not engaged in manufacturing with

average gross receipts of $5 million or less

over its last three completed fiscal years; or

(2) Manufacturing concern with an average

number of 500 or fewer employees based

upon employment during each pay period for

the preceding 12 calendar months.

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

organization which is independently owned

and operated and has annual gross receipts

of $5 million or less.

(c) A small governmental jurisdiction is a

government of a city, county, town,

township, village, school district, or special

district with a population of less than 50,000.

(d) A small educational institution is one

that is—

(1) Supported by a qualifying small

governmental jurisdiction; or

(2) Not state or publicly supported and has

500 or fewer employees.

(e) For purposes of this section, the NRC

shall use the Small Business Administration

definition of receipts to include ‘‘all revenues

in whatever form received or accrued from

whatever source * * *’’ (13 CFR 402(b)(2)).

A licensee who is a subsidiary of a large

entity does not qualify as a small entity for

purposes of this section.

Public Law 101–508, the Omnibus Budget

Reconciliation Act of 1990 (OBRA–90),

requires that the NRC recover approximately

100 percent of its budget authority, less

appropriations from the Nuclear Waste Fund,

for Fiscal Years (FY) 1991 through 1995 by

assessing license and annual fees. OBRA–90

was amended in 1993 to extend the 100

percent recovery requirement for NRC

through 1998. For FY 1991, the amount

collected was approximately $445 million;

for FY 1992, approximately $492.5 million;

for FY 1993 about $518.9 million; for FY

1994 about $499.6 million and the amount to

be collected in FY 1995 is approximately

$503.6 million.

To comply with OBRA–90, the

Commission amended its fee regulations in

10 CFR parts 170 and 171 in FY 1991 (56 FR

31472; July 10, 1991); in FY 1992 (57 FR

32691; July 23, 1992); in FY 1993 (58 FR

38666; July 20, 1993); and in FY 1994 (59 FR

36895; July 20, 1994) based on a careful

evaluation of over 1,000 comments. These

final rules established the methodology used

by NRC in identifying and determining the

fees assessed and collected in FY 1991, FY

1992, FY 1993 and FY 1994. The NRC has

used the same methodology established in

the FY 1991, FY 1992, FY 1993 and FY 1994

rulemakings to establish the proposed fees to

be assessed for FY 1995 with the following

exceptions: (1) the Commission has

reinstated the annual fee exemption for

nonprofit educational institutions; (2) in the

FY 1994 final rule, the NRC directly assigned

additional effort to the reactor and materials

programs for the Office of Investigations, the

Office of Enforcement, the Advisory

Committee on Reactor Safeguards, and the

Advisory Committee on Nuclear Waste; and

(3) for FY 1995, the NRC is proposing the use

of cost center concepts, now being used for

budgeting purposes, to develop the fees. The

NRC is also proposing: (1) To change the

method for allocating the budgeted costs

(about $56 million) that cause fairness and

equity concerns; (2) eliminate the materials

‘‘flat’’ inspection fees in 10 CFR 170.31 and

include the inspections with the annual fees

in 10 CFR 171.16(d); and (3) establish two

professional hourly rates to better align the

budgeted costs with the major classes of

licensees. For FY 1995, the methodology for

assessing low-level waste (LLW) costs was

changed in FY 1993 based on the U.S. Court

of Appeals decision dated March 16, 1993

(988 F.2d 146 (D.C. Cir. 1993)). The FY 1993
Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules 14697

LLW allocation method has been continued

in the FY 1995 final rule.

II. Impact on Small Entities

The comments received on the proposed

FY 1991, FY 1992, FY 1993, and FY 1994 fee

rule revisions and the small entity

certifications received in response to the final

FY 1991, FY 1992, FY 1993, and FY 1994 fee

rules indicate that NRC licensees qualifying

as small entities under the NRC’s size

standards are primarily those licensed under

the NRC’s materials program. Therefore, this

analysis will focus on the economic impact

of the annual fees on materials licensees.

The Commission’s fee regulations result in

substantial fees being charged to those

individuals, organizations, and companies

that are licensed under the NRC materials

program. Of these materials licensees, about

18 percent (approximately 1,300 licensees)

have requested small entity certification in

the past. In FY 1993, the NRC conducted a

survey of its materials licensees. The results

of this survey indicated that about 25 percent

of these licensees could qualify as small

entities under the current NRC size

standards.

The commenters on the FY 1991, FY 1992,

FY 1993, and FY 1994 proposed fee rules

indicated the following results if the

proposed annual fees were not modified:

Large firms would gain an unfair

competitive advantage over small entities.

One commenter noted that a small welllogging company (a ‘‘Mom and Pop’’ type of

operation) would find it difficult to absorb

the annual fee, while a large corporation

would find it easier. Another commenter

noted that the fee increase could be more

easily absorbed by a high-volume nuclear

medicine clinic. A gauge licensee noted that,

in the very competitive soils testing market,

the annual fees would put it at an extreme

disadvantage with its 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.

—Some firms would be forced to cancel their

licenses. One commenter, 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. Another commenter

noted that the rule would force the

company and many other 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.

—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.

—Some companies would have budget

problems. Many medical licensees

commented that, in these times of slashed

reimbursements, the proposed increase of

the existing fees and the introduction of

additional fees would significantly affect

their budgets. Another noted that, in view

of the cuts by Medicare and other third

party carriers, the fees would produce a

hardship and some facilities would

experience a great deal of difficulty in

meeting this additional burden.

Over the past four years, approximately

2,900 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.

The NRC continues to receive written and

oral comments from small materials

licensees. These comments indicate that the

$3.5 million threshold for small entities is

not representative of small businesses with

gross receipts in the thousands of dollars.

These commenters believe that the $1,800

maximum annual fee represents a relatively

high percentage of gross annual receipts for

these ‘‘Mom and Pop’’ type businesses.

Therefore, even the reduced annual fee could

have a significant impact on the ability of

these types of businesses to continue to

operate.

To alleviate the continuing significant

impact of the annual fees on a substantial

number of small entities, the NRC considered

alternatives, in accordance with the RFA.

These alternatives were evaluated in the FY

1991 rule (56 FR 31472; July 10, 1991) in the

FY 1992 rule (57 FR 32691; July 23, 1992),

in the FY 1993 rule (58 FR 38666; July 20,

1993) and in the FY 1994 rule (59 FR 36895;

July 20, 1994). The alternatives considered by

the NRC can be summarized as follows.

—Base fees on some measure of the amount

of radioactivity possessed by the licensee

(e.g., number of sources).

—Base fees on the frequency of use of the

licensed radioactive material (e.g., volume

of patients).

—Base fees on the NRC size standards for

small entities.

The NRC has reexamined the FY 1991, FY

1992, FY 1993, and FY 1994 evaluation of the

these alternatives. Based on that

reexamination, the NRC continues to support

the previous conclusion. That is, the NRC

continues to believe that establishment of a

maximum fee for small entities is the most

appropriate option to reduce the impact on

small entities.

The NRC established, and is continuing for

FY 1995, a maximum annual fee for small

entities. 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. For

FY 1995, the NRC will rely on the analysis

previously completed that established a

maximum annual fee for a small entity and

the amount of cost that must be received

from other NRC licensees as a result of

establishing the maximum annual fees. The

NRC continues to believe that license and

inspection fees, or any adjustments to these

fees during the past year, do not have a

significant impact on small entities. In

issuing this proposed rule for FY 1995, the

NRC concludes that the materials license fees

do not have a significant impact on a

substantial number of small entities and that

the maximum annual small entity fee of

$1,800 be continued.

By maintaining the maximum annual fee

for small entities at $1,800, the annual fee for

many small entities will be reduced while at

the same time materials licensees, including

small entities, pay for most of the FY 1995

costs ($27.1 million of the total $32.9

million) attributable to them. The costs not

recovered from small entities are allocated to

other materials licensees and to operating

power reactors. However, the amount that

must be recovered from other licensees as a

result of maintaining the maximum annual

fee is not expected to increase. Therefore, the

NRC is continuing, for FY 1995, the

maximum annual fee (base annual fee plus

surcharge) for certain small entities at $1,800

for each fee category covered by each license

issued to a small entity.

While reducing the impact on many small

entities, the Commission agrees that the

proposed maximum annual fee of $1,800 for

small entities, when added to the part 170

license fees, may continue to have a

significant impact on materials licensees

with annual gross receipts in the thousands

of dollars. Therefore, as in FY 1992, FY 1993,

and FY 1994, the NRC proposes to continue

the lower-tier small entity annual fee of $400

for small entities with relatively low gross

annual receipts. The lower-tier small entity

fee of $400 will also apply to manufacturing

concerns and educational institutions not

State or publicly supported with less than 35

employees. This lower-tier small entity fee

was first established in the final rule

published in the Federal Register on April

17, 1992 (57 FR 13625) and would now

include manufacturing companies with a

relatively small number of licensees.

In establishing the annual fee for lower-tier

small entities, the NRC continues to retain a

balance between the objectives of the RFA

and OBRA–90. This balance can be measured

by: (1) The amount of costs attributable to

small entities that is transferred to larger

entities (the small entity subsidy); (2) the

total annual fee small entities pay, relative to

this subsidy; and (3) how much the annual

fee is for a lower-tier small entity. Based on

this proposed rule, the amount of the small

entity subsidy is lower than last year. Thus,

no change is proposed.

III. Summary

The NRC has determined the annual fee

significantly impacts a substantial number of

small entities. A maximum fee for small

entities strikes a balance between the

requirement to collect 100 percent of the

NRC budget and the requirement to consider

means of reducing the impact of the

proposed fee on small entities. On the basis

of its regulatory flexibility analyses, the NRC

concludes that a proposed maximum annual

fee of $1,800 for small entities and a

proposed lower-tier small entity annual fee of

$400 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
14698 Federal Register / Vol. 60, No. 53 / Monday, March 20, 1995 / Proposed Rules

have less than 35 employees and educational

institutions that are not State or publicly

supported and have less than 35 employees

will reduce the impact on small entities. At

the same time, these reduced annual fees are

consistent with the objectives of OBRA–90.

Thus, the revised fees for small entities

maintain a balance between the objectives of

OBRA–90 and the RFA. The NRC has used

the methodology and procedures developed

for the FY 1991, FY 1992, FY 1993, and FY

1994 fee rules in this proposed rule except

those noted in Section II, in establishing the

FY 1995 fees. Therefore, the analysis and

conclusions established in the FY 1991, FY

1992, FY 1993, and FY 1994 rules remain

valid for this proposed rule for FY 1995.

[FR Doc. 95–6485 Filed 3–17–95; 8:45 am]

BILLING CODE 7590–01–P

DEPARTMENT OF TRANSPORTATION

Federal Aviation Administration

14 CFR Part 23

[Docket No. 123CE, Notice No. SC–23–ACE–

80]

Special Conditions; SIAI Marchetti

Model S211A Airplane

AGENCY: Federal Aviation

Administration (FAA), DOT.

ACTION: Notice of proposed special

conditions.

SUMMARY: This notice proposes special

conditions for the SIAI Marchetti

Aircraft Company Model S211A

airplanes. These airplanes will have

novel and unusual design features when

compared to the state of technology

envisaged in the applicable

airworthiness standards. These design

features include performance

characteristics for which the applicable

regulations do not contain adequate or

appropriate airworthiness standards.

This notice contains the additional

airworthiness standards that the

Administrator considers necessary to

establish a level of safety equivalent to

that provided by the current

airworthiness standards.

DATES: Comments must be received on

or before May 19, 1995.

ADDRESSES: Comments on this proposal

may be mailed in duplicate to: Federal

Aviation Administration, Office of the

Assistant Chief Counsel, ACE–7,

Attention: Rules Docket Clerk, Docket

No. 123CE, Room 1558, 601 East 12th

Street, Kansas City, Missouri 64106. All

comments must be marked: Docket No.

123CE. Comments may be inspected in

the Rules Docket weekdays, except

Federal holidays, between 7:30 and 4:00

p.m.

FOR FURTHER INFORMATION CONTACT:

Mike Downs, Aerospace Engineer,

Standards Office (ACE–110), Small

Airplane Directorate, Aircraft

Certification Service, Federal Aviation

Administration, 601 East 12th Street,

Kansas City, Missouri 64106; telephone

(816) 426–5688.

SUPPLEMENTARY INFORMATION:

Comments Invited

Interested persons are invited to

participate in the making of these

special conditions by submitting such

written data, views, or arguments as

they may desire. Communications

should identify the regulatory docket or

notice number and be submitted in

duplicate to the address specified above.

All communications received on or

before the closing date for comments

specified above will be considered by

the Administrator before taking further

rulemaking action on this proposal.

Commenters wishing the FAA to

acknowledge receipt of their comments

submitted in response to this notice

must include a self-addressed, stamped

postcard on which the following

statement is made: ‘‘Comments to

Docket No. 123CE.’’ The postcard will

be date stamped and returned to the

commenter. The proposals contained in

this notice may be changed in light of

the comments received. All comments

received will be available, both before

and after the closing date for comments,

in the Rules Docket for examination by

interested parties. A report summarizing

each substantive public contact with

FAA personnel concerned with this

rulemaking will be filed in the docket.

Background

On July 9, 1993, the SIAI Marchetti

Aircraft Co., VIA Indipendenza, 2,

21018 Sesto Calende (VA) [ITALY]

made application for acrobatic category

type certification of the model S211A

airplane. The S211A is a two-place

(tendem), all metal, mid-wing

cantilevered, retractable gear,

pressurized, single turbofan engine

airplane with a maximum weight of

6,394 pounds intended for specialized

military operations as a 14 CFR Part 23

airplane in the Acrobatic Category.

Type Certification Basis

Type certification basis of the SIAI

Marchetti Model S211A airplane is as

follows: Federal Aviation Regulations

(14 CFR Part 23), effective February 1,

1965, through amendment 23–44,

effective August 18, 1993; Special

Conditions in lieu of Part 23,

amendment 23–44, as stated in this

document; Equivalent Level of Safety

for §§ 23.562, 23.677(a), 23.777(f)(1),

23.807(b)(5), 23.841 (a) and (b)(6),

23.971 (a) and (b), 23.1182, 23.1557(d);

14 CFR Part 34, effective September 10,

1990; 14 CFR Part 36, effective

December 1, 1969, through amendment

effective on the date of type

certification; exemptions if any; and any

special conditions that may result from

this notice.

Discussion

SIAI Marchetti plans to incorporate

certain novel and unusual design

features into the airplane for which the

airworthiness regulations do not contain

adequate or appropriate safety

standards. These features include

certain performance characteristics

necessary for this type of airplane that

were not envisaged by the existing

regulations.

Special conditions may be issued and

amended, as necessary, as part of the

type certification basis if the

Administrator finds that the

airworthiness standards designated in

accordance with 14 CFR Part 21,

§ 21.17(a)(1) do not contain adequate or

appropriate safety standards because of

novel or unusual design features of an

airplane. Special conditions, as

appropriate, are issued in accordance

with 14 CFR Part 11, § 11.49 after public

notice, as required by §§ 11.28 and

11.29(b), effective October 14, 1980, and

become a part of the type certification

basis, as provided by 14 CFR Part 21,

§ 21.17(a)(2).

Flight

Current standards in 14 CFR Part 23

did not envisage this type of airplane

and the associated performance

capabilities. Based upon the knowledge

and experience gained during

certification and operation of previous

14 CFR Part 23 acrobatic jet airplanes

and other acrobatic airplanes, special

conditions that include selected Joint

Airworthiness Regulations (JAR) 23,

Issue 1, dated March 11, 1994, are

proposed instead of selected

performance requirements of subpart B

of part 23.

Operating Limitations and Information

Current standards in part 23 did not

envisage this type of airplane and the

associated performance.

To maintain a level of safety

consistent with other acrobatic category

and jet powered airplanes, special

conditions that include selected JAR 23,

Issue 1, dated March 11, 1994, are

proposed instead of the flight manual

requirements of subpart G of Part 23.

Conclusion

In view of the design features and

operational envelope discussed for the