# Revision of Fee Schedules; Fee Recovery for FY 2002 > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/fr%3A02-15591 ## Record - **Collection:** Federal Register - **Document type:** Rule - **Published:** June 24, 2002 - **Citation:** 67 FR 42612 ## Text NUCLEAR REGULATORY COMMISSION 10 CFR Parts 170 and 171 RIN 3150-AG95 Revision of Fee Schedules; Fee Recovery for FY 2002 AGENCY: Nuclear Regulatory Commission. ACTION: Final rule. SUMMARY: The Nuclear Regulatory Commission (NRC) is amending the licensing, inspection, and annual fees charged to its applicants and licensees. The amendments are necessary to implement the Omnibus Budget Reconciliation Act of 1990 (OBRA-90), as amended, which requires that the NRC recover approximately 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 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 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 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 § 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 § 170.21 and footnote 5 of § 170.31, which in this final rule the NRC is moving to § 170.11, have always specifically referred to special projects ( see § 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 § 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 § 170.11 is being revised to include the language that was previously located in footnote 4 to § 170.21 and footnote 5 to § 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. 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. 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 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 § 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. 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 × 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 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 (estimated) −11.1 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 § 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 § 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 § 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. Table II.—FY 2002 Budget Authority Included in Hourly Rates Reactor program Materials program Direct Program Salaries & Benefits $117.0M $32.2M Overhead Salaries & Benefits, Program Travel and Other Support 59.2M 15.6M 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 divided by 1,776 hours) $156 $152 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 § 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 § 170.31 to specifically include storage of reactor-related GTCC waste licensed under part 72. Category 1.B. of § 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 §§ 170.21 and 170.31 to reflect the changes in the revised hourly rates. The full cost fees assessed under §§ 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 §§ 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 § 170.21, and fee categories 1C, 1D, 2B, 2C, 3A through 3P, 4B through 9D, 10B, 15A through 15E, and 16 of § 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 § 170.21 and criterion (c) of Footnote 5 to § 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 § 170.21, Footnote 5 to § 170.31, and material in the definition of Special Projects in § 170.3 concerning these types of requests and reports provide information that is more suitable for inclusion in § 170.11, Exemptions. Therefore, the NRC is deleting Footnote 4 to § 170.21 and Footnote 5 to § 170.31, modifying the language that was in those footnotes, and is adding the revised fee waiver provisions to the Exemption section as § 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 § 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 § 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 types of submissions that meet the fee waiver criteria and those that do not are provided in § 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 § 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 § 170.11, Exemptions, the fee waiver provisions that are currently in Footnote 4 to § 170.21 and Footnote 5 to § 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 § 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 §§ 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 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 Class/category of licenses FY 2002 Annual fee Operating Power Reactors (including Spent Fuel Storage/Reactor Decommissioning annual fee) $2,849,000 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 UF 6 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] Category of costs FY 2002 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 recovered under part 170 8.3 2. Activities not assessed part 170 licensing and inspection fees or part 171 annual fees based on existing law or Commission policy: a. Fee exemption for nonprofit educational institutions 7.9 b. Licensing and inspection activities associated with other Federal agencies 3.7 c. Costs not recovered from small entities under 10 CFR 171.16(c) 4.5 3. Activities supporting NRC operating licensees and others: a. Regulatory support to Agreement States 13.0 b. Generic decommissioning/reclamation (except those related to power reactors) 8.3 Total surcharge costs 64.4 Less 4 percent of NRC's FY 2002 total budget (minus NWF and General Fund amounts) −20.0 Total Surcharge Costs to be Recovered 44.4 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 Percent $,M Non-LLW surcharge Percent $,M Total surcharge $,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.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. Table VII.—Effort Factors for Fuel Facilities Facility type Number of facilities Effort factors 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%) UF 6 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 Facility type FY 2002 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 costs 491,173 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 costs $491,173 50% of uranium recovery surcharge 189,509 Total Annual Fee Amount for Title II Specific Licenses $680,682 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 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 Facility type Number of facilities Level of benefit Category weight Total 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 Facility type FY 2002 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 § 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 § 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 § 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. 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 × [Application Fee + (Average Inspection Cost divided by Inspection Priority)] + Inspection Multiplier × (Average Inspection Cost divided by Inspection Priority) + Unique Category Costs. The constant is the multiple necessary to recover approximately $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 § 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 § 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, § 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 § 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 § 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 § 171.11 which takes reactor size, age, and other relevant factors into consideration. In the section-by-section analysis for § 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 § 171.9. 4. Administrative Amendment The NRC is modifying Category 1.B. of § 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 § 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 § 171.11(c) applies only to reactors licensed to operate; 4. Made an administrative change to fee category 1.B. of § 171.16(d) to be consistent with the change to category 1.B. of § 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 § 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). 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: § 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 § 170.11, paragraph (a)(1) is added to read as follows: § 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 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: § 170.20 Average cost per professional staff-hour. Fees for permits, licenses, amendments, renewals, special projects, part 55 re-qualification and replacement examinations and tests, other required reviews, approvals, and inspections under §§ 170.21 and 170.31 will be calculated using the following applicable professional staff-hour rates: (a) Reactor Program (§ 170.21 Activities) $156 per hour. (b) Nuclear Materials and Nuclear Waste Program (§ 170.31 Activities) $152 per hour. 5. In § 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: § 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 activities Full Cost. Inspections 3 Full Cost. K. Import and export licenses: Licenses for the import and export only of production and utilization facilities or the 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 § 2.202 of this chapter or for amendments resulting specifical [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A02-15591. Public record. Not legal advice.