NRC Size Standards; Proposed Revision

NUCLEAR REGULATORY COMMISSION

10 CFR Part 2

RIN 3150-AF24

NRC Size Standards; Proposed Revision

AGENCY: Nuclear Regulatory Commission.

ACTION: Proposed rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is proposing to amend

the NRC's size standards used to qualify an NRC licensee as a ``small

entity'' under the Regulatory Flexibility Act. The amendments would:

establish a separate standard to be used to determine whether a

licensee who is a manufacturer would qualify as a small entity; and

adjust the receipts-based standard to account for the effects of

inflation since 1985.

DATES: Comment period expires December 30, 1994. Comments received

after this date will be considered if it is practical to do so, but the

Commission is able to assure consideration only for comments received

on or before this date.

ADDRESSES: Mail written comments to: Secretary, U.S. Nuclear Regulatory

Commission, Washington, DC 20555. Attn: Docketing and Service Branch.

Deliver comments to: 11555 Rockville Pike, Rockville, Maryland,

between 7:45 am and 4:15 pm Federal workdays.

Copies of any comments received may be examined at the NRC Public

Document Room at 2120 L Street, NW. (lower level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Sarah N. Wigginton, Acting Chief,

Rules Review and Directives Branch, Division of Freedom of Information

and Publications Services, Office of Administration, telephone (301)

415-7158.

SUPPLEMENTARY INFORMATION: In 1983, the NRC surveyed its materials

licensees to create an economic profile sufficient to consider

regulatory alternatives tailored to the size of the licensee. After

analyzing the data and consulting with the Small Business

Administration (SBA), the NRC developed a proposed size standard that

would be appropriate to use in determining which of its licensees would

qualify as small entities for the purposes of compliance with the

Regulatory Flexibility Act. The NRC published its proposed size

standard for notice and comment in the Federal Register of May 21, 1985

(50 FR 20913). After considering the comments received, the NRC adopted

its final size standards as noted in the Federal Register of December

9, 1985 (50 FR 50241). In the Federal Register of November 6, 1991 (56

FR 56671), the NRC restated the size standards to include the

Regulatory Flexibility Act's definition of small governmental

jurisdiction. To further improve clarity, the NRC changed the

presentation of the size standards to conform to the listing of

definitions of small entities in the Regulatory Flexibility Act.

The size standards developed by the NRC were used in the NRC's

final rule implementing Public Law 101-508 to provide for a reduced

annual fee for those NRC licensees who qualified as small entities

under these standards (56 FR 31472; July 10, 1991 and subsequent

years). In response to these rules, the NRC has received a number of

comments concerning its size standards and the failure of the NRC to

promulgate a size standard that differentiates between manufacturing

entities and service providers. These commenters indicated that

applying a gross receipts standard to a manufacturing concern resulted

in an adverse impact on a manufacturer. The gross receipts of a service

provider reflect the value added by the service provider, which is

essentially the value of the service itself. However, the gross

receipts of a manufacturer that are equal to those of a service

provider reflect a smaller percentage of the value added by the

manufacturer. A manufacturer's gross receipts include the costs of the

raw materials or components that, when added to the cost of

manufacture, quickly send a manufacturer's gross receipts into fairly

sizeable sums. The SBA size standards for manufacturers are prescribed

in terms of a maximum number of employees rather than in terms of gross

receipts.

The NRC recently completed a survey to update the economic profile

of its materials licensees. The purpose of this survey was to evaluate

the continued efficacy of NRC's current size standards and to obtain

the information that is necessary to determine the necessity and effect

of a separate standard for manufacturers within the context of the

nuclear industry.

Of the licensees who responded to the survey request, approximately

20 percent (1131 of 5704) indicated that manufacturing was a primary

line of their business. This indicates that a number of licensees would

benefit from the establishment of a separate standard for businesses

engaged in manufacturing.

Therefore, the NRC is proposing to adopt a size standard for

business concerns that are manufacturing entities. The NRC proposes to

use a standard of 500 or fewer employees. This standard is the most

commonly used SBA employee standard and would be the standard

applicable to the types of industries that would hold an NRC license.

Under this standard, approximately 48 percent of the licensees who

indicated that they were manufacturers would qualify as small entities.

On September 2, 1993 (58 FR 46573), SBA published a proposed rule

in the Federal Register that would have streamlined its size standards

by reducing the number of its fixed size standard levels from 30 to 9.

As part of this proposed rule, the SBA proposed to adjust most of its

receipts-based size standard levels to mitigate the effects of

inflation from 1984 to the present. In a final rule published in the

Federal Register of April 7, 1994 (59 FR 16513), the SBA adopted only

that portion of its proposed rule that increased its receipts-based

size standards as a result of inflation.

The NRC is proposing to adjust its receipts-based size standard to

accommodate inflation and to conform to the SBA final rule. The NRC

proposes to raise its receipts-based small business size standard from

$3.5 million to $5 million. After analyzing the data received in

response to the survey and the revised SBA size standards, the NRC also

is proposing to eliminate the separate $1 million size standard for

private practice physicians and apply the revised receipts-based size

standard of $5 million to this class of licensees. This would mirror

the revised SBA standard of $5 million for medical practitioners. The

survey of materials licensees indicates that 26 percent qualify as

small entities under current NRC standards. If the NRC adopts the

proposed revisions to its size standards presented in this document, 35

percent of these licensees would qualify as small entities, an increase

of 9 percent. When NRC adopted its size standards in 1985, the NRC

staff estimated that approximately 35 percent of the materials

licensees would qualify as small entities.

The Small Business Credit and Business Opportunity Enhancement Act

of 1992 (Pub. L. 102-366) amended the Small Business Act concerning the

establishment of agency specific small business size standards. The

proposed NRC size standards have been developed so as to meet the

criteria specified in Pub. L. 102-366. The NRC has submitted these

proposed size standards for the review and approval of the

Administrator, SBA.

This proposed rule also would codify NRC's size standards in Part 2

of the Commission's regulations. Previously, NRC's size standards had

been published in the notices section of the Federal Register.

Environmental Impact: Categorical Exclusion

The NRC has determined that this proposed rule is the type of

action described in categorical exclusion 10 CFR 51.22(c)(1).

Therefore, neither an environmental impact statement nor an

environmental assessment has been prepared for this proposed

regulation.

Paperwork Reduction Act Statement

This proposed rule does not contain a new or amended information

collection requirement subject to the Paperwork Reduction Act of 1980

(44 U.S.C. 3501 et seq.). Existing requirements were approved by the

Office of Management and Budget, approval number 3150-0136.

Regulatory Analysis

A regulatory analysis has not been prepared for this proposed rule

because the proposed rule is administrative in that it would amend the

criteria the NRC uses for determining which of its licensees would

qualify as small entities for the purposes of compliance with the

Regulatory Flexibility Act. The amended size standards would conform to

SBA's revised standards and result in an increase in the number of NRC

licensees that would qualify as small entities.

Regulatory Flexibility Certification

As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.

605(b), the Commission certifies that this rule, if adopted, will not

have a significant economic impact on a substantial number of small

entities. The proposed rule is administrative in that it would amend

the criteria the NRC uses in determining which of its licensees would

qualify as small entities for the purposes of compliance with the

Regulatory Flexibility Act. The amended size standards would conform to

SBA's revised standards and result in an increase in the number of NRC

licensees that would qualify as small entities.

Backfit Analysis

The NRC has determined that the backfit rule, 10 CFR 50.109, does

not apply to this proposed rule and, therefore, that a backfit analysis

is not required for this proposed rule because these amendments do not

impose any provisions which would impose backfits as defined in 10 CFR

50.109(a)(1).

List of Subjects in 10 CFR Part 2

Administrative practice and procedure, Antitrust, Byproduct

material, Classified information, Environmental protection, Nuclear

materials, Nuclear power plants and reactors, Penalties, Sex

discrimination, Source material, Special nuclear material, Waste

treatment and disposal.

For the reasons set out in the preamble and under the authority of

the Atomic Energy Act of 1954, as amended, the Energy Reorganization

Act of 1974, as amended, and 5 U.S.C. 553, the NRC is proposing to

adopt the following amendments to 10 CFR Part 2.

PART 2--RULES OF PRACTICE FOR DOMESTIC LICENSING PROCEEDINGS AND

ISSUANCE OF ORDERS

1. The authority citation for Part 2 continues to read as follows:

Authority: Secs. 161, 181, 68 Stat. 948, 953, as amended (42

U.S.C. 2201, 2231); sec. 191, as amended, Pub. L. 87-615, 76 Stat.

409 (42 U.S.C. 2241); sec. 201, 88 Stat. 1242, as amended (42 U.S.C.

5841); 5 U.S.C. 552.

Section 2.101 also issued under secs. 53, 62, 63, 81, 103, 104,

105, 68 Stat. 930, 932, 933, 935, 936, 937, 938, as amended (42

U.S.C. 2073, 2092, 2093, 2111, 2133, 2134, 2135); sec. 114(f), Pub.

L. 97-425, 96 Stat. 2213, as amended (42 U.S.C. 10134(f)); sec. 102,

Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332); sec. 301,

88 Stat. 1248 (42 U.S.C. 5871). Sections 2.102, 2.103, 2.104, 2.105,

2.721 also issued under secs. 102, 103, 104, 105, 183, 189, 68 Stat.

936, 937, 938, 954, 955, as amended (42 U.S.C. 2132, 2133, 2134,

2135, 2233, 2239). Section 2.105 also issued under Pub. L. 97-415,

96 Stat. 2073 (42 U.S.C. 2239). Sections 2.200-2.206 also issued

under secs. 161b, i, o, 182, 186, 234, 68 Stat. 948-951, 955, 83

Stat. 444, as amended (42 U.S.C. 2236, 2282); sec. 206, 88 Stat 1246

(42 U.S.C. 5846). Sections 2.600-2.606 also issued under sec. 102,

Pub. L. 91-190, 83 Stat. 853, as amended (42 U.S.C. 4332). Sections

2.700a, 2.719 also issued under 5 U.S.C. 554. Sections 2.754, 2.760,

2.770, 2.780 also issued under 5 U.S.C. 557. Section 2.764 and Table

1A of Appendix C also issued under secs. 135, 141, Pub. L. 97-425,

96 Stat. 2232, 2241 (42 U.S.C. 10155, 10161). Section 2.790 also

issued under sec. 103, 68 Stat. 936, as amended (42 U.S.C. 2133) and

5 U.S.C. 552. Sections 2.800 and 2.808 also issued under 5 U.S.C.

553. Section 2.809 also issued under 5 U.S.C. 553 and sec. 29, Pub.

L. 85-256, 71 Stat. 579, as amended (42 U.S.C. 2039). Subpart K also

issued under sec. 189, 68 Stat. 955 (42 U.S.C. 2239); sec. 134, Pub.

L. 97-425, 96 Stat. 2230 (42 U.S.C. 10154). Subpart L also issued

under sec. 189, 68 Stat. 955 (42 U.S.C. 2239). Appendix A also

issued under sec. 6, Pub. L. 91-560, 84 Stat. 1473 (42 U.S.C. 2135).

Appendix B also issued under sec. 10, Pub. L. 99-240, 99 Stat. 1842

(42 U.S.C. 2021b et seq.).

2. Section 2.810 is added to read as follows:

Sec. 2.810 NRC Size Standards.

The NRC shall use the size standards contained in this section to

determine whether a licensee qualifies as a small entity in its

regulatory programs.

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

(1) Concern that provides a service or a concern not primarily

engaged in manufacturing with average gross receipts of $5 million or

less over its last 3 completed fiscal years; or

(2) A manufacturing concern with an average number of 500 or fewer

employees based upon employment during each pay period for the

preceding 12 calendar months.

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

independently owned and operated and has annual receipts of $5 million

or less.

(c) Small governmental jurisdictions are governments of cities,

counties, towns, townships, villages, school districts, or special

districts with a population of less than 50,000.

(d) A small educational institution is one that is--

(1) Supported by a qualifying small governmental jurisdiction; or

(2) One that is not state or publicly supported and has 500

employees or less.

Dated at Rockville, Maryland this 21st day of November, 1994.

For the Nuclear Regulatory Commission.

James M. Taylor,

Executive Director for Operations.

[FR Doc. 94-29481 Filed 11-29-94; 8:45 am]

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