Revision of Fee Schedules; Fee Recovery for FY 2002

Note: EPA no longer updates this information, but it may be useful as a reference or resource.

[Federal Register: June 24, 2002 (Volume 67, Number 121)]
[Rules and Regulations]
[Page 42611-42641]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jn02-19]

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NUCLEAR REGULATORY COMMISSION
10 CFR Parts 170 and 171
RIN 3150-AG95

AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending the
licensing, inspection, and annual fees charged to its applicants and
licensees. The amendments are necessary to implement the Omnibus Budget
Reconciliation Act of 1990 (OBRA-90), as amended, which requires that
the NRC recover approximately 96 percent of its budget authority in
fiscal year (FY) 2002, less the amounts appropriated from the Nuclear
Waste Fund (NWF) and the General Fund. The amount to be recovered for
FY 2002 is approximately $479.5 million.

EFFECTIVE DATE: August 23, 2002.

ADDRESSES: The comments received and the agency work papers that
support these final changes to 10 CFR parts 170 and 171 are available
electronically at the NRC's Public Electronic Reading Room on the
Internet at http://www.nrc.gov/reading-rm/adams.html. From this site,
the public can gain entry into the NRC's Agencywide Documents Access
and Management System (ADAMS), which provides text and image files of
NRC's public documents. For more information, contact the NRC Public
Document Room (PDR) Reference staff at 1-800-397-4209, or 301-415-4737,
or by e-mail to pdr@nrc.gov. If you do not have access to ADAMS or if
there are problems in accessing the documents located in ADAMS, contact
the PDR.
Comments received may also be viewed via the NRC's interactive
rulemaking Web site (http://ruleforum.llnl.gov). This site provides the
ability to upload comments as files (any format), if your Web browser
supports that function. For information about the interactive
rulemaking site, contact Ms. Carol Gallagher, 301-415-5905; e-mail
CAG@nrc.gov.
For a period of 90 days after the effective date of this final
rule, the work papers may also be examined at the NRC Public Document
Room, Room O-1F22, One White Flint North, 11555 Rockville Pike,
Rockville, MD 20852-2738.

FOR FURTHER INFORMATION CONTACT: Glenda Jackson; Telephone 301-415-6057
or Robert Carlson; Telephone 301-415-8165, Office of the Chief
Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC
20555-0001.

SUPPLEMENTARY INFORMATION:

I. Background
II. Response to Comments
III. Final Action
IV. Voluntary Consensus Standards
V. Environmental Impact: Categorical Exclusion
VI. Paperwork Reduction Act Statement
VII. Regulatory Analysis
VIII. Regulatory Flexibility Analysis
IX. Backfit Analysis
X. Small Business Regulatory Enforcement Fairness Act

I. Background

For FYs 1991 through 2000, OBRA-90, as amended, required that the
NRC recover approximately 100 percent of its budget authority, less the
amount appropriated from the U.S. Department of Energy (DOE)
administered NWF, by assessing fees. To address fairness and equity
concerns raised by the NRC related to charging NRC license holders for
agency expenses that do not provide a direct benefit to the licensee,
the FY 2001 Energy and Water Development Appropriations Act amended
OBRA-90 to decrease the NRC's fee recovery amount by 2 percent per year
beginning in FY 2001, until the fee recovery amount is 90 percent in FY
2005. As a result, the NRC is required to recover approximately 96
percent of its FY 2002 budget authority, less the amounts appropriated
from the NWF, through fees and other offsetting receipts. In addition,
$36.0 million has been appropriated from the General Fund for
activities related to homeland security. The FY 2002 Defense
Appropriations Act states that this $36.0 million shall be excluded
from license fee revenues. The total amount to be recovered in fees and
other offsetting receipts for FY 2002 is approximately $479.5 million.
The NRC assesses two types of fees to meet the requirements of
OBRA-90, as amended. First, license and inspection fees, established in
10 CFR part 170 under the authority of the Independent Offices
Appropriation Act of 1952 (IOAA), 31 U.S.C. 9701, recover the NRC's
costs of providing special benefits to identifiable applicants and
licensees. Examples of the services provided by the NRC for which these
fees are assessed are the review of applications for new licenses, and
for certain types of existing licenses, the review of renewal
applications, the review of amendment requests, and inspections.
Second, annual fees established in 10 CFR part 171 under the authority
of OBRA-90, recover generic and other regulatory costs not otherwise
recovered through 10 CFR part 170 fees.

II. Response to Comments

The NRC published the FY 2002 proposed fee rule on March 27, 2002
(67 FR 14818), to solicit public comment on its proposed revisions to
10 CFR parts 170 and 171. The NRC received 11 comments before the
comment period ended on April 26, 2002, and three additional comments
by May 24, 2002, for a total of 14 comments that were considered in
this fee rulemaking. Many of the commenters raised similar issues. As
such, these comments have been grouped according to similar issues, and
are addressed in a collective response.
The comments and NRC's responses are as follows:

A. Legal Issues

1. Information Provided by NRC in Support of Proposed Rule
Comment. One commenter urged the NRC to provide licensees and the
public with a more detailed explanation of the specific activities and
associated costs that form the basis for the part 171 annual fees,
including detailed information on the outstanding major contracts,
their purpose, and their costs. The commenter indicated that more
detailed information would allow stakeholders to provide more effective
feedback on the efficiency of NRC's regulatory activities and would
propel the Commission to exercise its authority to promote increased
fiscal responsibility. The commenter acknowledged the ability to access
the agency work papers through the NRC's Public Document Room or by
using the Agencywide Documents Access and Management System (ADAMS),
but finds this supporting material to be indecipherable.
Response. Consistent with the requirements of OBRA-90, as amended,
the purpose of this rulemaking is to establish fees necessary to
recover 96 percent of the NRC's FY 2002 budget authority, less the
amounts appropriated from the NWF and the General Fund, from the
various classes of licensees. The efficiencies of NRC's regulatory
activities and the manner in which NRC carries out its fiscal
responsibilities are not addressed in this final rule since the NRC's
budget and the manner in which the NRC carries out its activities are
outside the scope of this rulemaking. The proposed rule described the
types of activities included in the proposed fees and explained how the
fees were calculated to recover the budgeted costs

[[Page 42613]]

for those activities. Therefore, the NRC believes that ample
information was available on which to base constructive comments on the
proposed revisions to parts 170 and 171.
The NRC acknowledges that the work papers supporting the proposed
fee rule contain very detailed information. The work papers reflect the
complexity of the fee calculation process that is necessary to ensure
that the fees are fair and equitable to all licensees. The work papers
show the total budgeted FTE and contract costs at the planned
accomplishment level for each activity. The work papers also include
extensive information detailing the allocation of the budgeted costs
for each planned accomplishment within each program of each strategic
arena to the various classes of licenses.
In addition to the detailed budget information contained in the
work papers, the NRC has made available in the Public Document Room
NUREG-1100, Volume 17, ``Budget Estimates and Performance Plan, Fiscal
Year 2002 (April 2001),'' which discusses the NRC's budget for FY 2002,
including the activities to be performed in each strategic arena. The
NRC also has made this document available on its public Web site at
http://www.nrc.gov/who-we-are/plans.html. The extensive information
available to the public meets all legal requirements and the NRC
believes it provides the public with sufficient information on which to
base their comments on the proposed fee rule. Additionally, the
contacts listed in the proposed fee rule were available during the
public comment period to answer any questions that commenters had on
the development of the proposed fees. No inquiries of this nature were
received during the comment period.

B. Specific Part 170 Issues

1. Hourly Rates
Comment. Several commenters opposed the $152 proposed hourly rate
for the materials program. The commenters stated that the hourly rate
is excessive, is more than the professional hourly rates charged by
national consulting firms, and is counterproductive to NRC's apparent
efforts to reduce the total fee burden to uranium recovery licensees.
Response. The NRC's hourly rates are based on budgeted costs and
must be established at the revised levels to meet the fee recovery
requirements. The hourly rates include not only average salaries and
benefits for professional employees, but also a prorated share of
overhead costs, such as supervisory and secretarial support and
information technology overhead costs, as well as general and
administrative costs, such as rent, utilities, supplies, and payroll
and human resources staffs.
The increase in the hourly rates is primarily due to the
Government-wide pay increase in FY 2002. The revised hourly rates,
coupled with the direct contract costs, recover through part 170 fees
the full cost to the NRC of providing special services to specifically
identifiable beneficiaries as provided by the IOAA. The revised hourly
rates plus direct contract costs recover through part 171 annual fees
the required amount of NRC's budgeted costs for activities not
recovered through part 170 fees, as required by OBRA-90, as amended.
The NRC is establishing in this final rule the revised hourly rates
necessary to accomplish the fee recovery requirements. The professional
hourly rate for the reactor program is $156, compared to $150 in FY
2001, and the professional hourly rate for the materials program is
$152, compared to $144 in FY 2001. For part 170 activities, the rates
will be assessed for professional staff time expended on or after the
effective date of this final rule.
2. Fee Exemptions for Special Projects
Comment. Five comments were received opposing the NRC's proposed
modifications to the fee waiver provisions for special projects, most
of which criticized the proposed rule for the anticipated chilling
effect the ``primary beneficiary'' criterion will have on encouraging
and supporting ``ground-breaking'' actions by licensees. These
commenters believe that the proposed revisions would discourage
cooperative efforts between the NRC and industry to address safety
issues and opportunities for generic regulatory improvement. Some
commenters asserted that the changes are inconsistent with the NRC's
goals to improve regulatory efficiency and effectiveness, to reduce
unnecessary burden on stakeholders, and to promote increased realism in
regulatory decision-making. Several commenters stated that without some
relief from fees, there is no incentive for a licensee to take the lead
on an industry initiative that may contribute to generic regulatory
activity and which may serve as a model for other licensees. Two
commenters stated that relocating the fee waiver requirements to 10 CFR
170.11(a)(1) adds a degree of formality to the process and that such
formality costs the industry and the NRC resources and time. The
commenters urged the NRC to revise the provisions to encourage industry
to work cooperatively with the NRC on generic regulatory improvements
or efforts.
As part of its commentary on what it views as the evolution of the
fee waiver provision, one commenter suggested that the NRC's FY 2001
fee rule change adding the word ``NRC's'' in the third fee waiver
criteria was an attempt to distinguish between waiver requests based on
the industry's future use of the documents, in contrast to reports
being submitted, reviewed, and approved for the purpose of NRC's
generic regulatory improvements. The commenter asserted that the
proposed change for the FY 2002 fee rule goes further in establishing
barriers to unsolicited industry proposals for generic regulatory
improvements. The commenter claimed that these interpretations are
inconsistent with the history of the fee rule and many generic industry
initiatives reviewed by NRC without a fee, prior to 1999. This
commenter predicted that the proposed change will discourage industry
initiatives and penalize self-generated industry-wide generic
initiatives, which it contended is inconsistent with Commission and NRC
management encouragement of industry initiatives. The commenter pointed
to SECY-00-0016, ``Industry Initiatives in the Regulatory Process,'' in
which the staff discussed how industry initiatives would save resources
and improve timeliness of actions. The commenter also referred to the
Commission's direction to the staff, in response to SECY-96-062, ``to
evaluate, on a case-by-case basis, initiatives proposing further NRC
reliance on industry activities as an alternative to NRC activities.''
The same commenter stated that it is difficult to determine if an
industry report will be used for generic regulatory improvement prior
to NRC review. The commenter also complained that its intended purpose
stated at the time of submittal, and associated fee waiver requests,
typically have been rejected by the NRC's Chief Financial Officer
(CFO), making it ``difficult for the staff to make an informed decision
as to the intended use of the submittal.'' The commenter goes on to say
that the NRC staff is reluctant to discuss fee or usage matters with
the commenter, although these discussions are needed to assist the
staff in making a recommendation on the fee waiver.
The commenter also disagreed with basing the fee waiver on which
organization--the NRC or industry--is the primary beneficiary. The
commenter stated that waiving the fees for generic industry proposals
that facilitate regulatory improvement will encourage

[[Page 42614]]

initiatives which benefit both industry and NRC, pointing to the NRC's
Strategic Performance Goals of reducing unnecessary regulatory burden
and achieving greater realism in regulatory decisions. The commenter
argued that the NRC should not impose a policy that encourages industry
to ignore the best science and instead tell the NRC staff what it wants
to hear in order to obtain a waiver of review fees.
The commenter argued that NRC's budget is not enhanced by imposing
part 170 fees for services, since whatever is not recovered through
part 170 fees will be made up by charging part 171 annual fees. This
suggests that there is no budgetary imperative for charging part 170
fees (sought to be relieved by these fee waiver requests), rather than
allowing the costs to be absorbed through the imposition of annual
fees. In the commenter's words, ``granting or denying a waiver is
`revenue neutral','' however, the commenter stated that fees for
services present a serious budgetary problem for industry
organizations. According to the commenter, these organizations operate
on tight budgets that do not normally cover NRC review fees. Imposition
of these fees reduces the amount of research work the commenter's
organization can do to support the membership, and slows down efforts
on risk informed initiatives.
To address these concerns, the commenter recommended the fee waiver
provision be revised so it applies not only to those submittals
requested by the NRC, but also to those proposals for generic
regulatory improvements submitted by industry organizations
representing all licensees, including those which are unsolicited and
need NRC review, and are supported by the membership as a generic
submittal. The commenter stated it would ensure that its fee waiver
requests are reviewed and supported by its members, and that its
membership agrees to NRC cost recovery for these reviews through part
171 annual fees.
Response. As previously stated in the proposed fee rule, the
modifications to the fee waiver criteria do not represent a change in
NRC policy. Rather, the changes are clarifications intended to assist
applicants in determining in advance whether their submittals are
likely to meet the fee waiver criteria.
The NRC has consistently applied its policy of waiving the part 170
fees for special projects submitted to the NRC for the purpose of
supporting NRC's generic regulatory improvements, and assessing part
170 fees for the review of special projects that are submitted for
other purposes, including those that support industry generic
improvements. Part 170 fees are based on the provisions of the
Independent Offices Appropriations Act of 1952 (IOAA). This statute
allows Federal agencies to assess fees to recover costs incurred in
providing special benefits to identifiable recipients. While the NRC
has the authority to grant waivers from the part 170 fee requirements,
fee exemptions are granted very sparingly in order to meet the
requirements of OBRA-90 that almost all of the agency's budget
authority be recovered through IOAA and annual fees.
The NRC finds no justification for granting a part 170 fee waiver
to an industry organization seeking an NRC approval of an industry
initiative, unless the initiative will be used for NRC's generic
regulatory improvements, and the initiative was submitted specifically
for that purpose. In the latter case, the NRC's review and approval is
part of the process of developing the NRC's generic regulatory program,
and therefore the review activities are similar to other NRC generic
regulatory activities whose costs are recovered through part 171 annual
fees. Conversely, reviews of submittals that are for the industry's
generic improvements or use are considered services provided to
identifiable recipients. These are subject to IOAA fees, under
applicable caselaw. See, e.g., Mississippi Power & Light Co. v. U.S.
Nuclear Regulatory Commission, 601 F. 2d 233 (C.A. 5, 1979), cert. den.
444 U.S. 1102 (1980). Further, the ``primary beneficiary'' concept is
solidly rooted in pertinent caselaw, which authorizes the assessment of
fees for specific services/benefits against identifiable beneficiaries,
even if the service confers a benefit beyond that, i.e., upon the
general public as well. Engine Mfrs. Ass'n v. E.P.A., 20 F. 3d 1177
(C.A.D.C. 1994).
To say that the CFO's rejection of the submitter's stated purpose
and the related fee waiver request ``makes it difficult for the staff
to make an informed decision as to the intended use of the submittal''
reverses the proper order of things. The staff must provide technical
advice and recommendations to assist the CFO in making the appropriate
determination of fee waiver entitlement. The submittal, and thus,
potential for fee waiver, is to be weighed on the merits and how it
relates to the NRC's regulatory initiatives, from which fee
considerations flow, not the other way around. Moreover, while the
program staff certainly should be able to communicate freely with the
submitter on the technical merits of the submittal, it is appropriate
for the program staff to be reluctant to discuss fee matters with the
submitter because that is not the program staff's area of expertise.
Fee issues and discussions are the responsibility of the CFO's staff;
and therefore, to avoid confusion and misunderstanding, fee matters
should be discussed with the CFO's staff instead of the program staff.
On the other hand, the submitter is encouraged to have discussions with
the technical staff as to those submissions that support the NRC's
generic regulatory improvements or efforts. Submitters have a
legitimate interest in advance information about the fee implications
that will attend a submission, and interactions with both technical and
CFO staff on relevant matters are fully appropriate.
The NRC has consistently declined to base its fees on the financial
status of NRC licensees and applicants, except the impacts of the fees
on small entities the NRC is required to consider under the provisions
of the Regulatory Flexibility Act. Therefore, the NRC does not base fee
waivers on the budgetary constraints of those requesting NRC services.
Further, the determination of whether a fee waiver should be granted is
independent of whether there is willingness of the organization's
members to pay the costs through part 171 fees. If the organization's
members are willing to pay the costs of NRC's fees, the organization
can seek reimbursement from its members. The IOAA prescribes the
standards for charging fees to identifiable recipients for services or
things of value, and there is nothing in the statute that authorizes
fee-shifting through consensus.
For this reason, it is also unpersuasive to argue that the NRC
should liberally grant part 170 fee waivers based on ``revenue
neutrality.'' Under that theory, the NRC need never charge part 170
fees, because whatever is not recouped there will be recovered through
part 171 fees. Although the budgeted costs still would be recovered
regardless of how the charges are assessed, that is not the standard
for fee assessment under the IOAA, nor should it be for purposes of
granting or denying fee waiver requests.
Moreover the NRC's fee schedule is not an incentive program. Fees
are established in accordance with applicable legal requirements and
not meant to be either inducements or disincentives. Rather, they are
established to recover the NRC's costs, as required by law. Further,
the assessment of part 170 fees for special projects is fully
consistent with the NRC's policies on industry initiatives. In SECY 97-
303, ``The Role of Industry (DSI-13) and Use of Industry Initiatives,''
the staff stated that fees will

[[Page 42615]]

be assessed unless the fee waiver criteria is met. As always, under the
fee waiver criteria, NRC will waive the review fees for special
projects submitted for the purpose of supporting NRC's regulatory
improvements as long as the NRC staff agrees that it will be used by
the NRC in developing or improving its regulatory framework. Not every
submittal results in a safety improvement, burden reduction, or
improved process. The NRC encourages any special project applicant who
believes that its proposal will help improve NRC's regulatory process
to discuss its proposal with the cognizant NRC program office staff
prior to requesting a fee waiver from the Chief Financial Officer.
With regard to fee waivers for ``ground breaking'' licensing
actions, the fee exemption provision for special projects does not
apply to licensing actions. As defined in Sec. 170.3, special projects
are those requests submitted to the NRC for review for which fees are
not otherwise specified in part 170. Part 170 specifies fees for
licensing actions, therefore, first-of-a-kind licensing actions are not
special projects for purposes of part 170. The waiver criteria that
were previously in footnote 4 of Sec. 170.21 and footnote 5 of
Sec. 170.31, which in this final rule the NRC is moving to Sec. 170.11,
have always specifically referred to special projects (see
Sec. 170.11(a)(1)). The NRC is not changing its practice for exemption
requests for first-of-a-kind licensing actions and will continue to
address such exemption requests on a case-by-case basis under
Sec. 170.11(b).
The NRC believes the modifications to the fee waiver criteria
language have the potential to save both NRC and industry resources
because the industry will have more definitive guidelines on the types
of submission that will be granted a fee waiver. The NRC believes these
clarifications will better inform the industry, so they will not
request fee waivers for those types of special projects which do not
meet the waiver criteria. Further, it is unclear how relocating the fee
waiver criteria to the exemption section of part 170 adds any formality
to the process or how such purported formality will cost the industry
or NRC resources and time as some commenters contend. Moving the
criteria neither changes the process nor enhances its legal status. The
NRC believes that it is more appropriate to have the fee exemption
provisions for special projects with the existing part 170 fee
exemption provisions.
The NRC, in this final rule, is revising the fee waiver criteria to
clarify the fee exemption provisions. In addition, the exemption
section of Sec. 170.11 is being revised to include the language that
was previously located in footnote 4 to Sec. 170.21 and footnote 5 to
Sec. 170.31.
3. Invoice Information
Comment. One commenter asserted that NRC's invoices lack adequate
explanations of the work done by NRC staff and NRC contractors. The
commenter urged the NRC to continue its efforts to provide invoices
that contain more detailed information on the specific costs. While
recognizing that this would require major revisions to NRC's billing
system, the commenter contended that the change would serve the NRC,
its licensees, and the public well.
Response. As the NRC has stated in the past, the NRC believes that
sufficient information is provided on the invoices for licensees and
applicants to base payment of the costs assessed under part 170. For
NRC staff effort, specific policies and procedures are in place for NRC
staff to follow in recording time in the Human Resources Management
System (HRMS), which is the NRC's current system for tracking staff
hours expended. The system contains specific codes for the various
types of licensing reviews, leave, training, general administration
effort, etc. From HRMS, the fee billing system captures the NRC staff
hours for activities billable under part 170 as well as the work effort
code descriptions for those billable hours. For these activities, the
staff hours, work effort codes, the name of the staff member performing
the work, and the date the work was completed, if applicable, are
printed on the enclosure to the part 170 invoices. Additionally, the
inspection report number is provided on inspection fee bills. The work
effort codes are the only available data describing the work performed,
and they are the lowest level of detail available in HRMS. However, the
NRC believes that the summary work descriptions shown on the invoices
are sufficient to allow licensees to identify the subject of the NRC's
efforts.
For contractor costs billed to uranium recovery licensees under
part 170, the NRC includes copies of the contractors' summary cost
reports with the invoices. Upon specific request, the NRC will send all
available information in support of the bill to any licensee or
applicant who does not understand the charges or needs more information
in order to understand the bill. This has always been an option
available to licensees and applicants who feel they need more
information on the costs billed.
The NRC does not plan to develop new systems solely to provide
additional information on its fee invoices. Office of Management and
Budget Circular A-25, which provides guidelines for Federal agencies to
assess fees for Government services, provides that new cost accounting
systems do not need to be established solely for the purpose of
determining or estimating full cost.

C. Specific Part 171 Issues

1. Mixed Oxide Fuel (MOX) Contested Hearing Costs
Comment. One nuclear industry group commented that the NRC's
proposal to assess MOX contested hearing costs to the fuel facility
class is unfair, and that it is a violation of OBRA-90 to charge
licensees for an agency activity or program from which the licensees
receive no benefit. In this case, the commenter asserts that fuel
facility licensees should not be responsible for bearing the costs of
hearings associated with MOX fabrication because this process has no
relation to the NRC's regulatory services from which fuel facility
licensees obtain a benefit. Specifically, the MOX program is a Federal
government initiative to ensure national security through the
disposition of plutonium stockpiles. The commenter further adds that
the beneficiaries of the MOX program are the Federal government and the
nation's citizenry because it will aid in the reduction of weapons-
grade plutonium. As such, the commenter contends that commercial fuel
facility licensees should not have to subsidize the Federal
government's efforts to ensure national security, and that such costs
should be appropriated through the General Fund and removed from the
NRC fee base. The commenter also states that NRC distributes hearing
costs for license applications among the affected class of licensees,
and to the extent that they benefit the entire class, this approach is
logical. However, the commenter further indicates that hearing costs
related to the disposition of plutonium under the MOX program do not
meet the threshold of benefitting other licensees in the class, and
therefore should not be assessed as such. The commenter makes a final
point about the NRC's fee allocation methodology for hearing costs
being problematic in that when applied to certain types of licensees
whose numbers are few, this could conceivably lead to a competitor
having to bear the hearing costs of its competition during NRC
licensing proceedings.

[[Page 42616]]

Response. OBRA-90 mandates that the NRC collect IOAA (part 170) and
annual fees (part 171) to recover almost all of its budgeted costs,
less the amounts appropriated from the NWF. Therefore, the NRC must
recover hearing costs through part 170 fees for services or through
part 171 annual fees. OBRA-90 also requires that, to the maximum extent
practicable, the annual charges shall have a reasonable relationship to
the cost of providing regulatory services. The NRC has a longstanding
policy of charging the affected applicant or licensee part 170 fees for
uncontested hearings (i.e., those required as part of the licensing
process), and not charging part 170 fees for contested hearings. As a
result, the costs for contested hearings are recovered through part 171
annual fees assessed to the affected class of licensee. This policy has
been reconfirmed in the statement of considerations and in responses to
comments received from the public during many past fee rulemakings, in
court pleadings, and in an NRC report to Congress on fees.
The Commission believes there is merit to the comment regarding
assessing annual fees for the MOX contested hearing since the hearing
is related to a U.S. Government national security initiative. Thus, as
a change to the proposed rule, the Commission will not impose the
entire budget of the MOX contested license proceeding for FY 2002 on
the fuel facility licensee class. This proceeding pertains to the
license application for MOX fuel fabrication facility, a U.S.
Government national security initiative to dispose of plutonium
stockpiles. Since a rulemaking to propose recovery of MOX and other
U.S. Government national security initiative contested hearing costs
through part 170 fees could not be promulgated and made effective
before FY 2003, the Commission is making an interim change for FY 2002
only. This change will recover the $433,000 budgeted for MOX contested
hearing activities through part 171 annual fees assessed to all classes
of licensees, based on their respective percentages of the NRC's
budget. As a result, the amount assessed to the fuel facility class has
decreased by approximately $408,000, while the total amount assessed to
most of the other classes of licensees has increased correspondingly.
Thus, the amounts assessed to each of the affected classes for the FY
2002 MOX contested hearing costs are as follows: operating reactors--
$345,000; spent fuel storage/reactor decommissioning--$33,000; non-
power reactors--$400; fuel facility--$25,000; materials users--$19,000;
transportation--$5000; rare earth facilities--$1000; and uranium
recovery--$4000. For example, this equates to approximately $4,000 per
licensee in the power reactor class, which is obtained by dividing the
$345,000 by the 104 licensees (due to rounding, dollar amounts are not
exact). For the other affected classes of licensees and their
respective fee categories, the increases or decreases in annual fee
amounts for individual licensees, due to assessment of MOX contested
hearing costs, are set forth in the agency work papers. Due to
rounding, the annual fees for certain individual licensees in some of
the affected classes did not change.
The Commission intends, in the near future, to issue a proposed
rule for public comment that would recover the cost for contested
hearings involving U.S. Government national security initiatives
through part 170 fees assessed to the affected applicant or licensee.
The NRC plans to conduct this rulemaking so that any proposed change,
if adopted in a final rule, would be effective in early FY 2003.
With regard to the commenter's recommendation for the NRC to obtain
separate appropriations from the General Fund to cover the MOX
contested hearing costs, this is not practicable for FY 2002. The
Congress has already passed the FY 2002 Energy and Water Development
Appropriations Act, and the NRC is well into implementing its budget
under this authority. Furthermore, the commenter is incorrect about how
NRC hearing fees are assessed to licensees. As discussed above, the NRC
assesses the specific applicant or licensee part 170 fees for the costs
of uncontested hearings that are part of the required license
application process. However, for contested hearings, the NRC assesses
the affected class of licensees the associated costs of the hearing
through part 171 annual fees. Similarly, the commenter's point about
one licensee conceivably subsidizing the costs of a competitor's
licensing hearing is incorrect for the aforementioned reason. Costs
associated with a contested hearing are not assessed to a specific
category of licensee as mentioned by the commenter, but instead are
assessed to the entire affected class of licensees. As stated in the
NRC fee schedules, some classes of licensees consist of multiple fee
categories.
2. Annual Fees for Materials Users, Including Small Entities
Comment. Two nuclear density gauge users and one manufacturer
commented that their fees are too high, and create a significant
financial burden on small business owners. One commenter stated that
the combined license application fee and annual fee for this category
equals 80 percent of the cost of the gauge device. The commenter
further asserted that Agreement States' fees average about one-fourth
of NRC's proposed fees, causing an unfair disparity in the industry.
Another commenter indicated only a small fraction of the company's
revenues was generated from NRC licensed activities, but that it was
essential to maintain this segment of business in order to retain other
contracts not related to its NRC license. Therefore, the commenter
contended that only income generated from NRC licensed activities
should be considered when establishing fees. With respect to the NRC's
upper fee level for small entities, the third commenter stated that the
broad revenue range encompassing $350,000 to $5,000,000 in gross annual
receipts tends to favor larger firms while burdening smaller
businesses. Thus, the NRC should consider adding more tiers for small
businesses to reduce the license fee burden on smaller entities.
Response. The NRC has responded to similar comments in previous fee
rulemakings, both from materials users and other licensees, regarding
the impact of fees on industry. In summary, the NRC has stated since FY
1991, when the 100 percent fee recovery requirement was first
implemented, that it recognizes the assessment of fees to recover the
agency's costs may result in a substantial financial hardship for some
licensees. However, consistent with the OBRA-90 requirement that annual
fees must have, to the maximum extent practicable, a reasonable
relationship to the cost of providing regulatory services, the annual
fees for each class of license, including materials users, reflect the
NRC's budgeted cost of its regulatory services to the class. The NRC
determined the budgeted costs to be allocated to each class of licensee
through a comprehensive review of every planned accomplishment in each
of the agency's major program areas. Furthermore, a reduction in the
fees assessed to one class of licensees would require a corresponding
increase in the fees assessed to other classes. Accordingly, the NRC
has not based its annual fees on licensees' economic status, market
conditions, or the inability of licensees to pass through the costs to
its customers. Instead, the NRC has only considered the impacts it is
required to address by law.

[[Page 42617]]

Based on the provisions of the Regulatory Flexibility Act (RFA),
the NRC provides reduced annual fees for licensees who qualify as small
entities under the NRC's size standards. The materials users class has
the most licensees who qualify for these reduced fees of any class. As
such, the materials user class receives the largest amount of annual
fee reductions of any class. The FY 2002 total estimated fee amount
that will not be collected from licensees who pay reduced annual fees
based on their small entity status is approximately $4.5 million, which
must be collected from other NRC licensees in the form of a surcharge.
Further reductions in fees for materials users would create an
additional fee burden on other licensees, thus raising fairness and
equity concerns.
As stated in 10 CFR 2.810, NRC size standards, the NRC uses the
Small Business Administration's (SBA) definition of receipts. Based on
the SBA definition, revenue from all sources, not solely receipts from
NRC licensed activities, is considered in determining whether a
licensee qualifies as a small entity under the NRC's revenue-based size
standards.
The NRC believes that the two tiers of reduced annual fees
currently in place provide substantial fee relief for small entities,
including those with relatively low annual gross revenues. As noted
previously, reductions in fees for small entities must be paid by other
NRC licensees in order to comply with the OBRA-90 requirement to
recover most of the agency's budget authority through fees. While
establishing additional tiers would provide further fee relief to some
small entities, it would result in an increase of the small entity
subsidy paid by other licensees. The NRC must maintain a reasonable
balance between the provisions of OBRA-90 and the RFA requirement for
the agency to examine ways to minimize significant impacts that its
rules may have on a substantial number of small entities. Therefore,
the NRC is not providing any modification to its small entity fee
structure, nor any further reduction in annual fees beyond that already
provided for small entities.
3. Annual Fees for Uranium Recovery Licensees
Comment. Two uranium recovery industry groups and one licensee
commented on the FY 2002 proposed fee rule. All unanimously supported
the NRC's revised methodology for allocating uranium recovery budgeted
costs, which results in reduced annual fees for the commercial uranium
recovery licensees. However, despite the proposed reductions, these
commenters felt that the NRC's annual fees are excessive and represent
a tremendous burden to the uranium recovery industry, which is already
experiencing a severe economic downturn because of the depressed
uranium market. The commenters all believe there is excessive
regulatory oversight by the NRC of the uranium recovery industry,
especially in light of the NRC's performance-based licensing approach,
which they contend should result in a reduced regulatory effort. Thus,
the commenters assert that the NRC should consider a more balanced
approach to uranium recovery regulation, resulting in less regulatory
oversight and lower costs. Additionally, the commenters stated that the
NRC has failed to adequately deal with the issue of decreasing numbers
of uranium recovery licensees, or charging annual fees to licensees
whose facilities are in standby status. Specifically, as more states
become Agreement States and/or additional sites are decommissioned, the
number of NRC regulated sites continues to decline, leaving fewer
licensees to pay a larger share of the NRC's regulatory costs. As such,
the commenters argue that there is a lack of reasonable relationship
between annual fees and regulatory services rendered by the NRC. One
commenter indicated that the NRC's policy of charging annual fees to
licensees in standby status, who require minimal oversight, is not
commensurate with the benefit of holding a license, and unfairly
penalizes those licensees who are waiting for market conditions to
improve before they become operational again.
These commenters also supported the revised Office of Nuclear
Material Safety and Safeguards' policy for assigning Project Managers.
Two of the commenters stated that the change benefits licensees in a
standby mode because they do not generally use much of the Project
Manager's time. The third commenter stated that recovering more of
these costs through annual fees is more equitable because the costs are
spread across a range of licensees.
Response. The NRC has responded to the concerns raised by these
commenters in several previous fee rulemakings. The NRC acknowledges
that the uranium recovery industry is experiencing an economic downturn
in the market for uranium. However, since FY 1991, when the 100 percent
fee recovery requirement was enacted under OBRA-90, the Commission has
consistently taken the position that it will not consider economic
factors when establishing fees, except for reduced fees provided for
small entities based on the provisions of the RFA. To grant fee relief
to the uranium recovery industry on the basis of its economic
conditions or business practices (e.g., a licensee's decision whether
to remain operational or go into a standby status) could set an
untenable precedent for the NRC with the potential to unravel the
stability and viability of the entire fee system. Not only would other
classes of licenses be required to subsidize the uranium recovery
industry through increased fees, but other categories of licensees may
also request similar treatment based on analogous economic
considerations. Thus, it would be difficult to develop a rationale for
waiving the fees for uranium recovery licensees while denying similar
requests from other NRC licensees, such as well loggers or licensed
medical facilities whose industries may also be experiencing economic
downturns.
The NRC has conducted numerous analyses concerning the issue of
decreasing numbers of licensees, and the effect this has on annual
fees. Although a decreasing licensee base is only one of several
factors affecting annual fees, it presents a clear dilemma for both the
uranium recovery group in its efforts to maintain a viable industry and
the NRC which must recoup its budgeted costs from the licensees it
regulates. In the wide range of scenarios the NRC evaluated during its
analyses, most potential remedies to this problem involved establishing
arbitrary fee caps or thresholds for certain classes of licensees.
Other potential solutions involved combining fee categories. As noted
previously, given the requirements of OBRA-90, as amended, to collect
most of NRC's budget authority through fees, failure to fully recover
costs from certain classes of licensees due to caps or thresholds would
result in other classes of licensees bearing these costs. Combining fee
categories would also have the potential to increase the annual fees
for certain licensees in the new combined category to cover part of the
cost for the licensees whose fees were reduced by this action. The NRC
considers that alternatives involving caps or thresholds, and combining
fee categories, raise fairness and equity concerns. As such, the
Commission has not adopted any of these approaches. Also, the NRC notes
that commenters opposed a similarly postulated 50 percent cap on annual
fee increases in response to this issue in the FY 1999 proposed fee
rule. Thus, the NRC concluded that the most equitable option under the
agency's current fee collection mandate was to maintain its existing
fee policy, but continue to seek

[[Page 42618]]

cost efficiencies through its annual reviews conducted as part of the
budget process.
The issue of charging licensees in standby status has been
discussed in many previous fee rules. In summary, the Commission has
stated that the existing policy of assessing annual fees based on
whether a licensee holds a valid NRC license authorizing possession and
use of nuclear material, irrespective of the licensee's intent to
operate its facility or remain in standby, represents the fairest
option available under current legislation. This policy is based on the
premise that the benefit the NRC provides a licensee is the authority
to use licensed material. Whether or not a licensee decides to exercise
this authority is a business decision outside the realm of NRC
jurisdiction. Additionally, licensees in a standby status continue to
benefit from NRC's generic guidance and rules applicable to the uranium
recovery class of licensees, and therefore should continue to pay
annual fees. Furthermore, based on fee recovery requirements of OBRA-
90, reducing the number of licensees paying annual fees by granting
relief for licensees in a standby status would ultimately increase the
annual fees assessed to the remaining licensees. In effect, providing
such fee relief would exacerbate the existing condition of decreasing
numbers of licensees, which is an ongoing concern of the commenters.
Nonetheless, the Commission will reexamine this issue prior to
publishing the FY 2003 fee rule.
In this rulemaking, the Commission has adopted the proposed revised
methodology for allocating uranium recovery budgeted costs. Moreover,
the FY 2002 annual fees reflect the Office of Nuclear Material Safety
and Safeguard's revised policy for assigning PMs. As explained
previously, part 171 annual fees for the uranium recovery class
includes a prorated share of the FY 2002 budgeted costs for the MOX
contested hearing.
4. Annual Fees for Power Reactor Licensees
Comment. Three commenters addressed the proposed annual fees for
the power reactor class. Two of these commenters agreed with the NRC's
policy, clarified in the proposed fee rule, of charging annual fees on
a per license basis, and not on a reactor-unit basis. However,
according to one of the commenters on this issue, this approach would
not be equitable if the NRC assesses two separate annual fees to a dual
unit standard reactor facility, such as those certified under part 52,
Appendix C, if the sum of these fees exceeded the annual fee charged to
multi-unit reactor modular facilities, providing these modular
facilities had a single license. The other commenter on this subject
asserts the NRC should make it clear in the FY 2002 final rule that the
agency's underlying intent is to assess multi-unit reactor modular
facilities a single annual fee, regardless of whether the licensee
holds a single or multiple combined operating license(s). One commenter
stated the industry objects to the NRC's approach of allocating generic
costs through part 171, indicating that the power reactor class of
licensees bear a large share of the annual fee burden.
Response. In the proposed fee rule, the NRC stated its intent to
revise Sec. 171.15(a) to clarify that annual fees are assessed on a per
license basis, and not for each reactor unit. The NRC reiterates that
this clarification is not a change to its existing policy of charging
annual fees for each license. Furthermore, the NRC is not proposing a
specific annual fee category or amount for part 52 combined licenses
because there are no such existing licenses at this time. The NRC's
intent when proposing these revisions was to make potential applicants
for part 52 combined licenses aware that they would be subject to
annual fees. At this time, the NRC does not have the information
required to make a decision with respect to assessing annual fees for
part 52 combined licenses for multi-unit modular reactors. In the
future, when the NRC determines its fee structure for part 52 combined
licenses, the fees will be assessed in a fair and equitable manner, and
to the maximum extent practicable, will reflect a reasonable
relationship to the cost of the regulatory services provided.
The part 171 power reactor annual fees are established to recover
the costs for generic activities related to power reactors such as
rulemakings and guidance development, as well as costs for other
activities for the class not recovered through part 170 fees (e.g.,
allegations, contested hearings, special projects for which fee waivers
are granted, orders issued under 10 CFR 2.202 or responses to such
orders, etc.). The final annual fees this year for power reactors also
include a prorated share of the FY 2002 budgeted MOX contested hearing
costs as previously explained. The annual fees for each class also
includes a share of the total surcharge costs to be recovered through
annual fees assessed to NRC licensees. The surcharge is established to
recover the costs for NRC activities that are not attributable to an
existing NRC licensee or class of licensee, activities that are exempt
from part 170 fees based on law or Commission policy, and those
activities that support NRC operating licensees and others. The
surcharge is required in order for the NRC to meet the statutory
requirement of OBRA-90, as amended, that almost all of the NRC's budget
be recovered through IOAA and annual fees. To address fairness and
equity concerns raised by the NRC related to charging NRC license
holders for these expenses that do not directly benefit them, the FY
2001 Energy and Water Development Appropriations Act amended OBRA-90 to
decrease the NRC's fee recovery amount by two percent per year
beginning in FY 2001, until the fee recovery amount is 90 percent in FY
2005. Thus, it is anticipated that the necessity for the NRC to charge
licensees for costs that are not directly related to them or to their
class will be eliminated, or almost eliminated, by FY 2005.
The agency work papers supporting both the proposed and final fee
rules show the budgeted costs for each activity at the NRC's planned
accomplishment level, and the classes of licenses to which these costs
are allocated. Furthermore, the work papers show by class the total
costs allocated, and the estimated part 170 collections. The annual
fees are established to recover the difference between the NRC's total
recoverable budgeted costs (less the Nuclear Waste Fund and General
Fund) and the estimated part 170 collections, in accordance with OBRA-
90, as amended.
5. Annual Fees for Fuel Facilities Licensees
Comment. One comment was received opposing the NRC's proposed
annual fee increase for the uranium hexafluoride conversion category
within the fuel facility class, stating that these fees should remain
the same as the previous year. The commenter maintained that its
conversion facility, which is the only one in the United States, has
been unprofitable for the last three years, asserting this is in part
due to the U.S. Government's uranium policies. The commenter added that
the reduced worldwide demand for uranium has jeopardized the viability
of the facility. Additionally, the commenter contended that the NRC's
requirement for additional security upgrades for its facility since the
September 11, 2001, terrorist attacks, placed additional financial
strains on the company. Finally, the commenter indicated that the costs
incurred by the company as a result of NRC fees and security
requirements will significantly impact the viability of the facility.

[[Page 42619]]

Response. The NRC has addressed similar issues from other
commenters regarding the impact of fees on industry, both in this fee
rule and in previous years' fee rules. As earlier stated, consistent
with the requirements of OBRA-90, as amended, the NRC must collect most
of its budgeted costs through assessment of fees. These budgeted costs
are the resources necessary for the NRC to execute its regulatory
oversight of the various licensee classes. The NRC determined the
budgeted costs to be allocated to each class of licensee through a
comprehensive review of every planned accomplishment in each of the
agency's major program areas. The annual fees for the various
categories of licensees in the fuel facility class are based on the
budgeted costs that must be recovered from the class to meet the
requirements of OBRA-90, as amended. Although this may create a
financial hardship for some licensees, a reduction in the fees assessed
to one class or category of licensees would require a corresponding
increase in the fees assessed to other licensees. Consequently, the NRC
has not based its fees on licensees' economic status, market
conditions, or the ability of licensees to pass through the costs to
its customers.
The final annual fees this year for the fuel facility class,
including the uranium hexafluoride conversion category of licensees,
have been adjusted to reflect the Commission's decision with respect to
recovering FY 2002 costs for the MOX contested hearing. Specifically,
the FY 2002 budgeted costs for the MOX contested hearing will be
assessed to all classes of licensees in their annual fees. In the
proposed fee rule, 100 percent of these costs were included in the
annual fees for the fuel facility class alone. As a result of this
change, the final FY 2002 annual fees for the fuel facility licensees
are less than the proposed annual fees.

C. Other Issues

1. NRC Budget
Comment. One commenter stated that the NRC's overall budget should
be reduced by more efficient use of resources resulting from the
agency's revised regulatory approach. Specifically, under the NRC's
reactor oversight program, there has been a reduction in the number of
regional initiative inspections, yet these reductions are not accounted
for in the proposed fees. Moreover, according to the commenter,
successful implementation of the reactor oversight program provides the
NRC an opportunity to reallocate existing resources to meet the
challenges of risk-informing regulations and licensing new reactor
designs. The commenter indicated that the NRC should consider
consolidating the regional offices in the near term, and eliminating
them altogether in the longer term, in order to save agency resources.
Another commenter stated that there should be a decrease in fees based
on changes in the NRC's regulatory approach and industry's excellent
performance.
Response. As noted in several previous fee rules, the NRC's budget
and the manner in which the agency implements its programs are not
within the scope of this rulemaking. Therefore, this final rule does
not address comments concerning the NRC's budget or the use of its
resources. The NRC's budget is submitted to the Office of Management
and Budget and then to Congress for review and approval. The
Congressionally approved budget resulting from this process reflects
the resources necessary for NRC to execute its statutory obligations.
In compliance with OBRA-90, as amended, the fees are established to
recover the required percentage of the approved budget.

III. Final Action

The NRC is amending its licensing, inspection, and annual fees to
recover approximately 96 percent of its FY 2002 budget authority,
including the budget authority for its Office of the Inspector General,
less the appropriations received from the NWF and the General Fund. The
NRC's total budget authority for FY 2002 is $559.1 million, of which
approximately $23.7 million has been appropriated from the NWF. In
addition, $36.0 million has been appropriated from the General Fund for
activities related to homeland security. Based on the 96 percent fee
recovery requirement, the NRC must collect approximately $479.5 million
in FY 2002 through part 170 licensing and inspection fees, part 171
annual fees, and other offsetting receipts. The total amount to be
recovered through fees and other offsetting receipts for FY 2002 is
$26.2 million more than the amount estimated for recovery in FY 2001.
The FY 2002 fee recovery amount is reduced by a $1.7 million
carryover from additional collections in FY 2001 that were
unanticipated at the time the final FY 2001 fee rule was published.
This leaves approximately $477.8 million to be recovered in FY 2002
through part 170 licensing and inspection fees, part 171 annual fees,
and other offsetting receipts.
The NRC estimates that approximately $124.0 million will be
recovered in FY 2002 from part 170 fees and other offsetting receipts.
For FY 2002, the NRC also estimates a net adjustment of approximately
$8.2 million for FY 2002 invoices that the NRC estimates will not be
paid during the fiscal year, and for payments received in FY 2002 for
FY 2001 invoices. The remaining $345.6 million will be recovered
through the part 171 annual fees, compared to $331.6 million for FY
2001.
Table I summarizes the budget and fee recovery amounts for FY 2002.
Due to rounding, adding the individual numbers in the table may result
in a total that is slightly different than the one shown.

Table I.--Budget and Fee Recovery Amounts for FY 2002
[Dollars in millions]
------------------------------------------------------------------------

------------------------------------------------------------------------
Total Budget Authority....................................... $559.1
Less NWF................................................. -23.7
Less General Fund........................................ -36.0
----------
Balance.............................................. $499.5
Fee Recovery Rate for FY 2002............................ x 96.0%
----------
Total Amount to be Recovered For FY 2002..................... $479.5
Less Carryover from FY 2001.............................. -1.7
----------
Amount to be Recovered Through Fees and Other Receipts....... $477.8
Less Estimated Part 170 Fees and Other Receipts.......... -124.0
==========

[[Page 42620]]

Part 171 Fee Collections Required............................ $353.8
Part 171 Billing Adjustments:
Unpaid FY 2002 Invoices (estimated)...................... 2.9
Less Payments Received in FY 2002 for Prior Year Invoices -11.1
(estimated).............................................
----------
Subtotal............................................. -8.2
==========
Adjusted Part 171 Collections Required....................... $345.6
------------------------------------------------------------------------

The FY 2002 final fee rule is a ``major'' final action as defined
by the Small Business Regulatory Enforcement Fairness Act of 1996.
Therefore, the NRC's fees for FY 2002 will become effective 60 days
after publication of the final rule in the Federal Register. The NRC
will send an invoice for the amount of the annual fee to reactors and
major fuel cycle facilities upon publication of the FY 2002 final rule.
For these licensees, payment will be due on the effective date of the
FY 2002 rule. Those materials licensees whose license anniversary date
during FY 2002 falls before the effective date of the final FY 2002
rule will be billed for the annual fee during the anniversary month of
the license at the FY 2001 annual fee rate. Those materials licensees
whose license anniversary date falls on or after the effective date of
the final FY 2002 rule will be billed for the annual fee at the FY 2002
annual fee rate during the anniversary month of the license, and
payment will be due on the date of the invoice.
As noted in the FY 2002 proposed fee rule, the National Mining
Association (NMA) filed a petition requesting the commencement of a
rulemaking proceeding which would result in a modification of the
existing fee schedules to waive all fees for commercial uranium
recovery licensees. Alternatively, the NMA requested the waiver of fees
associated with a contemplated rulemaking that would establish
requirements for licensing uranium and thorium facilities. The NRC
published the NMA's petition in the Federal Register for public comment
(66 FR 55604; November 2, 2001). Because fees would increase for other
licensees should the Commission grant the petition, the NRC invited
those that had arguments to place before the Commission that were not
submitted in response to the November 2, 2001, Federal Register
document to do so during the comment period for the FY 2002 proposed
fee rule. After careful evaluation of NMA's request and all comments
received, the Commission has decided to deny the NMA petition.
Additional detail on this petition and the Commission's denial will be
published in the Federal Register in the near future.
In accordance with its FY 1998 announcement, the NRC has
discontinued mailing the final rule to all licensees as a cost-saving
measure. Accordingly, the NRC does not plan to routinely mail the FY
2002 final rule or future final fee rules to licensees. However, the
NRC will send the final rule to any licensee or other person upon
specific request. To request a copy, contact the License Fee and
Accounts Receivable Branch, Division of Accounting and Finance, Office
of the Chief Financial Officer, at 301-415-7554, or e-mail us at
fees@nrc.gov. In addition to publication in the Federal Register, the
final rule will be available on the Internet at http://
ruleforum.llnl.gov for at least 90 days after the effective date of the
final rule.
The NRC is amending 10 CFR parts 170 and 171 as discussed in
Sections A and B below.

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

The NRC is revising the hourly rates used to calculate fees and is
adjusting the part 170 fees based on the revised hourly rates.
Additionally, the NRC is revising part 170 to clarify that full cost
fees will be assessed for amendments and inspections related to the
storage of reactor-related Greater than Class C (GTCC) waste under part
72, and to clarify the fee waiver provisions for special projects,
including topical reports.
The amendments are as follows:
1. Hourly Rates
The NRC is revising the two professional hourly rates for NRC staff
time established in Sec. 170.20. These rates are based on the number of
FY 2002 direct program full time equivalents (FTEs) and the FY 2002 NRC
budget, excluding direct program support costs and NRC's appropriations
from the NWF and the General Fund. These rates are used to determine
the part 170 fees. The hourly rate for the reactor program is $156 per
hour ($276,345 per direct FTE). This rate is applicable to all
activities for which fees are assessed under Sec. 170.21 of the fee
regulations. The hourly rate for the materials program (nuclear
materials and nuclear waste programs) is $152 per hour ($269,451 per
direct FTE). This rate is applicable to all activities for which fees
are assessed under Sec. 170.31 of the fee regulations. In the FY 2001
final fee rule, the reactor and materials program rates were $150 and
$144, respectively. The increases are primarily due to the Government-
wide pay increase in FY 2002.
The method used to determine the two professional hourly rates is
as follows:
a. Direct program FTE levels are identified for the reactor program
and the materials program (nuclear materials and nuclear waste
programs).
b. Direct contract support, which is the use of contract or other
services in support of the line organization's direct program, is
excluded from the calculation of the hourly rates because the costs for
direct contract support are charged directly through the various
categories of fees.
c. All other program costs (i.e., Salaries and Benefits, Travel)
represent ``in-house'' costs and are to be collected by dividing them
uniformly by the total number of direct FTEs for the program. In
addition, salaries and benefits plus contracts for non-program direct
management and support, and for the Office of the Inspector General,
are allocated to each program based on that program's direct costs.
This method results in the following costs which are included in the
hourly rates. Due to rounding, adding the individual numbers in the
table may result in a total that is slightly different than the one
shown.

[[Page 42621]]

Table II.--FY 2002 Budget Authority Included in Hourly Rates
------------------------------------------------------------------------
Reactor Materials
program program
------------------------------------------------------------------------
Direct Program Salaries & Benefits............ $117.0M $32.2M
Overhead Salaries & Benefits, Program Travel 59.2M 15.6M
and Other Support............................
Allocated Agency Management and Support....... 106.9M 29.0M
-------------------------
Subtotal.................................. $283.1M $76.8M
Less offsetting receipts...................... -0.1M -0.00M
-------------------------
Total Budget Included in Hourly Rate...... $283.0M $76.8M
Program Direct FTEs........................... 1024.0 285.1
Rate per Direct FTE........................... 276,345 269,451
Professional Hourly Rate (Rate per direct FTE $156 $152
divided by 1,776 hours)......................
------------------------------------------------------------------------

As shown in Table II, dividing the $283.0 million budgeted amount
(rounded) included in the hourly rate for the reactor program by the
reactor program direct FTEs (1024.0) results in a rate for the reactor
program of $276,345 per FTE for FY 2002. The Direct FTE Hourly Rate for
the reactor program is $156 per hour (rounded to the nearest whole
dollar). This rate is calculated by dividing the cost per direct FTE
($276,345) by the number of productive hours in one year (1,776 hours)
as set forth in the revised OMB Circular A-76, ``Performance of
Commercial Activities.'' Similarly, dividing the $76.8 million budgeted
amount (rounded) included in the hourly rate for the materials program
by the program direct FTEs (285.1) results in a rate of $269,451 per
FTE for FY 2002. The Direct FTE Hourly Rate for the materials program
is $152 per hour (rounded to the nearest whole dollar). This rate is
calculated by dividing the cost per direct FTE ($269,451) by the number
of productive hours in one year (1,776 hours).
2. Fees for Storage of Greater than Class C Waste Under Part 72
On October 11, 2001 (66 FR 51823), the NRC published a final rule
revising part 72 to allow licensing for the interim storage of reactor-
related Greater than Class C (GTCC) waste in a manner that is
consistent with current licensing for the interim storage of spent
fuel. As provided in Sec. 72.6, reactor-related GTCC waste can only be
stored under the provisions of a specific license. The NRC stated in
the statement of considerations for the part 72 final rule that
subsequent to issuing the final revision of part 72, part 170 would be
amended to clarify that full cost fees will be assessed for amendments
and inspections related to the storage of reactor-related GTCC waste
under part 72. Therefore, the NRC is revising Category 1.B. of
Sec. 170.31 to specifically include storage of reactor-related GTCC
waste licensed under part 72. Category 1.B. of Sec. 170.31 previously
referred only to specific licenses for receipt and storage of spent
fuel at an independent storage installation.
3. Fee Adjustments
The NRC is adjusting the current part 170 fees in Secs. 170.21 and
170.31 to reflect the changes in the revised hourly rates. The full
cost fees assessed under Secs. 170.21 and 170.31 are based on the
professional hourly rates and any direct program support (contractual
services) costs expended by the NRC. Any professional hours expended on
or after the effective date of the final rule will be assessed at the
FY 2002 hourly rates.
The fees in Secs. 170.21 and 170.31 that are based on the average
time to review an application (``flat'' fees) have been adjusted to
reflect the increase in the professional hourly rates from FY 2001. The
amounts of the materials licensing ``flat'' fees are rounded as
follows: fees under $1,000 are rounded to the nearest $10; fees that
are greater than $1,000 but less than $100,000 are rounded to the
nearest $100; and fees that are greater than $100,000 are rounded to
the nearest $1,000.
The licensing ``flat'' fees are applicable to fee categories K.1
through K.5 of Sec. 170.21, and fee categories 1C, 1D, 2B, 2C, 3A
through 3P, 4B through 9D, 10B, 15A through 15E, and 16 of Sec. 170.31.
Applications filed on or after the effective date of the final rule
will be subject to the revised fees in this final rule.
4. Fee Waivers
In the FY 2001 final fee rule (66 FR 32452; June 14, 2001), the NRC
revised criterion (c) of Footnote 4 to Sec. 170.21 and criterion (c) of
Footnote 5 to Sec. 170.31 to clarify that fees will not be assessed for
requests or reports submitted to the NRC as a means of exchanging
information between industry organizations and the NRC for the purpose
of supporting the NRC's generic regulatory improvements or efforts.
However, the NRC has continued to receive requests for fee exemptions
that do not meet the intent of the waiver provisions. In addition,
Footnote 4 to Sec. 170.21, Footnote 5 to Sec. 170.31, and material in
the definition of Special Projects in Sec. 170.3 concerning these types
of requests and reports provide information that is more suitable for
inclusion in Sec. 170.11, Exemptions.
Therefore, the NRC is deleting Footnote 4 to Sec. 170.21 and
Footnote 5 to Sec. 170.31, modifying the language that was in those
footnotes, and is adding the revised fee waiver provisions to the
Exemption section as Sec. 170.11(a)(1). The NRC is also removing the
language relating to certain reports and requests submitted to the NRC
for review from the definition of Special Projects in Sec. 170.3. The
fee waiver provisions have been revised to specifically state that the
fee waiver criteria apply only when it has been demonstrated that the
report or request has been submitted to the NRC for the specific
purpose of supporting the generic regulatory improvements or efforts of
the NRC, rather than the industry, and that the NRC, at the time of the
submission, plans to use the submission for that purpose. The
modification also clarifies that the waiver provisions do not apply to
reports or documents submitted for the NRC's review that the NRC, at
the time of the submission, does not plan to use to improve its
regulatory program, and that therefore will primarily provide only a
special benefit to identifiable recipients, such as the industry,
vendors, or specific licensees. These criteria will allow the NRC to
make waiver determinations soon after the documents are submitted. As
provided in Sec. 170.5, fee exemption requests should be made to the
NRC's Chief Financial Officer. To further assist applicants in
determining in advance whether their submittals meet the fee waiver
criteria, specific examples of the

[[Page 42622]]

types of submissions that meet the fee waiver criteria and those that
do not are provided in Sec. 170.11(a)(1).
In summary, the NRC is amending 10 CFR part 170 to--
1. Revise the materials and reactor program FTE hourly rates;
2. Revise the licensing fees to be assessed to reflect the revised
hourly rates;
3. Revise fee category 1.B. of Sec. 170.31 to clarify that full
cost fees will be assessed for amendments and inspections related to
the storage of GTCC Waste under part 72; and
4. Add to Sec. 170.11, Exemptions, the fee waiver provisions that
are currently in Footnote 4 to Sec. 170.21 and Footnote 5 to
Sec. 170.31, and clarify the fee waiver provisions currently in
criterion (c) of these Footnotes. These Footnotes, as well as material
in the definition of Special Projects in Sec. 170.3 related to certain
special requests and reports submitted to NRC for review, have been
deleted.

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

The NRC is revising the annual fees for FY 2002, amending part 171
to specifically cover combined licenses issued under part 52,
clarifying the annual fee exemption provision for reactors, and
modifying the methodology for allocating the uranium recovery annual
fee amount among the types of uranium recovery licenses. As explained
previously, the final annual fees for this year reflect the
Commission's decision that the FY 2002 budgeted costs for the MOX
contested hearing should be assessed to all licensees in their annual
fees, instead of being charged only to the fuel facility class of
licensees. Accordingly, these costs have been treated as a fee
adjustment and assessed to all classes of licensees based on their
respective percentages of the NRC's budget. The amendments are as
follows.
1. Annual Fees
The NRC is establishing rebaselined annual fees for FY 2002. The
Commission's policy commitment, made in the statement of considerations
accompanying the FY 1995 fee rule (60 FR 32225; June 20, 1995), and
further explained in the statement of considerations accompanying the
FY 1999 fee rule (64 FR 31448; June 10, 1999), establishes that base
annual fees will be re-established (rebaselined) at least every third
year, and more frequently if there is a substantial change in the total
NRC budget or in the magnitude of the budget allocated to a specific
class of licenses. The fees were last rebaselined in FY 2001. Based on
the change in the magnitude of the budget to be recovered through fees,
the Commission has determined that it is appropriate to rebaseline the
annual fees again this year. Rebaselining fees will result in increased
annual fees for all classes of licenses, except for the non-power
reactor and spent fuel storage/reactor decommissioning classes, which
will have annual fee decreases.
The annual fees in Secs. 171.15 and 171.16 are revised for FY 2002
to recover approximately 96 percent of the NRC's FY 2002 budget
authority, less the estimated amount to be recovered through part 170
fees and the amounts appropriated from the NWF and the General Fund.
The total amount to be recovered through annual fees for FY 2002 is
$345.6 million, compared to $331.6 million for FY 2001.
The FY 2002 annual fees reflect an increase for most categories of
licenses and decrease for others from the previous year. The increases
in annual fees range from approximately 4.9 percent for the power
reactor class to approximately 129 percent for rare earth facilities.
The decreases in annual fees range from approximately 3.5 percent for
non-power reactors, to approximately 17 percent for the Title II
uranium recovery specific licenses. The final annual fees reflect the
revised estimates for part 170 collections for FY 2002. The final
annual fees have also been adjusted to reflect the Commission's
decision that, for FY 2002 only, the budgeted costs for the MOX
contested hearing should be assessed to all classes of licensees in
their annual fees. For the proposed rule, these costs were assessed
only to the fuel facility class of licensees. As a result, the amount
assessed to the fuel facility class has decreased by approximately
$408,000, while the total amount assessed to most of the other classes
of licensees has increased correspondingly. Thus, the amounts assessed
to each of the affected classes for the FY 2002 MOX contested hearing
costs are as follows: operating reactors--$345,000; spent fuel storage/
reactor decommissioning--$33,000; non-power reactors--$400; fuel
facility--$25,000; materials users--$19,000; transportation--$5,000;
rare earth facilities--$1000; and uranium recovery--$4,000. Due to
rounding, the annual fees for certain individual licensees in some of
the affected classes did not change.
Factors affecting the changes to the annual fee amounts from FY
2001 include changes in budgeted costs for the different classes of
licenses, the reduction in the fee recovery rate from 98 percent for FY
2001 to 96 percent for FY 2002, the estimated part 170 collections for
the various classes of licenses, a $1.7 million carryover from
additional collections in FY 2001 that were unanticipated at the time
the final FY 2001 fee rule was published (compared to a $3.1 million
carryover from FY 2000 which reduced FY 2001 annual fees), the
increased hourly rates, and decreases in the numbers of licensees for
certain categories of licenses. In addition, the decreases for the
Title II uranium recovery specific licenses are based on a change to
the methodology for allocating the annual fee amount for the uranium
recovery class among Title I and Title II licenses. This change is
described in detail in section B below.
In addition, for some classes of materials licenses, a change in
policy for assigning Project Managers (PMs) has contributed to the
annual fee increases. In the last few years, part 170 fees have
increased for certain classes of licenses due to initiatives to recover
costs for additional activities through fees for services rather than
annual fees. One such initiative was the policy for full cost recovery
under part 170 for PMs, which became effective with the FY 1999 final
fee rule (64 FR 31448; June 10, 1999). However, in response to concerns
expressed by materials licensees, the Office of Nuclear Material Safety
and Safeguards (NMSS) in July 2001 changed its policy for assigning
PMs. The revised NMSS policy has resulted in classifying approximately
four staff members as PMs at this time, compared to approximately 97 in
FY 2000. Under NMSS's revised policy, if project management duties to
support a licensee/facility do not exceed 75 percent of the assigned
person's time for any given two week period, then the staff member will
be considered a ``Point of Contact.'' As a result, that person's time
which is not specifically associated with a licensing action or
inspection is now recovered under part 171.
Although the change in policy for assigning PMs causes a decrease
in estimated part 170 collections for some classes, it also results in
more of the budgeted costs for that class being recovered through
annual fees. However, the change does not result in an increase in
total fees paid by these classes. Licensees in the rare earth

[[Page 42623]]

facility class, for example, have an annual fee increase of
approximately 129 percent, although the total budgeted costs for the
class actually decreased from FY 2001. The increase in annual fees is
primarily the result of the change in PM policy which caused a shift in
cost recovery from part 170 to part 171. The effect of this change on
the part 170 fees, part 171 fees, and the total fees for the class
compared to FY 2001 is illustrated in Table III below.

Table III.--Fees for the Rare Earth Class For FY 2001 and FY 2002
[In millions]
------------------------------------------------------------------------
FY 2001 FY 2002 Difference
------------------------------------------------------------------------
Estimated part 170 fees.......... $.81 $.50 -$.31
Total annual fee amount.......... .09 .21 +.12
--------------------------------------
Total........................ .90 .71 -.19
------------------------------------------------------------------------

Table IV below shows the rebaselined annual fees for FY 2002 for
representative categories of licenses.

Table IV.--Rebaselined Annual Fees for FY 2002
------------------------------------------------------------------------
FY 2002
Class/category of licenses Annual fee
------------------------------------------------------------------------
Operating Power Reactors (including Spent Fuel Storage/ $2,849,000
Reactor Decommissioning annual fee)....................
Spent Fuel Storage/Reactor Decommissioning.............. 239,000
Nonpower Reactors....................................... 71,400
High Enriched Uranium Fuel Facility..................... 3,834,000
Low Enriched Uranium Fuel Facility...................... 1,286,000
UF₆ Conversion Facility................................. 551,000
Uranium Mills........................................... 77,900
Transportation:
Users/Fabricators................................... 72,900
Users Only.......................................... 7,300
Typical Materials Users:
Radiographers....................................... 13,700
Well Loggers........................................ 10,000
Gauge Users......................................... 2,700
Broad Scope Medical................................. 26,100
------------------------------------------------------------------------

The annual fees assessed to each class of licenses include a
surcharge to recover those NRC budgeted costs that are not directly or
solely attributable to the classes of licenses, but must be recovered
from licensees to comply with the requirements of OBRA-90, as amended.
Based on the FY 2001 Energy and Water Appropriations Act which amended
OBRA-90 to decrease the NRC's fee recovery amount by 2 percent per year
beginning in FY 2001, until the fee recovery amount is 90 percent in FY
2005, the total surcharge costs for FY 2002 are reduced by about $20.0
million. The total FY 2002 budgeted costs for these activities and the
reduction to these amounts for fee recovery purposes are shown in Table
V. Due to rounding, adding the individual numbers in the table may
result in a total that is slightly different than the one shown.

Table V.--Surcharge Costs
[Dollars in millions]
------------------------------------------------------------------------
FY 2002
Category of costs budgeted
costs
------------------------------------------------------------------------
1. Activities not attributable to an existing NRC licensee
or class of licensee:
a. International activities............................ $8.4
b. Agreement State oversight........................... 8.7
c. Low-level waste disposal generic activities......... 1.5
d. Site decommissioning management plan activities not 8.3
recovered under part 170..............................
2. Activities not assessed part 170 licensing and
inspection fees or part 171 annual fees based on existing
law or Commission policy:
a. Fee exemption for nonprofit educational institutions 7.9
b. Licensing and inspection activities associated with 3.7
other Federal agencies................................
c. Costs not recovered from small entities under 10 CFR 4.5
171.16(c).............................................
3. Activities supporting NRC operating licensees and
others:
a. Regulatory support to Agreement States.............. 13.0
b. Generic decommissioning/reclamation (except those 8.3
related to power reactors)............................
------------
Total surcharge costs.............................. 64.4
Less 4 percent of NRC's FY 2002 total budget (minus NWF and -20.0
General Fund amounts).....................................
------------
Total Surcharge Costs to be Recovered.................. 44.4
------------------------------------------------------------------------

[[Page 42624]]

As shown in Table V, the total surcharge cost allocated to the
various classes of licenses for FY 2002 is $44.4 million. The NRC has
continued to allocate the surcharge costs, except Low-Level Waste (LLW)
surcharge costs, to each class of licenses based on the percent of the
budget for that class. The NRC has continued to allocate the LLW
surcharge costs based on the volume of LLW disposed of by certain
classes of licenses. The surcharge costs allocated to each class are
included in the annual fee assessed to each licensee. The FY 2002 final
surcharge costs allocated to each class of licenses are shown in Table
VI. Due to rounding, adding the individual numbers in the table may
result in a total that is slightly different than the one shown.

Table VI.--Allocation of Surcharge
----------------------------------------------------------------------------------------------------------------
LLW surcharge Non-LLW surcharge Total
---------------------------------------------------- surcharge
Percent $,M Percent $,M $,M
----------------------------------------------------------------------------------------------------------------
Operating Power Reactors....................... 74 1.1 79.7 34.1 35.3
Spent Fuel Storage/Reactor Decomm.............. ........... ........... 7.7 3.3 3.3
Nonpower Reactors.............................. ........... ........... 0.1 0.0 0.0
Fuel Facilities................................ 8 0.1 5.8 2.5 2.6
Materials Users................................ 18 0.3 4.5 1.9 2.2
Transportation................................. ........... ........... 1.3 0.5 0.5
Rare Earth Facilities.......................... ........... ........... 0.2 0.1 0.1
Uranium Recovery............................... ........... ........... 0.9 0.4 0.4
----------------------------------------------------------------
Total Surcharge............................ 100 1.5 100.0 42.9 44.4
----------------------------------------------------------------------------------------------------------------

The budgeted costs allocated to each class of licenses and the
calculations of the rebaselined fees are described in A. through H.
below. The work papers which support this final rule show in detail the
allocation of NRC's budgeted resources for each class of licenses and
how the fees are calculated. The work papers are available
electronically at the NRC's Public Electronic Reading Room on the
Internet at Web site address http://www.nrc.gov/reading-rm/adams.html. For
a period of 90 days after the effective date of this final rule, the
work papers may also be examined at the NRC Public Document Room
located at One White Flint North, Room O-1F22, 11555 Rockville Pike,
Rockville, MD 20852-2738.
Because the FY 2002 fee rule is a ``major'' final action as defined
by the Small Business Regulatory Enforcement Fairness Act of 1996, the
NRC's fees for FY 2002 will become effective 60 days after publication
of the final rule in the Federal Register. The NRC will send an invoice
for the amount of the annual fee upon publication of the FY 2002 final
rule to reactors and major fuel cycle facilities. For these licensees,
payment will be due on the effective date of the FY 2002 rule. Those
materials licensees whose license anniversary date during FY 2002 falls
before the effective date of the FY 2002 final rule will be billed for
the annual fee during the anniversary month of the license, and
continue to pay annual fees at the FY 2001 rate in FY 2002. However,
those materials licensees whose license anniversary date falls on or
after the effective date of the FY 2002 final rule will be billed for
the annual fee at the FY 2002 rate during the anniversary month of the
license, and payment will be due on the date of the invoice.

A. Fuel Facilities

The FY 2002 budgeted costs to be recovered in annual fees assessed
to the fuel facility class of licenses is approximately $17.7 million.
This amount includes the LLW and other surcharges allocated to the fuel
facility class. The costs are allocated to the individual fuel facility
licensees based on the fuel facility matrix established in the FY 1999
final fee rule (64 FR 31448; June 10, 1999). In this matrix, licensees
are grouped into five categories according to their licensed activities
(i.e., nuclear material enrichment, processing operations, and material
form) and according to the level, scope, depth of coverage, and rigor
of generic regulatory programmatic effort applicable to each category
from a safety and safeguards perspective. This methodology can be
applied to determine fees for new and current licensees, licensees in
unique license situations, and certificate holders.
The methodology allows for changes in the number of licensees or
certificate holders, licensed-certified material/activities, and total
programmatic resources to be recovered through annual fees. When a
license or certificate is modified, this fuel facility fee methodology
may result in a change in fee category and may have an effect on the
fees assessed to other licensees and certificate holders. For example,
if a fuel facility licensee amended its license/certificate in such a
way that it resulted in the licensee not being subject to part 171 fees
applicable to fuel facilities, the budgeted costs included in the
annual fee will be spread among the remaining licensees/certificate
holders, and result in a higher fee for those remaining in that fee
category.
Prior to the beginning of FY 2002, one low enriched uranium fuel
facility permanently ceased licensed operations and filed for an
amendment to place its license in a decommissioning status. The annual
fees for the fuel facility class reflect this change in the number of
licensees subject to annual fees.
The methodology is applied as follows. First, a fee category is
assigned based on the nuclear material and activity authorized by the
license or certificate. Although a licensee/ certificate holder may
elect not to fully utilize a license/certificate, it is still used as
the basis for determining authorized nuclear material possession and
use/activity. Next, the category and license/certificate information
are used to determine where the licensee/certificate holder fits into
the matrix. The matrix depicts the categorization of licensee/
certificate holders by authorized material types and use/activities and
the relative programmatic effort associated with each category. The
programmatic effort (expressed as a numeric value in the matrix)
reflects the safety and safeguards risk significance associated with
the nuclear material and use/activity, and the commensurate generic
regulatory program (i.e., scope, depth, and rigor).
The effort factors for the various subclasses of fuel facility
licenses are summarized in Table VII below.

[[Page 42625]]

Table VII.--Effort Factors for Fuel Facilities
----------------------------------------------------------------------------------------------------------------
Effort factors
Facility type Number of --------------------------------------------------------
facilities Safety Safeguards
----------------------------------------------------------------------------------------------------------------
High Enriched Uranium Fuel............... 2 91 (36.0%) 76 (57.1%)
Enrichment............................... 2 70 (27.7%) 34 (25.6%)
Low Enriched Uranium Fuel................ 3 66 (26.1%) 18 (13.5%)
UF₆ Conversion........................... 1 12 (4.7%) 0 (0%)
Limited Operations Facility.............. 1 8 (3.2%) 3 (2.3%)
Others................................... 1 6 (2.4%) 2 (1.5%)
----------------------------------------------------------------------------------------------------------------

Applying these factors to the safety, safeguards, and surcharge
components of the $17.7 million total annual fee amount for the fuel
facility class results in the annual fees for each licensee within the
subcategories of this class summarized in the table below.

Table VIII.--Annual Fees for Fuel Facilities
------------------------------------------------------------------------
FY 2002
Facility type annual fee
---------------------------------------------------------------------
High Enriched Uranium Fuel.......................... $3,834,000
Uranium Enrichment.................................. 2,387,000
Low Enriched Uranium................................ 1,286,000
UF ₆ Conversion..................................... 551,000
Limited Operations Facility......................... 505,000
Others.............................................. 367,000
------------------------------------------------------------------------

B. Uranium Recovery Facilities

The FY 2002 budgeted costs, including surcharge costs, to be
recovered through annual fees assessed to the uranium recovery class is
approximately $1.7 million. Based on the following change in the way
NRC allocates these costs, approximately $1.0 million of this amount
will be assessed to DOE. The remaining $0.7 million will be recovered
through annual fees assessed to conventional mills, in-situ leach
solution mining facilities, and 11e.(2) mill tailings disposal
facilities.
The NRC has adopted the revised methodology for allocating uranium
recovery budgeted costs to be recovered through annual fees among the
two major types of programs in the uranium recovery class. The first
type is the NRC's Title I program for DOE sites under the Uranium Mill
Tailings Radiation Control Act (UMTRCA) of 1978. The second type is the
NRC's UMTRCA Title II program; specifically, commercial solution mining
facilities, conventional mills, and 11e.(2) mill tailings disposal
facilities. Although the Title I program is part of the uranium
recovery class, DOE has not previously been assessed a portion of the
NRC budgeted costs attributed to generic/other activities for the
uranium recovery program. As a consequence, licensees under the NRC's
specific licensing program (UMTRCA Title II) were previously assessed
the entire cost of these activities.
In recognizing that the uranium recovery class is comprised of two
types of licensees falling under either the NRC's Title I or Title II
program, the Commission determined that it is appropriate to divide the
generic and other costs included in the uranium recovery annual fee
evenly among the two programs. Furthermore, DOE stands to gain from
NRC's generic regulatory efforts because DOE eventually will also
accept the Title II specifically licensed sites under a general license
from the NRC for long term surveillance and care.
Therefore, the methodology allocates the total annual fee amount,
less the amounts specifically budgeted for Title I activities, equally
between Title I and Title II licensees. This results in an annual fee
being assessed to DOE to recover the costs specifically budgeted for
NRC's Title I activities plus 50 percent of the remaining annual fee
amount, including the surcharge, for the uranium recovery class. The
remaining surcharge, generic, and other costs are to be assessed to the
NRC Title II program licensees that are subject to annual fees. The
costs to be recovered through annual fees assessed to the uranium
recovery class are shown below. Due to rounding, adding the individual
numbers in the table may result in a total that is slightly different
than the one shown.

DOE Annual Fee Amount (UMTRCA Title I and Title II
general licenses):
UMTRCA Title I budgeted costs................... $377,232
50% of generic/other uranium recovery budgeted 491,173
costs..........................................
50% of uranium recovery surcharge............... 189,509
-----------------
Total Annual Fee Amount for DOE............. $1,057,914
Annual Fee Amount for UMTRCA Title II Specific
Licenses:
50% of generic/other uranium recovery budgeted $491,173
costs..........................................
50% of uranium recovery surcharge............... 189,509
-----------------
Total Annual Fee Amount for Title II $680,682
Specific Licenses..........................

The costs allocated to the various categories of Title II specific
licensees are based on the uranium recovery matrix established in the
FY 1999 final fee rule (64 FR 31448; June 10, 1999). The methodology
for establishing part

[[Page 42626]]

171 annual fees for Title II uranium recovery licensees has not changed
and is as follows:
(1) The methodology identifies three categories of licenses:
conventional uranium mills (Class I facilities), uranium solution
mining facilities (Class II facilities), and mill tailings disposal
facilities (11e.(2) disposal facilities). Each of these categories
benefits from the generic uranium recovery program efforts (e.g.,
rulemakings, staff guidance documents);
(2) The matrix relates the category and the level of benefit by
program element and subelement;
(3) The two major program elements of the generic uranium recovery
program are activities related to facility operations and those related
to facility closure;
(4) Each of the major program elements was further divided into
three subelements;
(5) The three major subelements of generic activities associated
with uranium facility operations are regulatory efforts related to the
operation of mills, handling and disposal of waste, and prevention of
groundwater contamination. The three major subelements of generic
activities associated with uranium facility closure are regulatory
efforts related to decommissioning of facilities and land clean-up,
reclamation and closure of tailings impoundments, and groundwater
clean-up. Weighted values were assigned to each program element and
subelement considering health and safety implications and the
associated effort to regulate these activities. The applicability of
the generic program in each subelement to each uranium recovery
category was qualitatively estimated as either significant, some,
minor, or none.
The relative weighted factors per facility type for the various
subclasses of specifically licensed Title II uranium recovery licensees
are as follows:

Table IX.--Weighted Factors for Uranium Recovery Licenses
----------------------------------------------------------------------------------------------------------------
Level of benefit
--------------------------------------
Facility type Number of Total weight
facilities Category -------------------------
weight Value Percent
----------------------------------------------------------------------------------------------------------------
Class I (conventional mills)................................ 3 770 2,310 34
Class II (solution mining).................................. 6 645 3,870 58
11e.(2) disposal............................................ 1 475 475 7
11e.(2) disposal incident to existing tailings sites........ 1 75 75 1
----------------------------------------------------------------------------------------------------------------

Applying these factors to the $0.7 million in budgeted costs to be
recovered from Title II specific licensees results in the following
annual fees:

Table X.--Annual Fees for Title II Specific Licenses
------------------------------------------------------------------------
FY 2002
Facility type annual fee
------------------------------------------------------------------------
Class I (conventional mills)............................ $77,900
Class II (solution mining).............................. 65,200
11e.(2) disposal........................................ 48,000
11e.(2) disposal incidental to existing tailings sites.. 7,600
------------------------------------------------------------------------

In the FY 2001 final rule (66 FR 32478, June 14, 2001), the NRC
revised Sec. 171.19 to establish a quarterly billing schedule for the
Class I and Class II licensees, regardless of the annual fee amount.
Therefore, as provided in Sec. 171.19(b), if the amounts collected in
the first three quarters of FY 2002 exceed the amount of the revised
annual fee, the overpayment will be refunded. The remaining categories
of Title II facilities are subject to billing based on the anniversary
date of the license as provided in Sec. 171.19(c).

C. Power Reactors

The approximately $271.4 million in budgeted costs to be recovered
through FY 2002 annual fees assessed to the power reactor class is
divided equally among the 104 power reactors licensed to operate. This
results in a FY 2002 annual fee of $2,610,000 per reactor.
Additionally, each power reactor licensed to operate will be assessed
the FY 2002 spent fuel storage/reactor decommissioning annual fee of
$239,000. This results in a total FY 2002 annual fee of $2,849,000 for
each power reactor licensed to operate.

D. Spent Fuel Storage/Reactor Decommissioning

For FY 2002, budgeted costs of approximately $28.9 million for
spent fuel storage/reactor decommissioning are to be recovered through
annual fees assessed to part 50 power reactors, and to part 72
licensees who do not hold a part 50 license. Those reactor licensees
that have ceased operations and have no fuel onsite are not subject to
these annual fees. The cost is divided equally among the 121 licensees,
resulting in a FY 2002 annual fee of $239,000 per license.

E. Non-Power Reactors

Approximately $285,400 in budgeted costs is to be recovered through
annual fees assessed to the non-power reactor class of licenses for FY
2002. This amount is divided equally among the four non-power reactors
subject to annual fees. This results in a FY 2002 annual fee of $71,400
for each licensee.

F. Rare Earth Facilities

The FY 2002 budgeted costs of approximately $205,900 for rare earth
facilities to be recovered through annual fees is divided equally among
the three licensees who have a specific license for receipt and
processing of source material. The result is a FY 2002 annual fee of
$68,600 for each rare earth facility.
As explained previously, the increase in annual fees for the rare
earth class is not the result of increased budgeted costs for the
class, but rather the result of the change in NMSS's revised PM policy,
which resulted in a shift of cost recovery for certain activities from
part 170 to part 171.

[[Page 42627]]

G. Materials Users

To equitably and fairly allocate the $25.0 million in FY 2002
budgeted costs to be recovered in annual fees assessed to the
approximately 5,000 diverse materials users and registrants, the NRC
has continued to use the FY 1999 methodology to establish baseline
annual fees for this class. The annual fees are based on the part 170
application fees and an estimated cost for inspections. Because the
application fees and inspection costs are indicative of the complexity
of the license, this approach continues to provide a proxy for
allocating the generic and other regulatory costs to the diverse
categories of licenses based on how much it costs the NRC to regulate
each category. The fee calculation also continues to consider the
inspection frequency (priority), which is indicative of the safety risk
and resulting regulatory costs associated with the categories of
licenses. The annual fee for these categories of licenses is developed
as follows:

Annual fee = Constant x [Application Fee + (Average Inspection Cost
divided by Inspection Priority)]
+ Inspection Multiplier x (Average
Inspection Cost divided by Inspection Priority) + Unique Category
Costs.

The constant is the multiple necessary to recover approximately
$17.4 million in general costs and is 1.07 for FY 2002. The inspection
multiplier is the multiple necessary to recover approximately $5.3
million in inspection costs for FY 2002, and is 1.1 for FY 2002. The
unique category costs are any special costs that the NRC has budgeted
for a specific category of licenses. For FY 2002, of the unique costs
attributable to medical licensees for the medical development program,
approximately $126,900 is allocated to NRC medical licensees.
The annual fee assessed to each licensee also includes a share of
the $1.9 million in surcharge costs allocated to the materials user
class of licenses and, for certain categories of these licenses, a
share of the approximately $300,000 in LLW surcharge costs allocated to
the class. The annual fee for each fee category is shown in
Sec. 171.16(d).
1. Transportation
Of the approximately $4.8 million in FY 2002 budgeted costs to be
recovered through annual fees assessed to the transportation class of
licenses, approximately $1.4 million will be recovered from annual fees
assessed to DOE based on the number of part 71 Certificates of
Compliance that it holds. Of the remaining $3.4 million, approximately
25 percent is allocated to the 77 quality assurance plans authorizing
use only and the 39 quality assurance plans authorizing use and design/
fabrication. The remaining 75 percent is allocated only to the 39
quality assurance plans authorizing use and design/fabrication. This
results in an annual fee of $7,300 for each of the holders of quality
assurance plans that authorize use only, and an annual fee of $72,900
for each of the holders of quality assurance plans that authorize use
and design/fabrication.
2. Part 52 Combined Licenses
The NRC is revising part 171 to: authorize assessment of annual
fees for holders of combined licenses issued under part 52; clarify
that the annual fees will be assessed for each license, and not for
each unit; and establish when assessment of annual fees will begin.
Part 171 previously covered annual fees for part 50 licenses, but
did not specifically cover annual fees for combined licenses issued
under part 52. Additionally, neither part 52 nor part 171 addressed
when NRC would begin to assess an annual fee to a part 52 license
holder. The NRC is revising Sec. 171.3 ``Scope'' to specify that the
annual fee regulations also apply to any person holding a combined
license issued under part 52.
The annual fees for a part 52 combined license will be assessed
only after construction has been completed, all regulatory requirements
have been met, and the Commission has authorized operation of the
reactor(s). This approach is consistent with the Commission's policy of
not imposing annual fees on those entities only holding a power reactor
construction permit.
Previously, Sec. 171.15(a) provided that reactor licensees shall
pay an annual fee ``* * * for each unit for each license held * * *''.
It is the agency's present practice to charge annual fees per license,
and the NRC is revising Sec. 171.15(a) to clarify that the annual fees
are assessed for each license, and not for each unit.
At this time, the NRC is not establishing a specific annual fee
category or amount for part 52 combined licenses because there are no
existing combined licenses issued under part 52. However, the NRC is
making these changes so potential applicants for a part 52 combined
license are aware that such a license will be subject to annual fees in
the future.
3. Fee Exemption for Reactors in 10 CFR 171.11
The NRC is modifying Sec. 171.11(c) to clarify that the annual fee
exemption provision applies only to reactors licensed to operate. This
change is consistent with the statement of considerations in the 1986
final fee rule (51 FR 33224; September 18, 1986), which added this
specific fee exemption to the regulation. Therein the Commission stated
it had considered calculating the annual fee for power reactors with
``operating'' licenses based on the thermal megawatt ratings of those
reactors. However, the Commission decided against determining its fees
based on the size of the reactor because the NRC found no necessary
relationship between the thermal megawatt rating of a reactor and the
agency's regulatory costs. Nevertheless, the NRC stated because it was
not the Commission's intent to promulgate a fee schedule that would
have the effect of forcing smaller, older reactors to shut down, it was
adding an annual fee exemption provision in Sec. 171.11 which takes
reactor size, age, and other relevant factors into consideration. In
the section-by-section analysis for Sec. 171.11, the NRC stated that
the added exemption section ``* * * provides that the holder of a
license to `operate' a power reactor * * * may apply to the Commission
for partial relief from annual fee[s].''
In the FY 1999 final fee rule (64 FR 31448; June 10, 1999), the NRC
established the Spent Fuel Storage/Reactor Decommissioning (SFSRD)
class with an annual fee to be assessed to all reactor licensees having
fuel onsite, regardless of their operating status. In the statement of
considerations for the FY 1999 fee rule, the NRC stated that the
Commission determined all reactors, including those which are shut
down, should pay the SFSRD annual fee to recover the NRC's costs
related to generic reactor decommissioning and spent fuel storage
activities. It is clear from the statement of considerations that the
Commission did not intend to relieve reactors that are not operating
from the annual fee requirements unless they had permanently ceased
operations and had no fuel onsite.
The Commission reemphasizes that all communications concerning
annual fees, including exemption requests, should be addressed to the
Chief Financial Officer, U.S. NRC, Washington, DC 20555-0001 in
accordance with Sec. 171.9.

[[Page 42628]]

4. Administrative Amendment
The NRC is modifying Category 1.B. of Sec. 171.16(d) to
specifically include licenses issued under part 72 for reactor-related
GTCC waste. This is an administrative change that is being made only to
ensure consistency with the description for fee category 1.B. of
Sec. 170.31 as described in A. above. The NRC is not establishing an
annual fee for this category of license.
In summary, the NRC has--
1. Established rebaselined annual fees for FY 2002;
2. Modified part 171 to specifically authorize assessment of annual
fees for part 52 combined licenses;
3. Clarified that the annual fee exemption provision in
Sec. 171.11(c) applies only to reactors licensed to operate;
4. Made an administrative change to fee category 1.B. of
Sec. 171.16(d) to be consistent with the change to category 1.B. of
Sec. 170.31.

IV. Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995, Pub.
L. 104-113, requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
using such a standard is inconsistent with applicable law or is
otherwise impractical. In this final rule, the NRC is amending the
licensing, inspection, and annual fees charged to its licensees and
applicants as necessary to recover approximately 96 percent of its
budget authority in FY 2002 as is required by the Omnibus Budget
Reconciliation Act of 1990, as amended. This action does not constitute
the establishment of a standard that contains generally applicable
requirements.

V. Environmental Impact: Categorical Exclusion

The NRC has determined that this final rule is the type of action
described in categorical exclusion 10 CFR 51.22(c)(1). Therefore,
neither an environmental assessment nor an environmental impact
statement has been prepared for the final regulation. By its very
nature, this regulatory action does not affect the environment and,
therefore, no environmental justice issues are raised.

VI. Paperwork Reduction Act Statement

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

VII. Regulatory Analysis

With respect to 10 CFR part 170, this final rule was developed
pursuant to Title V of the Independent Offices Appropriation Act of
1952 (IOAA) (31 U.S.C. 9701) and the Commission's fee guidelines. When
developing these guidelines the Commission took into account guidance
provided by the U.S. Supreme Court on March 4, 1974, in National Cable
Television Association, Inc. v. United States, 415 U.S. 36 (1974) and
Federal Power Commission v. New England Power Company, 415 U.S. 345
(1974). In these decisions, the Court held that the IOAA authorizes an
agency to charge fees for special benefits rendered to identifiable
persons measured by the ``value to the recipient'' of the agency
service. The meaning of the IOAA was further clarified on December 16,
1976, by four decisions of the U.S. Court of Appeals for the District
of Columbia: National Cable Television Association v. Federal
Communications Commission, 554 F.2d 1094 (D.C. Cir. 1976); National
Association of Broadcasters v. Federal Communications Commission, 554
F.2d 1118 (D.C. Cir. 1976); Electronic Industries Association v.
Federal Communications Commission, 554 F.2d 1109 (D.C. Cir. 1976); and
Capital Cities Communication, Inc. v. Federal Communications
Commission, 554 F.2d 1135 (D.C. Cir. 1976). The Commission's fee
guidelines were developed based on these legal decisions.
The Commission's fee guidelines were upheld on August 24, 1979, by
the U.S. Court of Appeals for the Fifth Circuit in Mississippi Power
and Light Co. v. U.S. Nuclear Regulatory Commission, 601 F.2d 223 (5th
Cir. 1979), cert. denied, 444 U.S. 1102 (1980). This court held that--
(1) The NRC had the authority to recover the full cost of providing
services to identifiable beneficiaries;
(2) The NRC could properly assess a fee for the costs of providing
routine inspections necessary to ensure a licensee's compliance with
the Atomic Energy Act and with applicable regulations;
(3) The NRC could charge for costs incurred in conducting
environmental reviews required by NEPA;
(4) The NRC properly included the costs of uncontested hearings and
of administrative and technical support services in the fee schedule;
(5) The NRC could assess a fee for renewing a license to operate a
low-level radioactive waste burial site; and
(6) The NRC's fees were not arbitrary or capricious.
With respect to 10 CFR part 171, on November 5, 1990, the Congress
passed Pub. L. 101-508, the Omnibus Budget Reconciliation Act of 1990
(OBRA-90), which required that, for FYs 1991 through 1995,
approximately 100 percent of the NRC budget authority be recovered
through the assessment of fees. OBRA-90 was subsequently amended to
extend the 100 percent fee recovery requirement through FY 2000. The FY
2001 Energy and Water Development Appropriations Act amended OBRA-90 to
decrease the NRC's fee recovery amount by 2 percent per year beginning
in FY 2001, until the fee recovery amount is 90 percent in FY 2005. The
NRC's fee recovery amount for FY 2002 is 96 percent. To comply with
this statutory requirement and in accordance with Sec. 171.13, the NRC
is publishing the amount of the FY 2002 annual fees for reactor
licensees, fuel cycle licensees, materials licensees, and holders of
Certificates of Compliance, registrations of sealed source and devices
and QA program approvals, and Government agencies. OBRA-90, consistent
with the accompanying Conference Committee Report, and the amendments
to OBRA-90, provide that--
(1) The annual fees be based on approximately 96 percent of the
Commission's FY 2002 budget of $559.1 million less the amounts
collected from part 170 fees and funds directly appropriated from the
NWF to cover the NRC's high level waste program;
(2) The annual fees shall, to the maximum extent practicable, have
a reasonable relationship to the cost of regulatory services provided
by the Commission; and
(3) The annual fees be assessed to those licensees the Commission,
in its discretion, determines can fairly, equitably, and practicably
contribute to their payment.
In addition, $36.0 million has been appropriated from the General
Fund for activities related to homeland security. The FY 2002 Defense
Appropriations Act states that this $36.0 million shall be excluded
from license fee revenues.
10 CFR part 171, which established annual fees for operating power
reactors effective October 20, 1986 (51 FR 33224; September 18, 1986),
was challenged and upheld in its entirety in Florida Power and Light
Company v. United States, 846 F.2d 765 (D.C. Cir. 1988), cert. denied,
490 U.S. 1045 (1989). Further, the NRC's FY 1991 annual fee rule
methodology was upheld by the D.C. Circuit Court of Appeals in Allied
Signal v. NRC, 988 F.2d 146 (D.C. Cir. 1993).

[[Page 42629]]

VIII. Regulatory Flexibility Analysis

The NRC is required by the Omnibus Budget Reconciliation Act of
1990, as amended, to recover approximately 96 percent of its FY 2002
budget authority through the assessment of user fees. This act further
requires that the NRC establish a schedule of charges that fairly and
equitably allocates the aggregate amount of these charges among
licensees.
This final rule establishes the schedules of fees that are
necessary to implement the Congressional mandate for FY 2002. The final
rule results in increases in the annual fees charged to certain
licensees and holders of certificates, registrations, and approvals,
and decreases in annual fees for others. Licensees affected by the
annual fee increases and decreases include those that qualify as a
small entity under NRC's size standards in 10 CFR 2.810. The Regulatory
Flexibility Analysis, prepared in accordance with 5 U.S.C. 604, is
included as Appendix A to this final rule.
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) was signed into law on March 29, 1996. The SBREFA requires all
Federal agencies to prepare a written compliance guide for each rule
for which the agency is required by 5 U.S.C. 604 to prepare a
regulatory flexibility analysis. Therefore, in compliance with the law,
Attachment 1 to the Regulatory Flexibility Analysis is the small entity
compliance guide for FY 2002.

IX. Backfit Analysis

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

X. Small Business Regulatory Enforcement Fairness Act

In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, Pub. L. 104-121, the NRC has determined that this
action is a major rule and has verified the determination with the
Office of Information and Regulatory Affairs of the Office of
Management and Budget.

List of Subjects

10 CFR Part 170

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

10 CFR Part 171

Annual charges, Byproduct material, Holders of certificates,
Registrations, Approvals, Intergovernmental relations, Non-payment
penalties, Nuclear materials, Nuclear power plants and reactors, Source
material, Special nuclear material.

For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended; the Energy Reorganization
Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting
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: sec. 9701, Pub. L. 97-258, 96 Stat. 1051 (31 U.S.C.
9701); sec. 301, Pub. L. 92-314, 86 Stat. 227 (42 U.S.C. 2201w);
sec. 201, Pub. L. 93-438, 88 Stat. 1242, as amended (42 U.S.C.
5841); sec. 205a, Pub. L. 101-576, 104 Stat. 2842, as amended (31
U.S.C. 901, 902).

2. Section 170.3 is amended by revising the definition of Special
projects and adding in alphabetical order, the definition for Greater
than Class C Waste or GTCC Waste to read as follows:

Sec. 170.3 Definitions.

* * * * *
Greater than Class C Waste or GTCC Waste means low-level
radioactive waste that exceeds the concentration limits of
radionuclides established for Class C waste in 10 CFR 61.55.
* * * * *
Special projects means those requests submitted to the Commission
for review for which fees are not otherwise specified in this chapter.
Examples of special projects include, but are not limited to, topical
report reviews, early site reviews, waste solidification facilities,
route approvals for shipment of radioactive materials, services
provided to certify licensee, vendor, or other private industry
personnel as instructors for part 55 reactor operators, reviews of
financial assurance submittals that do not require a license amendment,
reviews of responses to Confirmatory Action Letters, reviews of uranium
recovery licensees' land-use survey reports, and reviews of 10 CFR
50.71 final safety analysis reports.
* * * * *

3. In Sec. 170.11, paragraph (a)(1) is added to read as follows:

Sec. 170.11 Exemptions.

(a) * * *
(1) A special project that is a request/report submitted to the
NRC--
(i) In response to a Generic Letter or NRC Bulletin that does not
result in an amendment to the license, does not result in the review of
an alternate method or reanalysis to meet the requirements of the
Generic Letter, or does not involve an unreviewed safety issue;
(ii) In response to an NRC request (at the Associate Office
Director level or above) to resolve an identified safety, safeguards,
or environmental issue, or to assist NRC in developing a rule,
regulatory guide, policy statement, generic letter, or bulletin; or
(iii) As a means of exchanging information between industry
organizations and the NRC for the specific purpose of supporting the
NRC's generic regulatory improvements or efforts.
(A) This fee exemption applies only when:
(1) It has been demonstrated that the report/request has been
submitted to the NRC specifically for the purpose of supporting NRC's
development of generic guidance and regulations (e.g., rules,
regulations, guides and policy statements); and
(2) The NRC, at the time the document is submitted, plans to use it
for one of the purposes given in paragraph (a)(1)(iii)(A)(1) of this
section. In this case, the exemption applies even if ultimately the NRC
does not use the document as planned.
(B) An example of the type of document that meets the fee exemption
criteria is a topical report that is submitted to the NRC for the
specific purpose of supporting the NRC's development of a Regulatory
Guide, and which the NRC plans to use in the development of that
Regulatory Guide.
(C) Fees will not be waived for reports/requests that are not
submitted specifically for the purpose of supporting the NRC's generic
regulatory improvements or efforts, because the primary beneficiary of
the NRC's review and approval of such documents is the requesting
organization. In this case, the

[[Page 42630]]

waiver provision does not apply even though the NRC may realize some
benefits from its review and approval of the document.
(D) An example of the type of document that does not meet the fee
waiver criteria is a topical report submitted for the purpose of
obtaining NRC approval so that the report can be used by the industry
in the future to address licensing or safety issues.
* * * * *
4. Section 170.20 is revised to read as follows:

Sec. 170.20 Average cost per professional staff-hour.

Fees for permits, licenses, amendments, renewals, special projects,
part 55 re-qualification and replacement examinations and tests, other
required reviews, approvals, and inspections under Secs. 170.21 and
170.31 will be calculated using the following applicable professional
staff-hour rates:

(a) Reactor Program (Sec. 170.21 $156 per hour.
Activities).
(b) Nuclear Materials and Nuclear Waste $152 per hour.
Program (Sec. 170.31 Activities).

5. In Sec. 170.21, the introductory text, and in the table,
Category J, Category K, and footnotes 1, 2, and 3 to the table are
revised and footnote 4 is removed to read as follows:

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

Applicants for construction permits, manufacturing licenses,
operating licenses, import and export licenses, approvals of facility
standard reference designs, re-qualification and replacement
examinations for reactor operators, and special projects and holders of
construction permits, licenses, and other approvals shall pay fees for
the following categories of services:

Schedule of Facility Fees
(See footnotes at end of table)
------------------------------------------------------------------------
Facility categories and type of fees Fees\1\ \2\
------------------------------------------------------------------------

* * * *
* * *
J. Special projects:
Approvals and preapplication/licensing Full Cost.
activities.
Inspections\3\............................. Full Cost.
K. Import and export licenses:
Licenses for the import and export only of
production and utilization facilities or
the export only of components for
production and utilization facilities
issued under 10 CFR part 110.
1. Application for import or export of
reactors and other facilities and
exports of components which must be
reviewed by the Commissioners and the
Executive Branch, for example, actions
under 10 CFR 110.40(b)
Application--new license........... $9,900
Amendment.......................... $9,900
2. Application for export of reactor
and other components requiring
Executive Branch review only, for
example, those actions under 10 CFR
110.41(a)(1)-(8)
Application--new license........... $5,800
Amendment.......................... $5,800
3. Application for export of components
requiring foreign government
assurances only
Application--new license........... $1,800
Amendment.......................... $1,800
4. Application for export of facility
components and equipment not requiring
Commissioner review, Executive Branch
review, or foreign government
assurances
Application--new license........... $1,200
Amendment.......................... $1,200
5. Minor amendment of any export or
import license to extend the
expiration date, change domestic
information, or make other revisions
which do not require in-depth analysis
or review
Amendment.......................... $230
------------------------------------------------------------------------
\1\ Fees will not be charged for orders issued by the Commission under
Sec. 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., 10 CFR 50.12, 73.5) and any other sections in
effect now or in the future, regardless of whether the approval is in
the form of a license amendment, letter of approval, safety evaluation
report, or other form. Fees for licenses in this schedule that are
initially issued for less than full power are based on review through
the issuance of a full power license (generally full power is
considered 100 percent of the facility's full rated power). Thus, if a
licensee received a low power license or a temporary license for less
than full power and subsequently receives full power authority (by way
of license amendment or otherwise), the total costs for the license
will be determined through that period when authority is granted for
full power operation. If a situation arises in which the Commission
determines that full operating power for a particular facility should
be less than 100 percent of full rated power, the total costs for the
license will be at that determined lower operating power level and not
at the 100 percent capacity.
\2\ Full cost fees will be determined based on the professional staff
time and appropriate contractual support services expended. For
applications currently on file and for which fees are determined based
on the full cost expended for the review, the professional staff hours
expended for the review of the application up to the effective date of
the final rule will be determined at the professional rates in effect
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 Sec. 170.20, as appropriate, except
for topical reports whose costs exceed $50,000. Costs which exceed
$50,000 for any topical report, amendment, revision or supplement to a
topical report completed or under review from January 30, 1989,
through August 8, 1991, will not be billed to the applicant. Any
professional hours expended on or after August 9, 1991, will be
assessed at the applicable rate established in Sec. 170.20.
\3\ Inspections covered by this schedule are both routine and non-
routine safety and safeguards inspections performed by NRC for the
purpose of review or follow-up of a licensed program. Inspections are
performed through the full term of the license to ensure that the
authorized activities are being conducted in accordance with the
Atomic Energy Act of 1954, as amended, other legislation, Commission
regulations or orders, and the terms and conditions of the license.
Non-routine inspections that result from third-party allegations will
not be subject to fees.

[[Page 42631]]

6. Section 170.31 is revised to read as follows:

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

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. The following 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 fees
\1\ Fees \2\ \3\
------------------------------------------------------------------------
1. Special nuclear material:
A. Licenses for possession and use of 200
grams or more of plutonium in unsealed
form or 350 grams or more of contained U-
235 in unsealed form or 200 grams or more
of U-233 in unsealed form. This includes
applications to terminate licenses as well
as licenses authorizing possession only:
Licensing and Inspection............... Full Cost.
B. Licenses for receipt and storage of
spent fuel and/or reactor-related Greater
than Class C (GTCC) waste at an
independent spent fuel storage
installation (ISFSI):
Licensing and inspection............... Full Cost.
C. Licenses for possession and use of
special nuclear material in sealed sources
contained in devices used in industrial
measuring systems, including x-ray
fluorescence analyzers: \4\
Application............................ $700
D. All other special nuclear material
licenses, except licenses authorizing
special nuclear material in unsealed form
in combination that would constitute a
critical quantity, as defined in Sec.
150.11 of this chapter, for which the
licensee shall pay the same fees as those
for Category 1A: \4\
Application............................ $1,400
E. Licenses or certificates for
construction and operation of a uranium
enrichment facility:
Licensing and inspection............... Full Cost.
2. Source material:
A.(1) Licenses for possession and use of
source material in recovery operations
such as milling, in-situ leaching, heap-
leaching, refining uranium mill
concentrates to uranium hexafluoride, ore
buying stations, and ion exchange
facilities, and in processing of ores
containing source material for extraction
of metals other than uranium or thorium,
including licenses authorizing the
possession of byproduct waste material
(tailings) from source material recovery
operations, as well as licenses
authorizing the possession and maintenance
of a facility in a standby mode:
Licensing and inspection............... Full Cost.
(2) Licenses that authorize the receipt of
byproduct material, as defined in Section
11e(2) of the Atomic Energy Act, from
other persons for possession and disposal
except those licenses subject to fees in
Category 2A(1):
Licensing and inspection............... Full Cost.
(3) Licenses that authorize the receipt of
byproduct material, as defined in Section
11e.(2) of the Atomic Energy Act, from
other persons for possession and disposal
incidental to the disposal of the uranium
waste tailings generated by the licensee's
milling operations, except those licenses
subject to the fees in Category 2A(1):
Licensing and inspection............... Full Cost.
B. Licenses which authorize the possession,
use, and/or installation of source
material for shielding:
Application............................ $170
C. All other source material licenses:
Application............................ $6,000
3. Byproduct material:
A. Licenses of broad scope for the
possession and use of byproduct material
issued under parts 30 and 33 of this
chapter for processing or manufacturing of
items containing byproduct material for
commercial distribution:
Application............................ $7,100
B. Other licenses for possession and use of
byproduct material issued under part 30 of
this chapter for processing or
manufacturing of items containing
byproduct material for commercial
distribution:
Application............................ $2,300
C. Licenses issued under Secs. 32.72,
32.73, and/or 32.74 of this chapter that
authorize the processing or manufacturing
and distribution or redistribution of
radiopharmaceuticals, generators, reagent
kits, and/or sources and devices
containing byproduct material. This
category does not apply to licenses issued
to nonprofit educational institutions
whose processing or manufacturing is
exempt under Sec. 170.11(a)(4). These
licenses are covered by fee Category 3D.
Application............................ $9,200
D. Licenses and approvals issued under
Secs. 32.72, 32.73, and/or 32.74 of this
chapter authorizing distribution or
redistribution of radiopharmaceuticals,
generators, reagent kits, and/or sources
or devices not involving processing of
byproduct material. This category includes
licenses issued under Secs. 32.72, 32.73,
and/or 32.74 of this chapter to nonprofit
educational institutions whose processing
or manufacturing is exempt under Sec.
170.11(a)(4).
Application............................ $2,600
E. Licenses for possession and use of
byproduct material in sealed sources for
irradiation of materials in which the
source is not removed from its shield
(self-shielded units):
Application............................ $1,800
F. Licenses for possession and use of less
than 10,000 curies of byproduct material
in sealed sources for irradiation of
materials in which the source is exposed
for irradiation purposes. This category
also includes underwater irradiators for
irradiation of materials where the source
is not exposed for irradiation purposes.
Application............................ $3,600
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.

[[Page 42632]]

Application............................ $8,500
H. Licenses issued under Subpart A of part
32 of this chapter to distribute items
containing byproduct material that require
device review to persons exempt from the
licensing requirements of part 30 of this
chapter. The category does not include
specific licenses authorizing
redistribution of items that have been
authorized for distribution to persons
exempt from the licensing requirements of
part 30 of this chapter:
Application............................ $2,400
I. Licenses issued under Subpart A of part
32 of this chapter to distribute items
containing byproduct material or
quantities of byproduct material that do
not require device evaluation to persons
exempt from the licensing requirements of
part 30 of this chapter. This category
does not include specific licenses
authorizing redistribution of items that
have been authorized for distribution to
persons exempt from the licensing
requirements of part 30 of this chapter:
Application............................ $3,600
J. Licenses issued under Subpart B of part
32 of this chapter to distribute items
containing byproduct material that require
sealed source and/or device review to
persons generally licensed under part 31
of this chapter. This category does not
include specific licenses authorizing
redistribution of items that have been
authorized for distribution to persons
generally licensed under part 31 of this
chapter:
Application............................ $1,100
K. Licenses issued under Subpart B of part
32 of this chapter to distribute items
containing byproduct material or
quantities of byproduct material that do
not require sealed source and/or device
review to persons generally licensed under
part 31 of this chapter. This category
does not include specific licenses
authorizing redistribution of items that
have been authorized for distribution to
persons generally licensed under part 31
of this chapter:
Application............................ $620
L. Licenses of broad scope for possession
and use of byproduct material issued under
parts 30 and 33 of this chapter for
research and development that do not
authorize commercial distribution:
Application............................ $6,000
M. Other licenses for possession and use of
byproduct material issued under part 30 of
this chapter for research and development
that do not authorize commercial
distribution:
Application............................ $2,600
N. Licenses that authorize services for
other licensees, except:
(1) Licenses that authorize only
calibration and/or leak testing
services are subject to the fees
specified in fee Category 3P; and
(2) Licenses that authorize waste
disposal services are subject to the
fees specified in fee Categories 4A,
4B, and 4C:
Application........................ $2,700
O. Licenses for possession and use of
byproduct material issued under part 34 of
this chapter for industrial radiography
operations:
Application............................ $4,400
P. All other specific byproduct material
licenses, except those in Categories 4A
through 9D:
Application............................ $1,400
Q. Registration of a device(s) generally
licensed under part 31 of this chapter:
Registration $450
4. Waste disposal and processing:
A. Licenses specifically authorizing the
receipt of waste byproduct material,
source material, or special nuclear
material from other persons for the
purpose of contingency storage or
commercial land disposal by the licensee;
or licenses authorizing contingency
storage of low-level radioactive waste at
the site of nuclear power reactors; or
licenses for receipt of waste from other
persons for incineration or other
treatment, packaging of resulting waste
and residues, and transfer of packages to
another person authorized to receive or
dispose of waste material:
Licensing and inspection............... Full Cost.
B. Licenses specifically authorizing the
receipt of waste byproduct material,
source material, or special nuclear
material from other persons for the
purpose of packaging or repackaging the
material. The licensee will dispose of the
material by transfer to another person
authorized to receive or dispose of the
material:
Application............................ $1,800
C. Licenses specifically authorizing the
receipt of prepackaged waste byproduct
material, source material, or special
nuclear material from other persons. The
licensee will dispose of the material by
transfer to another person authorized to
receive or dispose of the material:
Application............................ $2,700
5. Well logging:
A. Licenses for possession and use of
byproduct material, source material, and/
or special nuclear material for well
logging, well surveys, and tracer studies
other than field flooding tracer studies:
Application............................ $5,900
B. Licenses for possession and use of
byproduct material for field flooding
tracer studies:
Licensing.............................. Full Cost.
6. Nuclear laundries:
A. Licenses for commercial collection and
laundry of items contaminated with
byproduct material, source material, or
special nuclear material:
Application............................ $12,100
7. Medical licenses:
A. Licenses issued under parts 30, 35, 40,
and 70 of this chapter for human use of
byproduct material, source material, or
special nuclear material in sealed sources
contained in teletherapy devices:
Application............................ $6,600
B. Licenses of broad scope issued to
medical institutions or two or more
physicians under parts 30, 33, 35, 40, and
70 of this chapter authorizing research
and development, including human use of
byproduct material, except licenses for
byproduct material, source material, or
special nuclear material in sealed sources
contained in teletherapy devices:

[[Page 42633]]

Application............................ $4,700
C. Other licenses issued under parts 30,
35, 40, and 70 of this chapter for human
use of byproduct material, source
material, and/or special nuclear material,
except licenses for byproduct material,
source material, or special nuclear
material in sealed sources contained in
teletherapy devices:
Application............................ $2,300
8. Civil defense:
A. Licenses for possession and use of
byproduct material, source material, or
special nuclear material for civil defense
activities:
Application............................ $350
9. Device, product, or sealed source safety
evaluation:
A. Safety evaluation of devices or products
containing byproduct material, source
material, or special nuclear material,
except reactor fuel devices, for
commercial distribution:
Application--each device............... $5,600
B. Safety evaluation of devices or products
containing byproduct material, source
material, or special nuclear material
manufactured in accordance with the unique
specifications of, and for use by, a
single applicant, except reactor fuel
devices:
Application--each device............... $5,600
C. Safety evaluation of sealed sources
containing byproduct material, source
material, or special nuclear material,
except reactor fuel, for commercial
distribution:
Application--each source............... $1,700
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............... $580
10. Transportation of radioactive material:
A. Evaluation of casks, packages, and
shipping containers:
Licensing and inspections.............. Full Cost.
B. Evaluation of 10 CFR part 71 quality
assurance programs:
Application............................ $680
Inspections............................ Full Cost.
11. Review of standardized spent fuel
facilities:
Licensing and inspection................... Full Cost.
12. Special projects:
Approvals and preapplication/Licensing Full Cost.
activities.
Inspections................................ Full Cost.
13. A. Spent fuel storage cask Certificate of Full Cost.
Compliance: Licensing.
B. Inspections related to spent fuel Full Cost.
storage cask Certificate of Compliance.
C. Inspections related to storage of spent Full Cost.
fuel under Sec. 72.210 of this chapter.
14. Byproduct, source, or special nuclear
material licenses and other approvals
authorizing decommissioning, decontamination,
reclamation, or site restoration activities
under parts 30, 40, 70, 72, and 76 of this
chapter:
Licensing and inspection................... Full Cost.
15. Import and Export licenses:
Licenses issued under part 110 of this
chapter for the import and export only of
special nuclear material, source material,
tritium and other byproduct material,
heavy water, or nuclear grade graphite.
A. Application for export or import of high
enriched uranium and other materials,
including radioactive waste, which must be
reviewed by the Commissioners and the
Executive Branch, for example, those
actions under 10 CFR 110.40(b). This
category includes application for export
or import of radioactive wastes in
multiple forms from multiple generators or
brokers in the exporting country and/or
going to multiple treatment, storage or
disposal facilities in one or more
receiving countries.
Application--new license............... $9,900
Amendment.............................. $9,900
B. Application for export or import of
special nuclear material, source material,
tritium and other byproduct material,
heavy water, or nuclear grade graphite,
including radioactive waste, requiring
Executive Branch review but not
Commissioner review. This category
includes application for the export or
import of radioactive waste involving a
single form of waste from a single class
of generator in the exporting country to a
single treatment, storage and/or disposal
facility in the receiving country.
Application--new license............... $5,800
Amendment.............................. $5,800
C. Application for export of routine
reloads of low enriched uranium reactor
fuel and exports of source material
requiring only foreign government
assurances under the Atomic Energy Act.
Application--new license............... $1,800
Amendment.............................. $1,800
D. Application for export or import of
other materials, including radioactive
waste, not requiring Commissioner review,
Executive Branch review, or foreign
government assurances under the Atomic
Energy Act. This category includes
application for export or import of
radioactive waste where the NRC has
previously authorized the export or import
of the same form of waste to or from the
same or similar parties, requiring only
confirmation from the receiving facility
and licensing authorities that the
shipments may proceed according to
previously agreed understandings and
procedures.
Application--new license............... $1,200
Amendment.............................. $1,200
E. Minor amendment of any export or import
license to extend the expiration date,
change domestic information, or make other
revisions which do not require in-depth
analysis, review, or consultations with
other agencies or foreign governments.
Amendment.............................. $230
16. Reciprocity:

[[Page 42634]]

Agreement State licensees who conduct
activities under the reciprocity
provisions of 10 CFR 150.20.
Application............................ $1,400
------------------------------------------------------------------------
\1\ Types of fees--Separate charges, as shown in the schedule, will be
assessed for pre-application consultations and reviews and
applications for new licenses and approvals, issuance of new licenses
and approvals, certain amendments and renewals to existing licenses
and approvals, safety evaluations of sealed sources and devices,
generally licensed device registrations, and certain inspections. The
following guidelines apply to these charges:
(a) Application and registration fees. Applications for new materials
licenses and export and import licenses; applications to reinstate
expired, terminated, or inactive licenses except those subject to fees
assessed at full costs; applications filed by Agreement State
licensees to register under the general license provisions of 10 CFR
150.20; and applications for amendments to materials licenses that
would place the license in a higher fee category or add a new fee
category must be accompanied by the prescribed application fee for
each category.
(1) Applications for licenses covering more than one fee category of
special nuclear material or source material must be accompanied by the
prescribed application fee for the highest fee category.
(2) Applications for new licenses that cover both byproduct material and
special nuclear material in sealed sources for use in gauging devices
will pay the appropriate application fee for fee Category 1C only.
(b) Licensing fees. Fees for reviews of applications for new licenses
and for renewals and amendments to existing licenses, for pre-
application consultations and for reviews of other documents submitted
to NRC for review, and for project manager time for fee categories
subject to full cost fees (fee Categories 1A, 1B, 1E, 2A, 4A, 5B, 10A,
11, 12, 13A, and 14) are due upon notification by the Commission in
accordance with Sec. 170.12(b).
(c) Amendment fees. Applications for amendments to export and import
licenses must be accompanied by the prescribed amendment fee for each
license affected. An application for an amendment to a license or
approval classified in more than one fee category must be accompanied
by the prescribed amendment fee for the category affected by the
amendment unless the amendment is applicable to two or more fee
categories, in which case the amendment fee for the highest fee
category would apply.
(d) Inspection fees. Inspections resulting from investigations conducted
by the Office of Investigations and non-routine inspections that
result from third-party allegations are not subject to fees.
Inspection fees are due upon notification by the Commission in
accordance with Sec. 170.12(c).
(e) Generally licensed device registrations under 10 CFR 31.5.
Submittals of registration information must be accompanied by the
prescribed fee.
\2\ Fees will not be charged for orders issued by the Commission under
10 CFR 2.202 or for amendments resulting specifically from the
requirements of these types of Commission orders. However, fees will
be charged for approvals issued under a specific exemption provision
of the Commission's regulations under Title 10 of the Code of Federal
Regulations (e.g., 10 CFR 30.11, 40.14, 70.14, 73.5, and any other
sections in effect now or in the future), regardless of whether the
approval is in the form of a license amendment, letter of approval,
safety evaluation report, or other form. In addition to the fee shown,
an applicant may be assessed an additional fee for sealed source and
device evaluations as shown in Categories 9A through 9D.
\3\ Full cost fees will be determined based on the professional staff
time multiplied by the appropriate professional hourly rate
established in Sec. 170.20 in effect at the time the service is
provided, and the appropriate contractual support services expended.
For applications currently on file for which review costs have reached
an applicable fee ceiling established by the June 20, 1984, and July
2, 1990, rules, but are still pending completion of the review, the
cost incurred after any applicable ceiling was reached through January
29, 1989, will not be billed to the applicant. Any professional staff-
hours expended above those ceilings on or after January 30, 1989, will
be assessed at the applicable rates established by Sec. 170.20, as
appropriate, except for topical reports whose costs exceed $50,000.
Costs which exceed $50,000 for each topical report, amendment,
revision, or supplement to a topical report completed or under review
from January 30, 1989, through August 8, 1991, will not be billed to
the applicant. Any professional hours expended on or after August 9,
1991, will be assessed at the applicable rate established in Sec.
170.20.
\4\ Licensees paying fees under Categories 1A, 1B, and 1E are not
subject to fees under Categories 1C and 1D for sealed sources
authorized in the same license except for an application that deals
only with the sealed sources authorized by the license.

PART 171--ANNUAL FEES FOR REACTOR LICENSES AND FUEL CYCLE LICENSES
AND MATERIAL LICENSES, INCLUDING HOLDERS OF CERTIFICATES OF
COMPLIANCE, REGISTRATIONS, AND QUALITY ASSURANCE PROGRAM APPROVALS
AND GOVERNMENT AGENCIES LICENSED BY THE NRC

7. 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. 2132, as amended by sec. 6101, Pub.
L. 101-508, 104 Stat. 1388, as amended by sec. 2903a, Pub. L. 102-
486, 106 Stat. 3125 (42 U.S.C. 2213, 2214); sec. 301, Pub. L. 92-
314, 86 Stat. 227 (42 U.S.C. 2201w); sec. 201, Pub. L. 93-438, 88
Stat. 1242, as amended (42 U.S.C. 5841).

8. Section 171.3 is revised to read as follows:

Sec. 171.3. Scope.

The regulations in this part apply to any person holding a license
for a power reactor, test reactor or research reactor issued under part
50 of this chapter and to any person holding a combined license issued
under part 52 of this chapter that authorizes operation of a power
reactor. The regulations in this part also apply to any person holding
a materials license as defined in this part, a Certificate of
Compliance, a sealed source or device registration, a quality assurance
program approval, and to a Government agency as defined in this part.

9. In Sec. 171.5, the definition of Greater than Class C Waste or
GTCC Waste is added in alphabetical order to read as follows:

Sec. 171.5 Definitions.

* * * * *
Greater than Class C Waste or GTCC Waste means low-level
radioactive waste that exceeds the concentration limits of
radionuclides established for Class C waste in 10 CFR 61.55.
* * * * *

10. In Sec. 171.11, paragraph (c) is revised to read as follows:

Sec. 171.11 Exemptions.

* * * * *
(c) An exemption for reactors licensed to operate may be granted by
the Commission taking into consideration each of the following factors:
(1) Age of the reactor;
(2) Size of the reactor;
(3) Number of customers in rate base;
(4) Net increase in KWh cost for each customer directly related to
the annual fee assessed under this part; and
(5) Any other relevant matter which the licensee believes justifies
the reduction of the annual fee.
* * * * *

11. Section 171.15 is revised to read as follows:

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

(a) Each person licensed to operate a power, test, or research
reactor; each person holding a part 50 power reactor

[[Page 42635]]

license that is in decommissioning or possession only status, except
those that have no spent fuel on-site; and each person holding a part
72 license who does not hold a part 50 license shall pay the annual fee
for each license held at any time during the Federal FY in which the
fee is due. This paragraph does not apply to test and research reactors
exempted under Sec. 171.11(a).
(b)(1) The FY 2002 annual fee for power reactors licensed to
operate is $2,849,000.
(2) The FY 2002 annual fee is comprised of a base annual fee for
power reactors licensed to operate, a base spent fuel storage/reactor
decommissioning annual fee, and associated additional charges
(surcharges). The activities comprising the FY 2002 spent storage/
reactor decommissioning base annual fee are shown in paragraph
(c)(2)(i) and (ii) of this section. The activities comprising the FY
2002 surcharge are shown in paragraph (d)(1) of this section. The
activities comprising the FY 2002 base annual fee for operating power
reactors are as follows:
(i) Power reactor safety and safeguards regulation except licensing
and inspection activities recovered under part 170 of this chapter and
generic reactor decommissioning activities.
(ii) Research activities directly related to the regulation of
power reactors, except those activities specifically related to reactor
decommissioning.
(iii) Generic activities required largely for NRC to regulate power
reactors, e.g., updating part 50 of this chapter, or operating the
Incident Response Center. The base annual fee for operating power
reactors does not include generic activities specifically related to
reactor decommissioning.
(c)(1) The FY 2002 annual fee for each power reactor holding a part
50 license that is in a decommissioning or possession only status and
has spent fuel on-site and each independent spent fuel storage part 72
licensee who does not hold a part 50 license is $239,000.
(2) The FY 2002 annual fee is comprised of a base spent fuel
storage/reactor decommissioning annual fee (which is also included in
the operating power reactor annual fee shown in paragraph (b) of this
section), and an additional charge (surcharge). The activities
comprising the FY 2002 surcharge are shown in paragraph (d)(1) of this
section. The activities comprising the FY 2002 spent fuel storage/
reactor decommissioning rebaselined annual fee are:
(i) Generic and other research activities directly related to
reactor decommissioning and spent fuel storage; and
(ii) Other safety, environmental, and safeguards activities related
to reactor decommissioning and spent fuel storage, except costs for
licensing and inspection activities that are recovered under part 170
of this chapter.
(d)(1) The activities comprising the FY 2002 surcharge are as
follows:
(i) Low level waste disposal generic activities;
(ii) Activities not attributable to an existing NRC licensee or
class of licenses (e.g., international cooperative safety program and
international safeguards activities, support for the Agreement State
program, and site decommissioning management plan (SDMP) activities);
and
(iii) Activities not currently subject to 10 CFR part 170 licensing
and inspection fees based on existing law or Commission policy, e.g.,
reviews and inspections conducted of nonprofit educational
institutions, licensing actions for Federal agencies, and costs that
would not be collected from small entities based on Commission policy
in accordance with the Regulatory Flexibility Act, 5 U.S.C. 601 et seq.
(2) The total FY 2002 surcharge allocated to the operating power
reactor class of licenses is approximately $35.3 million, not including
the amount allocated to the spent fuel storage/reactor decommissioning
class. The FY 2002 operating power reactor surcharge to be assessed to
each power reactor licensed to operate is approximately $339,400. This
amount is calculated by dividing the total operating power reactor
surcharge ($35.3 million) by the number of power reactors licensed to
operate (104).
(3) The FY 2002 surcharge allocated to the spent fuel storage/
reactor decommissioning class of licenses is approximately $3.3
million. The FY 2002 spent fuel storage/reactor decommissioning
surcharge to be assessed to each power reactor licensed to operate,
each power reactor in decommissioning or possession only status that
has spent fuel onsite, and to each independent spent fuel storage part
72 licensee who does not hold a part 50 license is $27,300. This amount
is calculated by dividing the total surcharge costs allocated to this
class by the total number of power reactor licenses (except those that
permanently ceased operations and have no fuel on site) and part 72
licensees who do not hold a part 50 license.
(e) The FY 2002 annual fees for licensees authorized to operate a
non-power (test and research) reactor licensed under part 50 of this
chapter, unless the reactor is exempted from fees under Sec. 171.11(a),
are as follows:

Research reactor............................................. $71,400
Test reactor................................................. 71,400

12. In Sec. 171.16, paragraphs (c), (d), and (e) are revised to
read as follows:

Sec. 171.16 Annual Fees: Materials Licensees, Holders of Certificates
of Compliance, Holders of Sealed Source and Device Registrations,
Holders of Quality Assurance Program Approvals and Government Agencies
Licensed by the NRC.

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

------------------------------------------------------------------------
Maximum
annual fee
per
licensed
category
------------------------------------------------------------------------
Small businesses not engaged in manufacturing and small not-
for-profit organizations (gross annual receipts):
$350,000 to $5 million................................. $2,300
Less than $350,000..................................... 500
Manufacturing entities that have an average of 500
employees or less:
35 to 500 employees.................................... 2,300
Less than 35 employees................................. 500
Small governmental jurisdictions (including publicly
supported educational institutions) (population):
20,000 to 50,000....................................... 2,300
Less than 20,000....................................... 500
Educational institutions that are not State or publicly
supported, and have 500 employees or less:
35 to 500 employees.................................... 2,300
Less than 35 employees................................. 500
------------------------------------------------------------------------

(1) A licensee qualifies as a small entity if it meets the size
standards established by the NRC (See 10 CFR 2.810).
(2) A licensee who seeks to establish status as a small entity for
the purpose of paying the annual fees required under this section must
file a certification statement with the NRC. The licensee must file the
required certification on NRC Form 526 for each license under which it
is billed. NRC Form 526 can be accessed through the NRC's web site at

[[Page 42636]]

http://www.nrc.gov. For licensees who cannot access the NRC's web site,
NRC Form 526 may be obtained through the local point of contact listed
in the NRC's ``Materials Annual Fee Billing Handbook,'' NUREG/BR-0238,
which is enclosed with each annual fee billing. The form can also be
obtained by calling the fee staff at 301-415-7554, or by e-mailing the
fee staff at <fees@nrc.gov.£
(3) For purposes of this section, the licensee must submit a new
certification with its annual fee payment each year.
(4) The maximum annual fee a small entity is required to pay is
$2,300 for each category applicable to the license(s).
(d) The FY 2002 annual fees are comprised of a base annual fee and
an additional charge (surcharge). The activities comprising the FY 2002
surcharge are shown for convenience in paragraph (e) of this section.
The FY 2002 annual fees for materials licensees and holders of
certificates, registrations or approvals subject to fees under this
section are shown in the following table:

Schedule of Materials Annual Fees and Fees for Government Agencies
Licensed by NRC
[See footnotes at end of table]
------------------------------------------------------------------------
Category of materials licenses Annual fees 1
----------------------------------------------------------------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..................... $3,834,000
Nuclear Fuel Services SNM-124............... 3,834,000
(b) Low Enriched Uranium in Dispersible Form
Used for Fabrication of Power Reactor Fuel:
General Electric Company SNM-1097........... 1,286,000
Siemens Nuclear Power SNM-1227.............. 1,286,000
Westinghouse Electric Company SNM-1107...... 1,286,000
(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: 505,000
Framatome ANP SNM-1168.........................
(b) All Others: General Electric SNM-960........ 367,000
B. Licenses for receipt and storage of spent fuel \11\ N/A
and reactor-related Greater than Class C (GTCC)
waste at an independent spent fuel storage
installation (ISFSI)...............................
C. Licenses for possession and use of special 1,500
nuclear material in sealed sources contained in
devices used in industrial measuring systems,
including x-ray fluorescence analyzers.............
D. All other special nuclear material licenses, 3,600
except licenses authorizing special nuclear
material in unsealed form in combination that would
constitute a critical quantity, as defined in Sec.
150.11 of this chapter, for which the licensee
shall pay the same fees as those for Category
1.A.(2)............................................
E. Licenses or certificates for the operation of a 2,387,000
uranium enrichment facility........................
2. Source material:
A. (1) Licenses for possession and use of source 551,000
material for refining uranium mill concentrates to
uranium hexafluoride...............................
(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\.......................... 77,900
Class II facilities \4\......................... 65,200
Other facilities \4\............................ 68,600
(3) Licenses that authorize the receipt of byproduct 48,000
material, as defined in Section 11e.(2) of the
Atomic Energy Act, from other persons for
possession and disposal, except those licenses
subject to the fees in Category 2A(2) or Category
2A(4)..............................................
(4) Licenses that authorize the receipt of byproduct 7,600
material, as defined in Section 11e.(2) of the
Atomic Energy Act, from other persons for
possession and disposal incidental to the disposal
of the uranium waste tailings generated by the
licensee's milling operations, except those
licenses subject to the fees in Category 2A(2).....
B. Licenses that authorize only the possession, use 750
and/or installation of source material for
shielding..........................................
C. All other source material licenses............... 12,200
3. Byproduct material:
A. Licenses of broad scope for possession and use of 22,400
byproduct material issued under parts 30 and 33 of
this chapter for processing or manufacturing of
items containing byproduct material for commercial
distribution.......................................
B. Other licenses for possession and use of 5,700
byproduct material issued under part 30 of this
chapter for processing or manufacturing of items
containing byproduct material for commercial
distribution.......................................
C. Licenses issued under Secs. 32.72, 32.73, and/or 14,000
32.74 of this chapter authorizing the processing or
manufacturing and distribution or redistribution of
radiopharmaceuticals, generators, reagent kits and/
or sources and devices containing byproduct
material. This category also includes the
possession and use of source material for shielding
authorized under part 40 of this chapter when
included on the same license. This category does
not apply to licenses issued to nonprofit
educational institutions whose processing or
manufacturing is exempt under Sec. 171.11(a)(1).
These licenses are covered by fee Category 3D......
D. Licenses and approvals issued under Secs. 32.72, 4,500
32.73, and/or 32.74 of this chapter authorizing
distribution or redistribution of
radiopharmaceuticals, generators, reagent kits and/
or sources or devices not involving processing of
byproduct material. This category includes licenses
issued under Secs. 32.72, 32.73 and 32.74 of this
chapter to nonprofit educational institutions whose
processing or manufacturing is exempt under Sec.
171.11(a)(1). This category also includes the
possession and use of source material for shielding
authorized under part 40 of this chapter when
included on the same license.......................
E. Licenses for possession and use of byproduct 3,600
material in sealed sources for irradiation of
materials in which the source is not removed from
its shield (self-shielded units)...................

[[Page 42637]]

F. Licenses for possession and use of less than 6,500
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...................
G. Licenses for possession and use of 10,000 curies 23,100
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...................
H. Licenses issued under Subpart A of part 32 of 3,700
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............................................
I. Licenses issued under Subpart A of part 32 of 5,200
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....................................
J. Licenses issued under Subpart B of part 32 of 2,400
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...
K. Licenses issued under Subpart B of part 31 of 1,600
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.............
L. Licenses of broad scope for possession and use of 11,200
byproduct material issued under parts 30 and 33 of
this chapter for research and development that do
not authorize commercial distribution..............
M. Other licenses for possession and use of 4,800
byproduct material issued under part 30 of this
chapter for research and development that do not
authorize commercial distribution..................
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 5,300
services are subject to the fees specified in
fee Categories 4A, 4B, and 4C..................
O. Licenses for possession and use of byproduct 13,700
material issued under part 34 of this chapter for
industrial radiography operations. This category
also includes the possession and use of source
material for shielding authorized under part 40 of
this chapter when authorized on the same license...
P. All other specific byproduct material licenses, 2,700
except those in Categories 4A through 9D...........
Q. Registration of devices generally licensed \13\ N/A
pursuant to part 31 of this chapter................
4. Waste disposal and processing:
A. Licenses specifically authorizing the receipt of \5\ N/A
waste byproduct material, source material, or
special nuclear material from other persons for the
purpose of contingency storage or commercial land
disposal by the licensee; or licenses authorizing
contingency storage of low-level radioactive waste
at the site of nuclear power reactors; or licenses
for receipt of waste from other persons for
incineration or other treatment, packaging of
resulting waste and residues, and transfer of
packages to another person authorized to receive or
dispose of waste material..........................
B. Licenses specifically authorizing the receipt of 10,300
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............................
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 8,000
transfer to another person authorized to receive or
dispose of the material............................
5. Well logging:
A. Licenses for possession and use of byproduct 10,000
material, source material, and/or special nuclear
material for well logging, well surveys, and tracer
studies other than field flooding tracer studies...
B. Licenses for possession and use of byproduct \5\ N/A
material for field flooding tracer studies.........
6. Nuclear laundries:
A. Licenses for commercial collection and laundry of 19,100
items contaminated with byproduct material, source
material, or special nuclear material..............
7. Medical licenses:
A. Licenses issued under parts 30, 35, 40, and 70 of 15,400
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...................................
B. Licenses of broad scope issued to medical 26,100
institutions or two or more physicians under parts
30, 33, 35, 40, and 70 of this chapter authorizing
research and development, including human use of
byproduct material except licenses for byproduct
material, source material, or special nuclear
material in sealed sources contained in teletherapy
devices. This category also includes the possession
and use of source material for shielding when
authorized on the same license\9\..................
C. Other licenses issued under parts 30, 35, 40, and 5,100
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\................................
8. Civil defense:
A. Licenses for possession and use of byproduct 1,200
material, source material, or special nuclear
material for civil defense activities..............

[[Page 42638]]

9. Device, product, or sealed source safety evaluation:
A. Registrations issued for the safety evaluation of 6,700
devices or products containing byproduct material,
source material, or special nuclear material,
except reactor fuel devices, for commercial
distribution.......................................
B. Registrations issued for the safety evaluation of 6,700
devices or products containing byproduct material,
source material, or special nuclear material
manufactured in accordance with the unique
specifications of, and for use by, a single
applicant, except reactor fuel devices.............
C. Registrations issued for the safety evaluation of 2,000
sealed sources containing byproduct material,
source material, or special nuclear material,
except reactor fuel, for commercial distribution...
D. Registrations issued for the safety evaluation of 690
sealed sources containing byproduct material,
source material, or special nuclear material,
manufactured in accordance with the unique
specifications of, and for use by, a single
applicant, except reactor fuel.....................
10. Transportation of radioactive material:
A. Certificates of Compliance or other package
approvals issued for design of casks, packages, and
shipping containers.
Spent Fuel, High-Level Waste, and plutonium air \6\ N/A
packages.......................................
Other Casks..................................... \6\ N/A
B. Quality assurance program approvals issued under
part 71 of this chapter.
Users and Fabricators........................... 72,900
Users........................................... 7,300
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 \12\ N/A
10 CFR 72.210......................................
14. Byproduct, source, or special nuclear material \7\ N/A
licenses and other approvals authorizing
decommissioning, decontamination, reclamation, or site
restoration activities under parts 30, 40, 70, 72, and
76 of this chapter.....................................
15. Import and Export licenses.......................... \8\ N/A
16. Reciprocity......................................... \8\ N/A
17. Master materials licenses of broad scope issued to 283,000
Government agencies....................................
18. Department of Energy:
A. Certificates of Compliance....................... \10\ 1,370,000
B. Uranium Mill Tailing Radiation Control Act 1,058,000
(UMTRCA) activities................................
------------------------------------------------------------------------
\1\ Annual fees will be assessed based on whether a licensee held a
valid license with the NRC authorizing possession and use of
radioactive material during the current fiscal year. 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, 2001, and permanently ceased
licensed activities entirely by September 30, 2001. Annual fees for
licensees who filed for termination of a license, downgrade of a
license, or for a possession only license during the fiscal year and
for new licenses issued during the fiscal year will be prorated in
accordance with the provisions of Sec. 171.17. If a person holds more
than one license, certificate, registration, or approval, the annual
fee(s) will be assessed for each license, certificate, registration,
or approval held by that person. For licenses that authorize more than
one activity on a single license (e.g., human use and irradiator
activities), annual fees will be assessed for each category applicable
to the license. Licensees paying annual fees under Category 1A(1) are
not subject to the annual fees for Category 1C and 1D for sealed
sources authorized in the license.
\2\ Payment of the prescribed annual fee does not automatically renew
the license, certificate, registration, or approval for which the fee
is paid. Renewal applications must be filed in accordance with the
requirements of parts 30, 40, 70, 71, 72, or 76 of this chapter.
\3\ Each fiscal year, fees for these materials licenses will be
calculated and assessed in accordance with Sec. 171.13 and will be
published in the Federal Register for notice and comment.
\4\ A 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.
\5\ There are no existing NRC licenses in these fee categories. If NRC
issues a license for these categories, the Commission will consider
establishing an annual fee for this type of license.
\6\ Standardized spent fuel facilities, 10 CFR parts 71 and 72
Certificates of Compliance, and special reviews, such as topical
reports, are not assessed an annual fee because the generic costs of
regulating these activities are primarily attributable to users of the
designs, certificates, and topical reports.
\7\ Licensees in this category are not assessed an annual fee because
they are charged an annual fee in other categories while they are
licensed to operate.
\8\ No annual fee is charged because it is not practical to administer
due to the relatively short life or temporary nature of the license.
\9\ Separate annual fees will not be assessed for pacemaker licenses
issued to medical institutions who also hold nuclear medicine licenses
under Categories 7B or 7C.
\10\ This includes Certificates of Compliance issued to DOE that are not
under the Nuclear Waste Fund.
\11\ See Sec. 171.15(c).
\12\ See Sec. 171.15(c).
\13\ No annual fee is charged for this category because the cost of the
general license registration program will be recovered through 10 CFR
part 170 fees.

(e) The activities comprising the surcharge are as follows:
(1) LLW disposal generic activities;
(2) Activities not directly attributable to an existing NRC
licensee or class(es) of licenses; e.g., international cooperative
safety program and international safeguards activities; support for the
Agreement State program; Site Decommissioning Management Plan (SDMP)
activities; and
(3) Activities not currently assessed licensing and inspection fees
under 10 CFR part 170 based on existing law or Commission policy (e.g.,
reviews and inspections of nonprofit educational institutions and
reviews for Federal agencies; activities related to decommissioning and
reclamation; and costs that would not be collected from small entities
based on Commission policy in accordance with the

[[Page 42639]]

Regulatory Flexibility Act, 5 U.S.C. 601 et seq.).

Dated at Rockville, Maryland, this 13th day of June, 2002.

For the Nuclear Regulatory Commission.
Jesse L. Funches,
Chief Financial Officer.

Note: This Appendix will not appear in the Code of Federal
Regulations.

Appendix A to This Final Rule--Draft Regulatory Flexibility Analysis
for the Amendments to 10 CFR Part 170 (License Fees) and 10 CFR Part
171 (Annual Fees)

I. Background

The Regulatory Flexibility Act (RFA), as amended, (5 U.S.C. 601
et seq.) requires that agencies consider the impact of their
rulemakings on small entities and, consistent with applicable
statutes, consider alternatives to minimize these impacts on the
businesses, organizations, and government jurisdictions to which
they apply.
The NRC has established standards for determining which NRC
licensees qualify as small entities (10 CFR 2.810). These size
standards reflect the Small Business Administration's most common
receipts-based size standards and include a size standard for
business concerns that are manufacturing entities. The NRC uses the
size standards to reduce the impact of annual fees on small entities
by establishing a licensee's eligibility to qualify for a maximum
small entity fee. The small entity fee categories in Sec. 171.16(c)
of this final rule are based on the NRC's size standards.
From FY 1991 through FY 2000, the Omnibus Budget Reconciliation
Act (OBRA-90), as amended, required that the NRC recover
approximately 100 percent of its budget authority, less
appropriations from the Nuclear Waste Fund, by assessing license and
annual fees. The FY 2001 Energy and Water Development Appropriations
Act amended OBRA-90 to decrease the NRC's fee recovery amount by 2
percent per year beginning in FY 2001, until the fee recovery amount
is 90 percent in FY 2005. In addition, for FY 2002, $36 million has
been appropriated from the General Fund, and therefore not subject
to fee recovery, for activities related to homeland security. The
amount to be recovered for FY 2002 is approximately $479.5 million.
OBRA-90 requires that the schedule of charges established by
rule should fairly and equitably allocate the total amount to be
recovered from the NRC's licensees and be assessed under the
principle that licensees who require the greatest expenditure of
agency resources pay the greatest annual charges. Since FY 1991, the
NRC has complied with OBRA-90 by issuing a final rule that amends
its fee regulations. These final rules have established the
methodology used by NRC in identifying and determining the fees to
be assessed and collected in any given fiscal year.
In FY 1995, the NRC announced that, in order to stabilize fees,
annual fees would be adjusted only by the percentage change (plus or
minus) in NRC's total budget authority, adjusted for changes in
estimated collections for 10 CFR part 170 fees, the number of
licensees paying annual fees, and as otherwise needed to assure the
billed amounts resulted in the required collections. The NRC
indicated that if there were a substantial change in the total NRC
budget authority or the magnitude of the budget allocated to a
specific class of licenses, the annual fee base would be
recalculated.
In FY 2001, the NRC concluded that there had been significant
changes in the allocation of agency resources among the various
classes of licenses and established rebaselined annual fees for FY
2001.
Based on the change in the magnitude of the budget to be
recovered through fees, the Commission has determined that it is
appropriate to rebaseline its part 171 annual fees again in FY 2002.
Rebaselining fees results in increased annual fees for a majority of
the categories of licenses, and decreased annual fees for other
categories.
The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) is intended to reduce regulatory burdens imposed by Federal
agencies on small businesses, nonprofit organizations, and
governmental jurisdictions. SBREFA also provides Congress with the
opportunity to review agency rules before they go into effect. Under
this legislation, the NRC annual fee rule is considered a ``major''
rule and must be reviewed by Congress and the Comptroller General
before the rule becomes effective. SBREFA also requires that an
agency prepare a guide to assist small entities in complying with
each rule for which a final regulatory flexibility analysis is
prepared. This Regulatory Flexibility Analysis (RFA) and the small
entity compliance guide (Attachment 1) have been prepared for the FY
2002 fee rule as required by law.

II. Impact on Small Entities

The fee rule results in substantial fees being charged to those
individuals, organizations, and companies that are licensed by the
NRC, including those licensed under the NRC materials program. The
comments received on previous proposed fee rules and the small
entity certifications received in response to previous final fee
rules indicate that NRC licensees qualifying as small entities under
the NRC's size standards are primarily materials licensees.
Therefore, this analysis will focus on the economic impact of the
annual fees on materials licensees. About 20 percent of these
licensees (approximately 1,300 licensees for FY 2001) have requested
small entity certification in the past. A 1993 NRC survey of its
materials licensees indicated that about 25 percent of these
licensees could qualify as small entities under the NRC's size
standards.
The commenters on previous fee rulemakings consistently
indicated that the following results would occur if the proposed
annual fees were not modified:
1. Large firms would gain an unfair competitive advantage over
small entities. Commenters noted that small and very small companies
(``Mom and Pop'' operations) would find it more difficult to absorb
the annual fee than a large corporation or a high-volume type of
operation. In competitive markets, such as soils testing, annual
fees would put small licensees at an extreme competitive
disadvantage with their much larger competitors because the proposed
fees would be the same for a two-person licensee as for a large firm
with thousands of employees.
2. Some firms would be forced to cancel their licenses. A
licensee with receipts of less than $500,000 per year stated that
the proposed rule would, in effect, force it to relinquish its soil
density gauge and license, thereby reducing its ability to do its
work effectively. Other licensees, especially well-loggers, noted
that the increased fees would force small businesses to get rid of
the materials license altogether. Commenters stated that the
proposed rule would result in about 10 percent of the well-logging
licensees terminating their licenses immediately and approximately
25 percent terminating their licenses before the next annual
assessment.
3. Some companies would go out of business.
4. Some companies would have budget problems. Many medical
licensees noted that, along with reduced reimbursements, the
proposed increase of the existing fees and the introduction of
additional fees would significantly affect their budgets. Others
noted that, in view of the cuts by Medicare and other third party
carriers, the fees would produce a hardship and some facilities
would experience a great deal of difficulty in meeting this
additional burden.
Approximately 3,000 license, approval, and registration
terminations have been requested since the NRC first established
annual fees for materials licenses. Although some of these
terminations were requested because the license was no longer needed
or licenses or registrations could be combined, indications are that
other termination requests were due to the economic impact of the
fees.
To alleviate the significant impact of the annual fees on a
substantial number of small entities, the NRC considered the
following alternatives in accordance with the RFA, in developing
each of its fee rules since FY 1991.
1. Base fees on some measure of the amount of radioactivity
possessed by the licensee (e.g., number of sources).
2. Base fees on the frequency of use of the licensed radioactive
material (e.g., volume of patients).
3. Base fees on the NRC size standards for small entities.
The NRC has reexamined its previous evaluations of these
alternatives and continues to believe that establishment of a
maximum fee for small entities is the most appropriate and effective
option for reducing the impact of its fees on small entities.

III. Maximum Fee

The RFA and its implementing guidance do not provide specific
guidelines on what constitutes a significant economic impact on a
small entity; therefore, the NRC has no benchmark to assist it in
determining the amount or the percent of gross receipts that should
be charged to a small entity. In

[[Page 42640]]

developing the maximum small entity annual fee in FY 1991, the NRC
examined its 10 CFR part 170 licensing and inspection fees and
Agreement State fees for those fee categories which were expected to
have a substantial number of small entities. Six Agreement States,
Washington, Texas, Illinois, Nebraska, New York, and Utah, were used
as benchmarks in the establishment of the maximum small entity
annual fee in FY 1991. Because small entities in those Agreement
States were paying the fees, the NRC concluded that these fees did
not have a significant impact on a substantial number of small
entities. Therefore, those fees were considered a useful benchmark
in establishing the NRC maximum small entity annual fee.
The NRC maximum small entity fee was established as an annual
fee only. In addition to the annual fee, NRC small entity licensees
were required to pay amendment, renewal and inspection fees. In
setting the small entity annual fee, NRC ensured that the total
amount small entities paid annually would not exceed the maximum
paid in the six benchmark Agreement States.
Of the six benchmark states, the maximum Agreement State fee of
$3,800 in Washington was used as the ceiling for the total fees.
Thus the NRC's small entity fee was developed to ensure that the
total fees paid by NRC small entities would not exceed $3,800. Given
the NRC's FY 1991 fee structure for inspections, amendments, and
renewals, a small entity annual fee established at $1,800 allowed
the total fee (small entity annual fee plus yearly average for
inspections, amendments and renewal fees) for all categories to fall
under the $3,800 ceiling.
In FY 1992, the NRC introduced a second, lower tier to the small
entity fee in response to concerns that the $1,800 fee, when added
to the license and inspection fees, still imposed a significant
impact on small entities with relatively low gross annual receipts.
For purposes of the annual fee, each small entity size standard was
divided into an upper and lower tier. Small entity licensees in the
upper tier continued to pay an annual fee of $1,800 while those in
the lower tier paid an annual fee of $400.
Based on the changes that had occurred since FY 1991, the NRC
re-analyzed its maximum small entity annual fees in FY 2000, and
determined that the small entity fees should be increased by 25
percent to reflect the increase in the average fees paid by other
materials licensees since FY 1991 as well as changes in the fee
structure for materials licensees. The structure of the fees that
NRC charged to its materials licensees changed during the period
between 1991 and 1999. Costs for materials license inspections,
renewals, and amendments, which were previously recovered through
part 170 fees for services, are now included in the part 171 annual
fees assessed to materials licensees. As a result, the maximum small
entity annual fee increased from $1,800 to $2,300 in FY 2000. By
increasing the maximum annual fee for small entities from $1,800 to
$2,300, the annual fee for many small entities was reduced while at
the same time materials licensees, including small entities, would
pay for most of the costs attributable to them. The costs not
recovered from small entities are allocated to other materials
licensees and to power reactors.
While reducing the impact on many small entities, the NRC
determined that the maximum annual fee of $2,300 for small entities
may continue to have a significant impact on materials licensees
with annual gross receipts in the thousands of dollars range.
Therefore, the NRC continued to provide a lower-tier small entity
annual fee for small entities with relatively low gross annual
receipts, and for manufacturing concerns and educational
institutions not State or publicly supported, with less than 35
employees. The NRC also increased the lower tier small entity fee by
the same percentage increase to the maximum small entity annual fee.
This 25 percent increase resulted in the lower tier small entity fee
increasing from $400 to $500 in FY 2000.
Unlike the annual fees assessed to other licensees, the small
entity fees are not designed to recover the agency costs associated
with particular licensees; rather, they are designed to provide some
fee relief for qualifying small entity licensees while at the same
time recovering from those licensees some of the agency's costs for
activities that benefit them. The costs not recovered from small
entities must be recovered from other licensees. The current small
entity fees of $500 and $2,300 provide considerable relief to many
small entities.
As stated in the FY 2001 Regulatory Flexibility Analysis, (66 FR
32452; June 14, 2001), the NRC will re-examine the small entity fees
every two years, in the same years in which it conducts the biennial
review of fees as required by the CFO Act, instead of each year that
annual fees are rebaselined as indicated in the FY 2000 fee rule (65
FR 36946; June 12, 2000). Therefore, the FY 2002 small entity annual
fee will remain at $2,300, and the lower tier small entity annual
fee will remain at $500. The NRC plans to re-examine the small
entity fees in FY 2003.

IV. Summary

The NRC has determined that the 10 CFR part 171 annual fees
significantly impact a substantial number of small entities. A
maximum fee for small entities strikes a balance between the
requirement to recover 96 percent of the NRC budget and the
requirement to consider means of reducing the impact of the fee on
small entities. On the basis of its regulatory flexibility analysis,
the NRC concludes that a maximum annual fee of $2,300 for small
entities and a lower-tier small entity annual fee of $500 for small
businesses and not-for-profit organizations with gross annual
receipts of less than $350,000, small governmental jurisdictions
with a population of less than 20,000, small manufacturing entities
that have less than 35 employees, and educational institutions that
are not State or publicly supported and have less than 35 employees
reduces the impact on small entities. At the same time, these
reduced annual fees are consistent with the objectives of OBRA-90.
Thus, the fees for small entities maintain a balance between the
objectives of OBRA-90 and the RFA. Therefore, the analysis and
conclusions established in the FY 2001 fee rule remain valid for FY
2002.

Attachment 1 to Appendix A

U.S. Nuclear Regulatory Commission, Small Entity Compliance Guide,
Fiscal Year 2002

Contents

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

Introduction

The Small Business Regulatory Enforcement Fairness Act of 1996
(SBREFA) requires all Federal agencies to prepare a written guide
for each ``major'' final rule as defined by the Act. The NRC's fee
rule, published annually to comply with the Omnibus Budget
Reconciliation Act of 1990 (OBRA-90), as amended, is considered a
``major'' rule under SBREFA. Therefore, in compliance with the law,
this guide has been prepared to assist NRC material licensees in
complying with the FY 2002 fee rule.
Licensees may use this guide to determine whether they qualify
as a small entity under NRC regulations and are eligible to pay
reduced FY 2002 annual fees assessed under 10 CFR part 171. The NRC
has established two tiers of separate annual fees for those
materials licensees who qualify as small entities under NRC's size
standards.
Licensees who meet NRC's size standards for a small entity must
submit a completed NRC Form 526 ``Certification of Small Entity
Status for the Purposes of Annual Fees Imposed Under 10 CFR part
171'' to qualify for the reduced annual fee. This form can be
accessed on the NRC's Web site at http://www.nrc.gov. The form can
then be accessed by selecting ``License Fees'' and under ``Forms''
selecting NRC Form 526. For licensees who cannot access the NRC's
Web site, NRC Form 526 may be obtained through the local point of
contact listed in the NRC's ``Materials Annual Fee Billing
Handbook,'' NUREG/BR-0238, which is enclosed with each annual fee
billing. Alternatively, the form may be obtained by calling the fee
staff at 301-415-7554, or by e-mailing the fee staff at
fees@nrc.gov. The completed form, the appropriate small entity fee,
and the payment copy of the invoice should be mailed to the U.S.
Nuclear Regulatory Commission, License Fee and Accounts Receivable
Branch, to the address indicated on the invoice. Failure to file the
NRC small entity certification Form 526 in a timely manner may
result in the denial of any refund that might otherwise be due.

NRC Definition of Small Entity

The NRC has defined a small entity for purposes of compliance
with its regulations (10 CFR 2.810) as follows:
1. Small business--a for-profit concern that provides a service
or a concern not engaged in manufacturing with average gross
receipts of $5 million or less over its last 3 completed fiscal
years;
2. Manufacturing industry--a manufacturing concern with an
average number of 500 or fewer employees based upon employment
during each pay period for the preceding 12 calendar months;

[[Page 42641]]

3. Small organizations--a not-for-profit organization which is
independently owned and operated and has annual gross receipts of $5
million or less;
4. Small governmental jurisdiction--a government of a city,
county, town, township, village, school district or special district
with a population of less than 50,000;
5. Small educational institution--an educational institution
supported by a qualifying small governmental jurisdiction, or one
that is not state or publicly supported and has 500 or fewer
employees.\1\
---------------------------------------------------------------------------

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

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

NRC Small Entity Fees

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

------------------------------------------------------------------------
Maximum
annual fee
per
licensed
category
------------------------------------------------------------------------
Small business not engaged in manufacturing and small not-
for-profit organizations (gross annual receipts):
$350,000 to $5 million................................. $2,300
Less than $350,000..................................... 500
Manufacturing entities that have an average of 500
employees or less:
35 to 500 employees.................................... 2,300
Less than 35 employees................................. 500
Small governmental jurisdictions (including publicly
supported educational institutions) (population):
20,000 to 50,000....................................... 2,300
Less than 20,000....................................... 500
Educational institutions that are not State or publicly
supported, and have 500 employees or less:
35 to 500 employees.................................... 2,300
Less than 35 employees................................. 500
------------------------------------------------------------------------

To pay a reduced annual fee, a licensee must use NRC Form 526.
Licensees can access this form on the NRC's Web site at http://
www.nrc.gov. The form can then be accessed by selecting ``License
Fees'' and under ``Forms'' selecting NRC Form 526. Those licensees
that qualify as a ``small entity'' under the NRC size standards at
10 CFR Part 2.810 can complete the form in accordance with the
instructions provided, and submit the completed form and the
appropriate payment to the address provided on the invoice. For
licensees who cannot access the NRC's Web site, NRC Form 526 may be
obtained through the local point of contact listed in the NRC's
``Materials Annual Fee Billing Handbook,'' NUREG/BR-0238, which is
enclosed with each annual fee invoice. Alternatively, licensees may
obtain the form by calling the fee staff at 301-415-7544, or by e-
mailing us at fees@nrc.gov.

Instructions for Completing NRC Small Entity Form 526

1. File a separate NRC Form 526 for each annual fee invoice
received.
2. Complete all items on NRC Form 526 as follows:
a. The license number and invoice number must be entered exactly
as they appear on the annual fee invoice.
b. The Standard Industrial Classification (SIC) Code must be
entered if known.
c. The licensee's name and address must be entered as they
appear on the invoice. Name and/or address changes for billing
purposes must be annotated on the invoice. Correcting the name and/
or address on NRC Form 526, or on the invoice does not constitute a
request to amend the license. Any request to amend a license is to
be submitted to the respective licensing staffs in the NRC Regional
or Headquarters Offices.
d. Check the appropriate size standard for which the licensee
qualifies as a small entity. Check only one box. Note the following:
(1) A licensee who is a subsidiary of a large entity does not
qualify as a small entity.
(2) The size standards apply to the licensee, including all
parent companies and affiliates--not the individual authorized users
listed in the license or the particular segment of the organization
that uses licensed material.
(3) Gross annual receipts means all revenue in whatever form
received or accrued from whatever sources --not solely receipts from
licensed activities. There are limited exceptions as set forth at 13
CFR 121.104. These are: the term receipts excludes net capital gains
or losses; taxes collected for and remitted to a taxing authority if
included in gross or total income; proceeds from the transactions
between a concern and its domestic or foreign affiliates (if also
excluded from gross or total income on a consolidated return filed
with the IRS); and amounts collected for another entity by a travel
agent, real estate agent, advertising agent, or conference
management service provider.
(4) The owner of the entity, or an official empowered to act on
behalf of the entity, must sign and date the small entity
certification.
The NRC sends invoices to its licensees for the full annual fee,
even though some entities qualify for reduced fees as a small
entity. Licensees who qualify as a small entity and file NRC Form
526, which certifies eligibility for small entity fees, may pay the
reduced fee, which for a full year is either $2,300 or $500
depending on the size of the entity, for each fee category shown on
the invoice. Licensees granted a license during the first six months
of the fiscal year, and licensees who file for termination or for a
possession only license and permanently cease licensed activities
during the first six months of the fiscal year, pay only 50 percent
of the annual fee for that year. Such an invoice states the ``Amount
Billed Represents 50% Proration.'' This means the amount due from a
small entity is not the prorated amount shown on the invoice, but
rather one-half of the maximum annual fee shown on NRC Form 526 for
the size standard under which the licensee qualifies, resulting in a
fee of either $1150 or $250 for each fee category billed, instead of
the full small entity annual fee of $2,300 or $500.
A new small entity form (NRC Form 526) must be filed with the
NRC each fiscal year to qualify for reduced fees in that year.
Because a licensee's ``size,'' or the size standards, may change
from year to year, the invoice reflects the full fee and a new Form
526 must be completed and returned in order for the fee to be
reduced to the small entity fee amount. Licensees will not be issued
a new invoice for the reduced amount. The completed NRC Form 526,
the payment of the appropriate small entity fee, and the ``Payment
Copy `` of the invoice should be mailed to the U. S. Nuclear
Regulatory Commission, License Fee and Accounts Receivable Branch at
the address indicated on the invoice.
If you have questions regarding the NRC's annual fees, please
call the license fee staff at 301-415-7554, e-mail the fee staff at
fees@nrc.gov, or write to the U.S. Nuclear Regulatory Commission,
Washington, DC 20555, Attention: Office of the Chief Financial
Officer.
False certification of small entity status could result in civil
sanctions being imposed by the NRC under the Program Fraud Civil
Remedies Act, 31 U.S.C. 3801 et seq. NRC's implementing regulations
are found at 10 CFR part 13.

[FR Doc. 02-15591 Filed 6-21-02; 8:45 am]
BILLING CODE 7590-01-P

Notices For
2009
2008
2007
2006
2005
2004
2003
2002
2001
2000
1999
1998
1997
1996
1995
1994

Revision of Fee Schedules; Fee Recovery for FY 2002

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