Revision of Fee Schedules; 100% Fee Recovery, FY 1997

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), which mandates that the NRC

recover approximately 100 percent of its budget authority in Fiscal

Year (FY) 1997 less amounts appropriated from the Nuclear Waste Fund

(NWF). The FY 1997 NRC Appropriation also excluded from the fee base

the cost of NRC review relating to the commercial vitrification of

waste stored at the Department of Energy Hanford, Washington, site. The

amount to be recovered for FY 1997 is approximately $462.3 million.

EFFECTIVE DATE: July 28, 1997.

ADDRESSES: Copies of comments received and the agency workpapers that

support these final changes to 10 CFR Parts 170 and 171 may be examined

at the NRC Public Document Room at 2120 L Street, NW. (Lower Level),

Washington, DC 20555-0001.

FOR FURTHER INFORMATION CONTACT: C. James Holloway, Jr., Office of the

Chief Financial Officer, U.S. Nuclear Regulatory Commission,

Washington, DC 20555-0001, Telephone 301-415-6213.

SUPPLEMENTARY INFORMATION:

I. Background

II. Responses to Comments

III. Final Action

IV. Section-by-Section Analysis

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

Public Law 101-508, the Omnibus Budget Reconciliation Act of 1990

(OBRA-90), enacted November 5, 1990, requires that the NRC recover

approximately 100 percent of its budget authority, less the amount

appropriated from the Department of Energy (DOE) administered NWF, for

FYs 1991 through 1995 by assessing fees. OBRA-90 was amended in 1993 to

extend the NRC's 100 percent fee recovery requirement through FY 1998.

The NRC assesses two types of fees to recover its budget authority.

First, license and inspection fees, established in 10 CFR Part 170

under the authority of the Independent Offices Appropriation Act

(IOAA), 31 U.S.C. 9701, recover the NRC's costs of providing

individually identifiable services to specific applicants and

licensees. Examples of the services provided by the NRC for which these

fees are assessed are the review of applications for the issuance of

new licenses, approvals or renewals, and amendments to licenses or

approvals. Second, annual fees, established in 10 CFR Part 171 under

the authority of OBRA-90, recover generic and other regulatory costs

not recovered through 10 CFR Part 170 fees.

On April 12, 1996 (61 FR 16203), the NRC published its final rule

establishing the licensing, inspection, and annual fees necessary for

the NRC to recover approximately 100 percent of its budget authority

for FY 1996, less the appropriation received from the Nuclear Waste

Fund. Several changes to the fees assessed for FY 1996 were adopted by

the NRC. These changes were highlighted in the final rule (61 FR 16203;

April 12, 1996) and bear on the approach for establishing annual fees

set forth in this final rule for FY 1997.

On February 27, 1997 (62 FR 8885), the NRC published a proposed

rule to establish the licensing, inspection, and annual fees necessary

for the NRC to recover approximately 100 percent of its budget

authority for FY 1997, less the appropriation received from the Nuclear

Waste Fund and the General Fund. These changes were highlighted in the

proposed rule (62 FR 8885; February 27, 1997) and have been adopted in

this final rule for FY 1997. The major changes are summarized as

follows:

1. Adjust all 10 CFR 171 annual fees upward by about 8 percent.

This change is consistent with the NRC's intention stated in the FY

1995 final rule. The NRC indicated that, beginning in FY 1996, annual

fees would be stabilized by adjusting prior year annual fees by the

percent change (plus or minus) in the NRC budget authority taking into

consideration the estimated collections from 10 CFR Part 170 fees and

the number of licensees paying fees;

2. Establish and assess a new annual fee of $2,606,000 (fee

Category 1.E.) for each Certificate of Compliance issued to the United

States Enrichment Corporation.

3. Revise the two professional hourly rates in Sec. 170.20 which

are used to determine the 10 CFR Part 170 fees assessed by the NRC. The

rate for FY 1997 for the reactor program is $131 per hour and the rate

for the materials program is $125 per hour.

4. Adjust the current licensing and inspection fees in Secs. 170.21

and 170.31 for applicants and licensees to reflect both the changes in

the revised hourly rates and the results of the review required by the

Chief Financial Officers Act.

5. Implement a procedural change whereby fees will be assessed

under Secs. 170.21 and 170.31 to verify quality assurance, safeguards

contingency, and emergency plan changes submitted by licensees.

II. Responses to Comments

The NRC received nine comments on the proposed rule. Although the

comment period ended on March 31, 1997, the NRC has reviewed and

evaluated all comments received, including those submitted after that

date.

Several of the comments were similar in nature. For evaluation

purposes, these comments have been grouped, as appropriate, and

addressed as single issues in this final rule.

The comments are as follows:

A. Comments Regarding the Major Changes Proposed in the FY 1997 Fee

Rule

1. Streamline and Stabilize Annual Fees

Comment. Commenters continue to support the positive steps taken by

the NRC to equitably distribute and to reduce the burden of user fees

on licensees. Two commenters, who represent nuclear power plants, argue

that the annual fees being charged to power plant licensees, and

particularly the 8 percent increase in those fees proposed for 1997,

are inconsistent with statutory requirements. In particular, the

commenters argue that 42 U.S.C. 2214(b) requires, without exception,

that every recipient of a definite service from the NRC should pay 10

CFR Part 170 fees. The statute says that ``any person who receives a

service or thing of value from the Commission shall [emphasis added]

pay fees to cover the Commission's costs in providing any such service

or thing of value.'' 42 U.S.C. 2214(b). The commenters believe that the

word ``shall'' means that the agency has no authority not to charge 10

CFR Part 170 fees to parties who receive benefits from the agency. They

argue that the result of the NRC's not charging all beneficiaries, is a

fee system that

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charges nuclear power plants for services provided to others.

Therefore, the NRC fee system fails to meet the statutory requirement

that, ``[t]o the maximum extent practicable, the charges shall have a

reasonable relationship to the cost of providing regulatory services'

to licensees. 42 U.S.C. 2214(c)(3). As evidence that this statutory

requirement has been violated, the commenters argue that the 8 percent

increase in annual fees in FY 1997 is due largely to a projected and

unexplained reduction in 10 CFR Part 170 fees charged to persons and

entities other than power reactor licensees and is thus unrelated to

the costs of regulating nuclear power reactors. The commenters believe

that the agency should replace the proposed rule with one that charges

everyone who receives a service from the agency the cost of providing

that service.

Response. The NRC readily acknowledges the commenters' concerns for

fairness and equity. To meet its statutory obligation to recover

approximately 100 percent of its budget through fees, the NRC does

collect from each power reactor licensee an annual fee a portion of

which recovers costs not attributable to the regulation of nuclear

power plants. There are also other licensees whose annual fees in part

cover costs not attributable to the regulation of those licensees.

However, for reasons the NRC has set forth on many occasions, the

NRC believes that the current fee system is as fair and equitable as

the current statutory structure underlying the agency's fee system will

permit. For example, the NRC is barred by law from charging all but two

Federal agencies 10 CFR Part 170 fees; not all the work which the NRC

does for other agencies and governments can be recovered through

reimbursable agreements (see 60 FR 32218, 32222 (June 20, 1995)), and

yet that work is necessary for public health and safety and U.S.

national interests and under the Regulatory Flexibility Act, the agency

is obliged to consider carefully the impact of its fee rules on small

entities and to seek less onerous alternatives.

Such exemptions from fees as the NRC has granted are of long-

standing, have been granted only after full and public consideration of

the relevant policy questions (see, for example, 59 FR 12539 (March 19,

1994)), and are well-founded in law. When subsection 2214(b) in 42

U.S.C. says that ``any person who receives a service or thing of value

from the Commission shall pay fees'', the words ``shall'' and ``any

person'' are not absolute. They certainly do not eliminate any

possibility of exemptions or override other statutory restrictions on

the NRC's ability to assess user fees.

For example, the phrase ``any person'' is not all-inclusive.

Subsection 2214(b) says persons shall pay ``pursuant to section 9701 of

title 31, United States Code'', but section 9701 in turn rules out

imposing such fees on any ``person on official business of the United

States Government'', absent other legislation authorizing such

assessments. Moreover, neither subsection 2214(b) nor the legislative

history behind it reveal any intention to do away with the 10 CFR Part

170 exemptions that existed at the time subsection 2214(b) was enacted,

and of which Congress was fully aware. Indeed, section 2214's basic

requirement that the agency recover approximately 100 percent of its

budget, less certain amounts, has been extended more than once since

its enactment in 1990, and throughout the period since that enactment,

most notably in the report to Congress required by section 2903 of the

Energy Policy Act of 1992, the NRC has kept the Congress fully informed

about the Part 170 exemptions and their impact on power reactor

licensees, and Congress has chosen not to take any action against those

exemptions. ``When the statute giving rise to the longstanding

interpretation has been reenacted without change, the congressional

failure to revise or repeal the agency's interpretation is persuasive

evidence that the interpretation is the one intended by Congress.''

FDIC v. Philadelphia Gear, 476 U.S. 426, 437 (1986).

Moreover, to the extent that the commenters' arguments are directed

at the burdens they bear because some licensees are exempted from

annual fees, the answer is much the same. Such exemptions have been

carefully considered, after notice and comment rulemaking; and it is

unmistakable that exemptions from Part 171 are permitted by law: See

Florida Power & Light v. NRC, 846 F.2d 765, 770 (D.C. Cir 1988), cert.

denied 109 S. Ct. 1952 (1989) (NRC did not abuse its discretion by

failing to impose annual fees on all licensees).

The 8 percent increase in annual fees for power reactors, about

which the commenters are understandably concerned, was fully explained

in the statement of considerations accompanying the proposed rule. See

Part II, Section B and Table 1 in 62 Fed. Reg. 8885, 8887 (February 27,

1997). As the discussion there shows, the increase is neither arbitrary

nor capricious. To recap briefly, the increase is the result of several

factors: a substantial reduction in projected 10 CFR Part 170 fees,

largely because reductions in resources devoted to reviews of

applications for standard plant and reactor operating licenses; a

reduction in the number of licensees paying annual fees, largely the

result of one reactor's having ceased operations permanently and the

reassignment this last March to Massachusetts of regulatory

responsibility for some 425 materials licenses; several million dollars

less in collections received in the current fiscal year as a result of

billings from an earlier fiscal year; a small increase in the amount by

which small entity fees are reduced; and a greater allowance for unpaid

bills, to help assure that the agency will meet its obligation to

collect 100 percent of its budget.

The commenters mention the increase in power reactor annual fees

resulting from Massachusetts becoming an Agreement State as evidence

that the increase in those fees is in fact attributable to costs of

programs unrelated to the regulation of nuclear power reactors. See,

e.g., 60 FR 32218, 32225 (June 20, 1995). The NRC has already addressed

the comment that part of the increase cannot be attributed to the costs

of regulating power reactors. The NRC adds here simply that only a

small part of that increase can be attributed to the loss of half the

annual fees from former NRC licensees in Massachusetts.

While the agency believes that its current structure is fully

justified by law and policy, the agency remains committed to working

with Congress to reduce the fee burdens that power reactor licensees,

and other licensees, bear because they pay for regulatory activities

that do not directly benefit them. Three years ago, the agency

submitted a report to Congress that recommended enactment of

legislation that would reduce the amount to be recovered from fees from

100 percent of the NRC budget to about 90 percent, thus eliminating the

surcharge the power plant licensees, and some others, bear because some

parties receive benefits for which they do not pay. In the near future,

the NRC will be updating that report and reassessing the need for

legislation.

This final rule adopts the methodology to streamline and stabilize

FY 1997 annual fees by adjusting these fees by the percentage change

(plus or minus) in NRC's total budget authority. The FY 1996 annual

fees have been used as base annual fees and these annual fees have been

adjusted upward for FY 1997 based on the percentage change in the NRC's

budget authority, taking into consideration the total number of

licensees paying fees and

[[Page 29196]]

estimated collections from 10 CFR Part 170 licensing and inspection

fees. Therefore for FY 1997, all annual fees have been adjusted 8.4

percent above the FY 1996 levels.

2. Revise the Two Professional Rates in 10 CFR 170.20 Based on the FY

1997 Budget and Adjust the 10 CFR 170.21 and 170.31 Licensing

(Application and Amendment) ``Flat'' Fees to Reflect the Costs of

Providing the Licensing Services

a. Comment. Commenters supported the revised method of calculating

two hourly rates adopted by NRC in FY 1995 to separately and more

equitably allocate costs associated with the reactor program and the

materials program. However, one commenter was concerned that the

increase in hourly rates from last year exceeds the general increase

that was provided to all government workers. The commenter encouraged

the NRC to control its costs by seeking efficiencies in these areas to

attain a downward trend of licensing and inspection fees. Another

commenter indicated that the hourly rate will increase almost five

percent ($120 per hour to $125 per hour) and believes the hourly rate

is unjustifiably high and does not reflect the cost of providing

regulatory services to licensees. The commenter stated that the $125

hourly rate equals or exceeds the hourly charges of senior consultants

or principals at major consulting firms and that it exceeds the

generally accepted rate for similar work in private industry. The

commenter requests that with hourly rates as high as $125, the NRC

continue its efforts to provide bills that contain more meaningful

descriptions of the work done.

Response. The NRC has established in this final rule two

professional hourly rates for FY 1997 which will be used to determine

the 10 CFR Part 170 fees. A rate of $131 per hour is established in

Sec. 170.20 for the reactor program and a second rate of $125 per hour

is established in $170.20 for the nuclear materials and nuclear waste

programs. The two rates are based on the ``cost center'' concept that

is now being used for budgeting purposes.

The NRC professional hourly rates are established to recover

approximately 100 percent of the agency's Congressionally-approved

budget, less the appropriation from the Nuclear Waste Fund (NWF), and

the General Fund. The rates reflect the NRC budgeted cost per direct

professional hour. This cost includes the salary and benefits for the

direct hours, a prorata share of the salary and benefits for the

program and agency overhead and agency general and administrative

expenses (e.g., rent, supplies, and information technology). Both the

method and budgeted costs used by the NRC in the development of the

hourly rates of $131 and $125 are discussed in detail in Part III,

Section-by-Section Analysis, relating to Sec. 170.20 of the proposed

rule (62 FR 8888; February 27, 1997) and the same section of this final

rule. For example, Table II shows the budgeted costs and the direct

FTEs that must be recovered through fees assessed for the hours

expended by the direct FTEs. The budgeted costs as well as the direct

resources are those required by the NRC to implement its statutory

responsibilities and effectively accomplish the mission of the agency.

Additional information on the hourly rates is provided in the NRC

workpapers located in the Public Document Room. The specific details

regarding the budget for FY 1997 are documented in the NRC's

publication ``Budget Estimates, Fiscal Year 1997'' (NUREG-1100, Volume

12), which is available to the public. Copies of NUREG-1100, Volume 12,

may be purchased from the Superintendent of Documents, U.S. Government

Printing Office, P.O. Box 37082, Washington, DC 20402-9328. Copies are

also available from the National Technical Information Service, 5285

Port Royal Road, Springfield, VA 22161. A copy is also available for

inspection and copying for a fee in the NRC Public Document Room, 2120

L Street, NW. (Lower Level), Washington, DC 20555-0001. The NRC will

continue its current practice of providing available backup data to

support 10 CFR Part 170 licensing and inspection billings upon request

by the licensee or applicant.

b. Comment. One commenter indicated that although they appreciate

NRC's efforts to stabilize fees based on percentage changes in NRC's

annual budget, they have concerns about the lack of a reasonable

relationship between the cost to uranium recovery licensees of NRC's

regulatory program and the benefit derived from such services. The

commenter asserts that the Commission cannot impose fees under the IOAA

unless there is a rational relationship between the fees and the

regulatory services provided. The commenter, citing Central & S. Motor

Freight Tariff Ass'n v. United States, 777 F.2d 722, 729 (D.C. Cir.

1985), notes that in applying this IOAA requirement, the fees assessed

must be reasonably related to, and may not exceed the value of the

service to the recipient whatever the agency's cost may be. The

commenter then suggests that the NRC fee system may violate this

principle because the proposed hourly rate of $125 for services

provided by agency professionals is unduly high. The commenter goes on

to say that the problem of the lack of reasonable relationship between

annual fees and services rendered is exacerbated as more states become

Agreement States, e.g., Massachusetts which became an Agreement State

in FY 1997, leaving fewer NRC licensees to bear an even greater share

of the burden. The commenter states that the current system, in effect,

gives preferential treatment to licensees in Agreement States. The

commenter also indicated that as the uranium recovery industry

continues to shrink in size, the decreasing number of licensees will

ultimately be charged increasing annual fees thereby forcing more

financial hardships on an already depressed industry.

Response. The Commission believes that its IOAA fee schedule is

fully supported by applicable legal precedent and does not accept

commenter's suggestion. In upholding the Commission's IOAA fee

schedule, the United States Court of Appeals for the Fifth Circuit held

that the NRC may recover the full cost of providing a service to an

identifiable recipient. (Emphasis in original) Mississippi Power &

Light v. NRC, 601 F.2d at 230 (5th cir. 1979), cert. denied, 444 U.S.

1102 (1980). This is consistent with the earlier teaching of National

Cable Television Ass'n Inc. v. FCC, 554 F.2d 1094, 1106 (D.C. 1976)

relied upon by the court in Central & S Motor Freight Tariff Ass'n,

supra. There the court held that fees should be a reasonable

approximation of the attributable costs that the Commission identifies

as being expended to benefit the recipient. The Court suggested that a

fee might be questionable if the fee unreasonably exceeds the value of

the specific services for which it is charged. Here the services

provided by the NRC are required for licensees to maintain their

licenses and the benefits derived therefrom. The basis for the revised

hourly rates is fully discussed in NRC's response to comment A.2.a.

which relates to the hourly rates being assessed by NRC under 10 CFR

Part 170. The commenter has provided virtually no evidence that could

cause the NRC to conclude that its fees unreasonably exceed the value

of the services rendered.

In FY 1995, the NRC changed the methodology for allocating those

budgeted costs (about 10 percent of the NRC budget authority) that

cause fairness and equity concerns because

[[Page 29197]]

the legislation requested by the NRC had not been passed by the

Congress (60 FR 32218; June 20, 1995). These costs, which include the

cost of the Agreement State oversight and regulatory support to the

Agreement States, are now treated in a manner similar to overhead.

These costs are distributed based on the percentage of the budget

directly attributable to a class of licensees. Commenters at that time

supported this method of allocation as being more equitable, pending

legislative relief by Congress to remedy this inequitable situation. If

additional states become Agreement States and the NRC decides to

rebaseline the fees based on substantive changes to the budget, then

any increased cost for Agreement State oversight and regulatory support

to the Agreement States would be identified, treated similar to

overhead, and distributed based on the percentage of the budget

directly attributable to a class of licensees.

The NRC also revised its methodologies in the FY 1995 final rule

for determining annual fees for fuel facility and uranium recovery

licensees. The revised methodologies resulted in annual fees that more

accurately reflect the costs of providing regulatory services to the

subclasses of fuel facility and uranium recovery licensees. The revised

methodologies were fully explained in Section IV, Section-by-Section

Analysis, of the final FY 1995 rule (60 FR 32218; June 20, 1995).

In response to comments relative to increases in annual fees as a

result of the decrease in the number of licensees, the changes adopted

in the FY 1995 final rule to stabilize fees should minimize large fee

changes as a result of decreases in licensees.

3. Annual Fees for Certificates of Compliance Issued to the United

States Enrichment Corporation

a. Comment. The United States Enrichment Corporation (USEC)

commented that the proposed annual fees of $2,600,000 which have been

proposed for the first time for each of the two enrichment facilities

are not fair and equitable when compared to those imposed on similar

facilities regulated by the NRC. USEC stated that the rationale for

this as expressed in the NRC's proposed rule is an unsupported

assertion that the relative weighted safety and safeguards factors for

USEC's facilities are similar to a high enriched uranium facility. USEC

believes this rationale is incorrect, unsupported by the facts, and

contradictory to the NRC's own licensing actions. USEC indicates that

the NRC has, in fact, certified USEC's gaseous diffusion plants (GDPs)

as low enriched uranium facilities and, as part of that licensing

action, the NRC has approved safeguards measures appropriate for low

enriched uranium facilities and has not imposed the safeguards measures

required at high enriched facilities possessing strategic special

nuclear material. USEC indicates that, in accordance with the joint

statement of understanding between the NRC and the Department of Energy

(DOE), DOE is solely responsible for any strategic special nuclear

material which may be located at the Portsmouth, Ohio, GDP and that the

presence of any such high enriched uranium at the Portsmouth GDP is not

relevant to the NRC's fee-setting process. USEC states that the NRC

methodology for determining annual fees for major fuel facilities,

presented in the June 20, 1995, Federal Register, clearly states that

the issued license is the source for determining authorized nuclear

material and use/associated activity and is the determining factor in

placing a licensee into one of the five fuel facility license fee

categories created in the NRC's methodology. USEC argues that the GDPs

are clearly in the low enriched fuel category on the basis of the

issued licenses (certificates) and not in the high enriched-fuel

category. USEC states that the NRC's proposal to put the GDPs into the

same fee category as high enriched fuel facilities has not been

justified by the cited NRC methodology and appears to be arbitrary and

that the NRC has provided no basis for its conclusion that the relative

weighted safety and safeguards factors for the GDPs are similar to a

high enriched uranium facility. USEC states that the annual fee for the

GDPs should be the same as that proposed for other low enriched

facilities, $1,276,000 annually.

Response. NRC does not dispute that the GDPs have been certified as

low enriched uranium facilities with corresponding safeguards measures

for category III facilities. The NRC recognizes that DOE maintains sole

regulatory responsibility for strategic special nuclear material that

may be located at the Portsmouth GDP. The NRC methodology for

determining annual fees for major fuel facilities, published in the

June 20, 1995 Federal Register, (60 FR 32218, 32234), does state that

the issued license is the source for determining authorized nuclear

material and use/associated activity. However, it does not state that

this information is the determining factor for placing a licensee into

one of the five fee categories. The factors for placing a licensee into

a fee category were stated as:

This new methodology results in the creation of five fuel

facility license fee categories. Licenses are grouped into these

categories according to their license (nuclear material type,

enrichment, form, quantity, and use/associated activity) and

according to the scope, depth of coverage and rigor of generic

regulatory programmatic effort applicable to each category (emphasis

added).

The nuclear material and activity at the GDPs, authorized by the

certificates, does not automatically place the facilities into the high

enriched fuel category. The scope, depth of coverage, and rigor of

generic regulatory programmatic effort applicable to the GDPs, however,

is approximately equivalent to that of a high enriched fuel facility.

As described in the GDP Safety Analysis Reports, the facilities are

subject to a relatively large number of credible accidents, most of

which have multiple initiating events. The potential onsite and offsite

consequences posed by these accidents are significantly greater than

those applicable to low enriched fuel facilities. The large size and

scope of the GDP operations require substantially more effort for the

development of inspection procedures, guidance, and schedules. This

large size and scope is also expected to result in a higher number of

reportable events that NRC staff must review.

The complexity, higher potential accident consequences, and large

size and scope of the GDP operations require the NRC to provide generic

regulatory programmatic effort that is of a scope, depth of coverage,

and rigor equivalent to that for a high enriched fuel facility. This

level of generic effort is the basis for assigning the two GDPs to the

high enriched fuel facility category for the purpose of determining and

assessing annual fees in FY 1997.

b. Comment. USEC also indicated that based on the March 16, 1993,

D.C. Court of Appeals decision directing the NRC to grant Combustion

Engineering an exemption from fees for one of its two low enriched

uranium plants located in Hematite, Missouri and Windsor, Connecticut,

it too deserves to be considered for an exemption because its two

enrichment facilities are operationally equivalent to a single licensed

facility because they are part of one process to produce enriched

uranium product. Therefore, the commenter requests that the NRC

reconsider the implication of the Court's holding with respect to the

disproportionate allocation of its costs under 10 CFR 171.11(d),

especially as the allocation of these costs adversely impacts the

licensee.

[[Page 29198]]

Response. With respect to USEC's request that one of its

certificates be exempt from annual fees, the D.C. Circuit Court of

Appeals in Allied Signal, Inc. v. NRC, 988 F.2d 146 (D.C. Cir. 1993)

directed the NRC to grant an exemption from annual fees to Combustion

Engineering (CE) for one of its two low enriched uranium facilities.

The NRC had previously denied the exemption request from CE. The Court

found that the two facilities in the aggregate were operationally

equivalent to the single-plant, single-license facilities of other low

enriched uranium manufacturers. The Court concluded that ``the argument

that the ``equal fee per license'' rule is ``unfair and inequitable''

is persuasive only on the ground that the rule produced troubling

results when applied to Combustion's circumstances.'' The Court saw no

reason for requiring the NRC to attend to that rather rare situation in

the rule itself. Thus, consistent with the Court decision and 10 CFR

Part 171, if USEC feels that based on the circumstances of its

particular situation it can make a strong case to the NRC for an

exemption from the FY 1997 annual fees then they should do so. The NRC

will consider such requests for exemption under the provisions of 10

CFR 171.11(d). In accordance with 10 CFR Part 171.11(b), such requests

for exemption must be filed within 90 days from the effective date of

this final rule. The filing of an exemption request does not extend the

date on which the bill is payable. If a partial or full exemption is

granted, any overpayment will be refunded.

B. Other Comments

1. Eliminate the Application Fee for Uranium Enrichment Facilities

Comment. One commenter noted that an application fee of $125,000 is

required to accompany an application to construct and operate a uranium

enrichment facility (Sec. 170.31, fee Category 1.E.) and stated that

the application fee is assessed in addition to the ``full cost'' to

process the application. The commenter requests that the application

fee for uranium enrichment facilities be eliminated to achieve fee

equity among all materials licensees.

Response. Section 170.31, fee Category 1.E. of the Commission's

regulations was established on June 1, 1992 (57 FR 18388). The change

in the fee regulations was made to reflect changes made to the Atomic

Energy Act of 1954 (as amended) by the Solar, Wind, Waste and

Geothermal Power Production Incentives Act of 1990. The principal

effect of these amendments is that uranium enrichment facilities will

be licensed subject to the provisions of the Act pertaining to source

and special nuclear material rather than under the provisions

pertaining to a production facility. Previous to June 1992, uranium

enrichment facilities were treated for fee purposes under Sec. 170.21,

the fee regulation that relates to reactors and other production and

utilization facilities. As a result of the conforming changes made June

1, 1992, to the NRC's regulations, the category relating to uranium

enrichment facilities, which included the application fee, was moved

directly to the materials schedule in Sec. 170.31. Licensees who pay

the $125,000 fee upon filing an application are given credit for the

fee toward the full cost of processing the application. Licensees do

not pay the full cost of processing plus the application fee of

$125,000. However, because other major fuel facilities covered by

Sec. 170.31 do not pay an application fee for a new license

application, the NRC agrees with the commenter and has eliminated the

$125,000 application fee from Sec. 170.31, fee Category 1.E.

2. Fees for Amendments to Medical Licenses

Comment. One commenter, while indicating support for fees to

recover costs of NRC regulatory activities, questioned why such a high

fee ($460) would be required to amend a medical license to add another

physician to the license.

Response. In developing the revised fee schedule, the NRC was

obligated under Title V of the Independent Offices Appropriation Act of

1952 to examine the costs of processing license amendments not only for

medical license fee Category 7C but also for all of its materials

license fee categories. The amendment fee of $460 was developed based

on the ``average-cost'' method (flat fees) to process an amendment for

medical licensees in fee Category 7C. Based on data for the last five

years, the average number of hours expended to review and approve

license amendments for licenses included in fee Category 7C is 3.7

hours of professional effort. An explanation of how the average number

of hours are determined for materials licenses is found in Part IV,

Section-by-Section Analysis, Section 170.31 of this final rule. To

determine the amount of the amendment fee, the average hours to review

and approve medical amendments (3.7 hours) was multiplied by the

professional hourly rate ($125/hour) to arrive at the amendment fee of

$460 for the medical license.

3. Fee Legislation

Comment. Several commenters noted that the NRC had completed its

report on fee policy as required by the Energy Policy Act of 1992 and

that the NRC had sent a report to Congress with legislative

recommendations. The commenters commended NRC's efforts in this regard

and stated that they continue to believe that 100 percent fee recovery

for NRC, as mandated by OBRA-90, is inequitable and unfair to licensees

because licensees are paying for certain costs that are not directly

related to and do not benefit them. The commenters acknowledged that

without legislative change to OBRA-90, the central problems with NRC's

fees cannot be completely resolved. Commenters strongly supported more

efforts to define a more equitable fee base and recommended that the

NRC continue to work with Congress and the Administration and actively

seek the necessary legislative changes. In this regard, commenters

stated that it is time for NRC to actively pursue a legislative agenda

with Congress by drafting specific language to modify OBRA-90 or the

Atomic Energy Act.

Response. The need for legislation is beyond the scope of this

rulemaking proceeding. As indicated in the FY 1996 final rule (61 FR

16203; April 12, 1996), the NRC will continue to work with the Congress

to make fees more fair and equitable. As part of its Strategic

Assessment and Rebaselining initiative, the Commission considered

issues associated with fees. After evaluation of comments from

stakeholders, the Commission concluded that in order to make annual

fees more fair and equitable for all NRC licensees, the Commission must

seek Office of Management and Budget and Congressional authorization to

remove certain NRC activities that do not directly benefit NRC

licensees from the fee base and instead fund those activities from non

fee-based appropriations or separate appropriations. To this end, the

Commission has requested the NRC staff to prepare an update to its

February 1994 report to Congress on this matter.

4. Fees Based on Other Factors

Comment. One commenter, while understanding the need for NRC to be

financially self-sufficient, was concerned about the effect of an 8

percent increase in annual fees on rural hospitals. The commenter

states that the annual fees should be revised to take into account the

small, low procedure volume, one room, one camera, diagnostic nuclear

medicine department

[[Page 29199]]

who pays the same annual fee as a large metropolitan hospital. Another

commenter indicated that the NRC's intention to continue small entity

and lower tier small entity fees based on market volume (gross annual

receipts) is necessary and proper in order to aid in the survival of

small firms.

Response. The issue of basing fees on the amount of material

possessed, the frequency of use of the material, the size of the

facilities, and market competitive positions, was addressed by the NRC

in previous rules and in the Regulatory Flexibility Analysis in

Appendix A to the final rule published July 10, 1991 (56 FR 31511-

31513). The NRC did not adopt that approach because it would require

licensees to submit large amounts of new data and would require

additional NRC staff to evaluate the data submitted and to develop and

administer even more complex fee schedules. The NRC continues to

believe that uniformly allocating the generic and other regulatory

costs to the specific licensee within a class to determine the amount

of the annual fee is a fair, equitable, and practical way to recover

those costs and that establishing reduced annual fees based on gross

receipts (size) is the most appropriate approach to minimize the impact

on small entities. Therefore, NRC finds no basis for altering its

approach at this time. This approach was upheld by the D.C. Circuit in

its March 16, 1993, decision in Allied-Signal, supra.

III. Final Action

The NRC is amending its licensing, inspection, and annual fees to

recover approximately 100 percent of its FY 1997 budget authority,

including the budget authority for its Office of the Inspector General,

less the appropriations received from the NWF and the General Fund. For

FY 1997, the NRC's budget authority is $476.8 million, of which $11.0

million has been appropriated from the NWF. In addition, $3.5 million

has been appropriated from the General Fund for activities related to

commercial vitrification of waste stored at the Department of Energy

Hanford, Washington, site. The FY 1997 appropriation statute states

that the $3.5 million appropriated for regulatory reviews and other

activities pertaining to waste stored at the Hanford, Washington, site

shall be excluded from license fee revenues notwithstanding 42 U.S.C.

2214. Therefore, NRC is required to collect approximately $462.3

million in FY 1997 through 10 CFR Part 170 licensing and inspection

fees and 10 CFR Part 171 annual fees.

The total amount to be recovered for FY 1997, and therefore the

total fees, is the same as the amount estimated for recovery for FY

1996. However, the distribution of the total amount to be collected

between the two types of fees is different. The NRC estimates that

approximately $95.2 million will be recovered in FY 1997 from fees

assessed under 10 CFR Part 170 and other receipts compared to $120.5

million in FY 1996. The remaining $367.1 million in FY 1997 will be

recovered through the 10 CFR Part 171 annual fees. Because the

estimated 10 CFR Part 170 fees and other offsetting receipts for FY

1997 are below the estimates for FY 1996, annual fees must increase.

The lower estimate for 10 CFR Part 170 fees plus other changes cause an

8.4 percent increase in FY 1997 annual fees compared to FY 1996. These

changes are more fully explained in Section B. The following examples

illustrate the changes in annual fees.

------------------------------------------------------------------------

FY 1996 annual FY 1997 annual

fee fee

------------------------------------------------------------------------

Class of Licensees:

Power Reactors.................... $2,746,000 $2,978,000

Nonpower Reactors................. 52,800 57,300

High Enriched Uranium Fuel

Facility......................... 2,403,000 2,606,000

Low Enriched Uranium Fuel Facility 1,179,000 1,279,000

UF6 Conversion Facility........... 597,800 648,000

Uranium Mills..................... 57,000 61,800

Typical Materials Licenses:

Radiographers..................... 13,000 14,100

Well Loggers...................... 7,500 8,200

Gauge Users....................... 1,600 1,700

Broad Scope Medical............... 21,700 23,500

------------------------------------------------------------------------

The amounts of the annual fees for some of the classes of licenses

have slightly increased since the publication of the proposed fee in

February 1997. The annual fees for a majority of the classes of

licensees remain the same as those proposed. The reason for the

increase in annual fees from those proposed for some of the classes is

that the NRC has recently completed the third quarter billing in FY

1997 for 10 CFR Part 170 fees for services. The total estimate for 10

CFR Part 170 fee billings for the remainder of FY 1997 based on actual

amount billed for the first three quarters is about $800,000 below the

estimate of $96,000,000 used in the FY 1997 proposed rule. As a result,

annual fees have been increased in this final rule 8.4 percent above

the FY 1996 levels as compared to an 8.2 percent increase in the

proposed rule. The amount of the increases from the proposed rule range

from a low of $100 for a radiographer, for example, to a high of $6,000

for an operating power reactor and a high enrichment uranium facility.

Because the final FY 1997 fee rule will be a ``major'' final rule

as defined by the Small Business Regulatory Enforcement Fairness Act of

1996, the NRC's fees for FY 1997 will become effective 60 days after

publication of the final rule in the Federal Register. The NRC will

send a bill for the amount of the annual fee upon publication of the FY

1997 final rule to reactors and major fuel cycle facilities. For these

licensees, payment will be due on the effective date of the FY 1997

rule. Those materials licensees whose license anniversary date during

FY 1997 falls before the effective date of the final FY 1997 final rule

will be billed during the anniversary month of the license and continue

to pay annual fees at the FY 1996 rate in FY 1997. Those materials

licensees whose license anniversary date falls on or after the

effective date of the FY 1997 final rule will be billed at the FY 1997

revised rates during the anniversary month of the license and payment

will be due on the date of the invoice.

[[Page 29200]]

A. Amendments to 10 CFR Part 170: Fees for Facilities, Materials,

Import and Export Licenses, and Other Regulatory Services

Three amendments have been made to 10 CFR Part 170 and one change

in practice under 10 CFR Part 170. These amendments do not change the

underlying basis for the regulation--that fees be assessed to

applicants, persons, and licensees for specific identifiable services

rendered. The amendments also comply with the guidance in the

Conference Committee Report on OBRA-90 that fees assessed under the

Independent Offices Appropriation Act (IOAA) recover the full cost to

the NRC of identifiable regulatory services each applicant or licensee

receives.

First, the NRC is amending Sec. 170.11 of the Commission's fee

regulations to add an exemption provision for those amendments to

materials portable gauge licenses issued in accordance with NUREG 1556,

Volume 1, that will change only the name of the Radiation Safety

Officer (RSO). This change is consistent with the proposed regulatory

approach outlined in draft NUREG-1556, Volume 1, entitled

``Consolidated Guidance About Materials Licenses, Program-Specific

Guidance About Portable Gauge Licenses'' issued October 3, 1996, for

public comment. No amendment fees will be assessed for the amendments

to portable gauge licenses because the regulatory program outlined in

NUREG-1556, Volume 1, includes commitments from the licensee concerning

RSO qualifications and if those commitments are included in the

amendment application, then a technical review is not required. NUREG-

1556, Volume 1, is expected to be finalized in May 1997.

Second, the two professional hourly rates established in FY 1996 in

Sec. 170.20 are revised based on the FY 1997 budget. These rates are

based on the FY 1997 direct FTEs and that portion of the FY 1997 budget

that either does not constitute direct program support (contractual

services costs) or is not recovered through the appropriation from the

NWF or the General Fund. These rates are used to determine the Part 170

fees. The NRC has established a rate of $131 per hour ($233,055 per

direct FTE) for the reactor program. This rate is applicable to all

activities whose fees are based on full cost under Sec. 170.21 of the

fee regulations. A second rate of $125 per hour ($222,517 per direct

FTE) is established for the nuclear materials and nuclear waste

program. This rate is applicable to all materials activities whose fees

are based on full cost under Sec. 170.31 of the fee regulations. In the

FY 1996 final fee rule, these rates were $128 and $120 respectively.

The two rates are based on cost center concepts adopted in FY 1995

(60 FR 32225; June 20, 1995) and used for NRC budgeting purposes. In

implementing cost center concepts, all budgeted resources are assigned

to cost centers to the extent they can be distinguished. These costs

include all salaries and benefits, contract support, and travel that

support each cost center activity.

Third, the NRC has adjusted the current Part 170 licensing and

inspection fees in Secs. 170.21 and 170.31 for applicants and licensees

to reflect both the changes in the revised hourly rates and the results

of the biennial fee schedule review required by the Chief Financial

Officers (CFO) Act. To comply with the requirements of the CFO Act, the

NRC has evaluated historical professional staff hours used to process a

licensing action (new license and amendment) for those materials

licensees whose fees are based on the average cost method (flat fees).

This review also included new license and amendment applications for

import and export licenses.

Based on evaluation of the historical data related to the average

number of professional staff hours needed to complete materials

licensing actions, the NRC increased the fees in some categories and

decreased the fees in others to reflect the costs incurred in

completing the licensing actions. Thus, the revised average

professional staff hours reflect the changes in the NRC licensing

review program that have occurred since FY 1995. The licensing fees are

based on the revised average professional staff hours needed to process

the licensing actions multiplied by the nuclear materials professional

hourly rate for FY 1997 of $125 per hour. The data for the average

number of professional staff hours needed to complete licensing actions

were last updated in FY 1995 (60 FR 32218; June 20, 1995). For new

materials licenses, the licensing fees for FY 1997 are increased in

approximately 70 percent of the categories, while the proposed fees for

materials amendments will increase in over 60 percent of the

categories. In response to a comment received on the proposed rule, the

NRC has eliminated the $125,000 application fee from Sec. 170.31, fee

Category 1.E.

In addition to these changes, the NRC is clarifying how it will

recover the costs of post-implementation reviews of changes licensees

make without prior NRC review; for example, changes under Secs. 50.54,

50.59 and 70.32. Licensees will be billed for post-implementation

review of these changes under Secs. 170.21 and 170.31, beginning with

the effective date of the FY 1997 final fee rule. There will be no

change in how fees are assessed for any pre-implementation

interactions, including any review prior to licensee submissions,

between NRC and licensees. As in the past, any pre-implementation

interaction will not be fee bearing. The NRC plans to inform reactor

licensees in the near future that their submittals under Sec. 50.54

(a), (p) and (q) should not ask for pre-implementation reviews.

Instead, licensees are required to perform their analyses, implement

their changes (if the analyses show that the changes do not degrade

plans the NRC has already approved), and make their submittals under

the relevant paragraph of Sec. 50.54. The NRC will then verify that the

changes are in compliance with Sec. 50.54.

In summary, the NRC has:

(1) Revised the two 10 CFR Part 170 hourly rates;

(2) Revised the licensing (application and amendment) fees assessed

under 10 CFR Part 170 in order to comply with the CFO Act's requirement

that fees be revised to reflect the cost to the agency of providing the

service;

(3) Added a provision to the regulations exempting from

10 CFR Part 170 fees certain amendments to materials portable gauge

licenses issued in accordance with NUREG-1556 Volume 1 which is

expected to be issued in May 1997;

(4) Eliminated the $125,000 application fee in Sec. 170.31 for fee

Category 1.E.; and

(5) Changed the procedure whereby charges under Part 170 will be

made for post-implementation review of quality assurance plan,

safeguards contingency plan and emergency plan changes.

B. Amendments to 10 CFR Part 171: Annual Fees for Reactor Operating

Licenses, and Fuel Cycle Licenses and Materials Licenses, Including

Holders of Certificates of Compliance, Registrations, and Quality

Assurance Program Approvals and Government Agencies Licensed by NRC

Six amendments have been made to 10 CFR Part 171. First, the NRC is

amending Sec. 171.13 to revise the language to indicate that if the NRC

is unable to publish a fee rule with an effective date within the

current fiscal year, then the NRC will continue to assess fees on the

same basis as the previous fiscal year. The NRC believes that it will

be able to publish an effective fee rule within a current fiscal year

as it has done since FY 1991. However, as a contingency the NRC is

[[Page 29201]]

amending the rule to permit NRC to meet the requirements of OBRA-90 in

the case that unforeseen events prevent NRC from publishing a new rule

during a fiscal year.

Second, the NRC is amending Secs. 171.15 and 171.16 to revise the

annual fees for FY 1997 to recover approximately 100 percent of the FY

1997 budget authority, less fees collected under 10 CFR Part 170 and

funds appropriated from the NWF and the General Fund. In the FY 1995

final rule, the NRC stated that it would stabilize annual fees as

follows. Beginning in FY 1996, the NRC would adjust the annual fees

only by the percentage change (plus or minus) in NRC's total budget

authority unless there was a substantial change in the total NRC budget

authority or the magnitude of the budget allocated to a specific class

of licensees. If either case occurred, the annual fee base would be

recalculated (60 FR 32225; June 20, 1995). The NRC also indicated that

the percentage change would be adjusted based on changes in 10 CFR Part

170 fees and other adjustments as well as on the number of licensees

paying the fees.

In the FY 1996 final rule, the NRC stabilized the annual fees by

establishing the annual fees for all licensees at a level of 6.5

percent below the FY 1995 annual fees. In this FY 1997 final rule, the

NRC followed the same method as used in FY 1996. Because the total

amount estimated for recovery through fees in FY 1997 is the same as

the amount for FY 1996, establishing new baseline fees is not warranted

for FY 1997. While the total amount to be collected is the same, the

distribution between Part 170 and 171 fees has changed. In FY 1996, 26

percent was estimated to be collected from 10 CFR Part 170 fees. This

decreases to 21% in FY 1997. Therefore, to recover 100 percent of the

budget, 10 CFR Part 171 annual fees must increase in FY 1997 compared

to FY 1996. The NRC is establishing the FY 1997 annual fees for all

licensees at a level of 8.4 percent above the FY 1996 annual fees. The

8.4 percent increase results primarily from a reduction in the amount

of the budget recovered for 10 CFR Part 170 fees, a reduction in other

offsetting adjustments, and reduction in the number of licensees paying

annual fees. In addition, the NRC has made adjustments to recognize

that all fees billed in a fiscal year are not collected in that year.

Table I shows the total budget and amounts of fee billed and collected

for FY 1996 and FY 1997.

Table I.--Calculation of the Percentage Change to the FY 1996 Annual

Fees

[Dollars in millions]

------------------------------------------------------------------------

FY96 FY97

------------------------------------------------------------------------

Total Budget........................ $473.3 $476.8

Less NWF.......................... -11.0 -11.0

Less General Fund (Hanford Tanks). -- -3.5

-----------------------------------

Total Fee Base...................... 462.3 462.3

Less Part 170 Fees................ 114.5 95.2

Less other receipts............... \1\ 6.01 ................

-----------------------------------

Part 171 Fee Collections Required... 341.8 367.1

===================================

Part 171 Billing Adjustments:\2\

Small Entity Allowance............ 4.9 5.0

Unpaid FY 1997 bills.............. ................ 3.0

Payments from prior year bills.... ................ -2.0

-----------------------------------

Subtotal........................ 4.9 6.0

===================================

Total Part 171 Billing.......... 346.7 373.1

------------------------------------------------------------------------

\1\ $6 million in excess collections from FY 1995 were available to

reduce FY 1996 annual fees.

\2\ These adjustments are necessary to ensure that the ``billed'' amount

results in the required collections. Positive amounts indicate amounts

billed that will not be collected in FY 1997.

As shown in Table I, the total amount of annual fees to be billed

in FY 1997 is $26.4M ($373.1-$346.7) or 7.6 percent higher than the

amount that was to be billed in annual fees in FY 1996. The NRC notes

that the reduction in the estimates of 10 CFR Part 170 fees for FY 1997

is primarily in the areas relating to the review of applications for

reactor operating licenses and the review of standard plant

applications. In addition, for the first time, the estimates take into

consideration an allowance for bad debt by estimating billings in the

fiscal year that are not projected to be collected in that fiscal year

and collections received in the current fiscal year as a result of

billings from a prior fiscal year. These adjustments to the annual fees

will allow the NRC to come closer to meeting its obligation to recover

approximately 100 percent of its budget authority through the

assessment of fees.

In addition to changes in 10 CFR Part 170 fees and other

adjustments, the number of licensees to pay fees in FY 1997 has

decreased compared to FY 1996. This decrease in the number of licensees

paying fees causes annual fees to increase by an additional 0.8

percent. For example, the Haddam Neck power reactor ceased operations

in December 1996 and the fuel has been permanently removed from the

reactor. Therefore, the utility will pay only a partial annual fee in

FY 1997. In addition, Massachusetts became an Agreement State on March

21, 1997, and regulatory authority over approximately 425 NRC materials

licenses was transferred to Massachusetts. These licensees will pay

only one half of the annual fee for FY 1997.

Third, an annual fee is established in Sec. 171.16(d), fee Category

1.E., for each certificate of compliance issued to the United States

Enrichment Corporation (USEC) on November 26, 1996, to operate the two

gaseous diffusion plants (GDPs) located at Paducah, Kentucky and at

Piketon, Ohio. The NRC assumed regulatory jurisdiction over the two

plants from the U.S. Department of Energy (DOE) on March 3, 1997.

Fourth, Footnote 1 of 10 CFR 171.16(d) is amended to provide for a

waiver of annual fees for FY 1997 for those materials licensees, and

holders of

[[Page 29202]]

certificates, registrations, and approvals who either filed for

termination of their licenses or approvals or filed for possession

only/storage licenses before October 1, 1996, and permanently ceased

licensed activities entirely by September 30, 1996. All other licensees

and approval holders who held a license or approval on October 1, 1996,

are subject to FY 1997 annual fees. This change is being made in

recognition of the fact that since the final FY 1996 rule was published

in April 1996, some licensees have filed requests for termination of

their licenses or certificates with the NRC. Other licensees have

either called or written to the NRC since the FY 1996 final rule became

effective requesting further clarification and information concerning

the annual fees assessed. The NRC is responding to these requests as

quickly as possible. However, the NRC was unable to respond and take

action on all such requests before the end of the fiscal year on

September 30, 1996. Similar situations existed after the FY 1991-1995

rules were published, and in those cases, the NRC provided an exemption

from the requirement that the annual fee is waived only when a license

is terminated before October 1 of each fiscal year.

Fifth, the NRC has amended the proration provisions in Sec. 171.17

for reactor and materials licensees. The reactor provision in

Sec. 171.17(a) is revised to reflect the changes in 10 CFR Part 50

relating to the decommissioning of power reactors which became

effective August 28, 1996 (61 FR 39278). The materials provision is

amended to recognize that licenses transferred to an Agreement State as

a result of a new Agreement are effectively terminated by the NRC, for

annual fee purposes, on the date that the Agreement with the State

becomes effective.

Sixth, Sec. 171.19 is amended to update fiscal year references and

to credit the partial payments made by certain licensees in FY 1997

either toward their total annual fee to be assessed or to make refunds,

if necessary. This section is amended to modify the annual fee billing

schedule for materials licenses terminated and new materials licenses

issued during the fiscal year.

The NRC will send a bill to reactors and major fuel cycle

facilities for the amount of the annual fee upon publication of the FY

1997 final rule. For these licensees, payment will be due on the

effective date of FY 1997 rule. Those materials licensees whose license

anniversary date during FY 1997 falls before the effective date of the

final FY 1997 rule will be billed during the anniversary month of the

license and continue to pay annual fees at the FY 1996 rate in FY 1997.

Those materials licensees whose license anniversary date falls on or

after the effective date of the final FY 1997 rule will be billed, at

the FY 1997 revised rates, during the anniversary month of the license

and payment will be due on the date of the invoice.

The final amendments to 10 CFR Part 171 do not change the

underlying basis for 10 CFR Part 171; that is, charging a class of

licensees for NRC costs attributable to that class of licensees. The

final changes are consistent with the NRC's FY 1995 final rule

indicating that, for the period FY 1996-1999, the expectation is that

annual fees would be adjusted by the percentage change (plus or minus)

to the NRC's budget authority adjusted for NRC offsetting receipts and

the number of licensees paying annual fees.

IV. Section-by-Section Analysis

The following analysis of those sections that will be amended by

this final rule provides additional explanatory information. All

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

Regulations.

Part 170

Section 170.11--Exemptions

This section is amended to add a new paragraph indicating that

amendments to materials portable gauge licenses issued in accordance

with NUREG-1556, Volume 1, that change only the name of the Radiation

Safety Officer (RSO) are exempt from amendment fees. No amendment fees

will be assessed for the amendments issued in accordance with NUREG-

1556, Volume 1, to portable gauge licenses because the regulatory

program includes commitments from the licensee concerning RSO

qualifications and if those commitments are included in the amendment

application then there is no technical review conducted by the NRC.

NUREG-1556, Volume 1, is expected to be finalized in May 1997.

Section 170.20--Average Cost per Professional Staff-Hour

This section is amended to establish two professional staff-hour

rates based on FY 1997 budgeted costs--one for the reactor program and

one for the nuclear material and nuclear waste program. Accordingly,

the NRC reactor direct staff-hour rate for FY 1997 for all activities

whose fees are based on full cost under Sec. 170.21 is $131 per hour,

or $233,055 per direct FTE. The NRC nuclear material and nuclear waste

direct staff-hour rate for all materials activities whose fees are

based on full cost under Sec. 170.31 is $125 per hour, or $222,517 per

direct FTE. The rates are based on the FY 1997 direct FTEs and NRC

budgeted costs that are not recovered through the appropriation from

the NWF or the General Fund. The NRC has continued the use of cost

center concepts established in FY 1995 in allocating certain costs to

the reactor and materials programs in order to more closely align

budgeted costs with specific classes of licensees. The method used to

determine the two professional hourly rates is as follows:

1. Direct program FTE levels are identified for both the reactor

program and the nuclear material and waste program.

2. Direct contract support, which is the use of contract or other

services in support of the line organization's direct program, is

excluded from the calculation of the hourly rate because the costs for

direct contract support are charged directly through the various

categories of fees.

3. All other direct program costs (i.e., Salaries and Benefits,

Travel) represent ``in-house'' costs and are to be allocated by

dividing them uniformly by the total number of direct FTEs for the

program. In addition, salaries and benefits plus contracts for general

and administrative support are allocated to each program based on that

program's salaries and benefits. This method results in the following

costs which are included in the hourly rates.

Table II.--FY 1997 Budget Authority To Be Included in Hourly Rates

[Dollars in millions]

------------------------------------------------------------------------

Reactor Materials

program program

------------------------------------------------------------------------

Salary and Benefits..................... $155.3 $48.4

Allocated Agency Management & Support... 42.5 13.2

-------------------------------

[[Page 29203]]

Subtotal.......................... 197.8 61.6

===============================

General and Administrative Support

(G&A):

Program Travel and Other Support...... 9.6 2.5

Allocated Agency Management and

Support.............................. 72.1 22.4

-------------------------------

Subtotal.......................... 81.7 24.9

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

===============================

Total Budget Included in Hourly

Rate............................. 279.4 86.5

Program Direct FTEs................... 1,196.9 388.7

Rate per Direct FTE................... 233,055 222,517

Professional Hourly Rate.............. 131 125

------------------------------------------------------------------------

Dividing the $279.4 million budget for the reactor program by the

number of reactor program direct FTEs (1196.9) results in a rate for

the reactor program of $233,055 per FTE for FY 1997. Dividing the $86.5

million budget for the nuclear materials and nuclear waste program by

the number of program direct FTEs (388.7) results in a rate of $222,517

per FTE for FY 1997. The Direct FTE Hourly Rate for the reactor program

is $131 per hour (rounded to the nearest whole dollar). This rate is

calculated by dividing the cost per direct FTE ($233,055) by the number

of productive hours in one year (1776 hours) as indicated in the

revised OMB Circular A-76, ``Performance of Commercial Activities.''

The Direct FTE Hourly Rate for the materials program is $125 per hour

(rounded to the nearest whole dollar). This rate is calculated by

dividing the cost per direct FTE ($222,517) by the number of productive

hours in one year (1776 hours). The FY 1997 rate is slightly higher

than the FY 1996 rate due in part to the Federal pay raise given to all

Federal employees.

Section 170.21--Schedule of Fees for Production and Utilization

Facilities, Review of Standard Reference Design Approvals, Special

Projects, Inspections and Import and Export Licenses

The NRC is revising the licensing and inspection fees in this

section, which are based on full-cost recovery, to reflect FY 1997

budgeted costs and to recover costs incurred by the NRC in providing

licensing and inspection services to identifiable recipients. The fees

assessed for services provided under the schedule are based on the

professional hourly rate, as shown in Sec. 170.20, for the reactor

program and any direct program support (contractual services) costs

expended by the NRC. Any professional hours expended on or after the

effective date of the final rule will be assessed at the FY 1997 hourly

rate for the reactor program, as shown in Sec. 170.20. The fees in

Sec. 170.21 for the review of import and export licensing, facility

Category K, are adjusted for FY 1997 to reflect both the increase in

the hourly rate and the revised average professional staff hours needed

to process certain types of licensing actions.

For those applications currently on file and pending completion,

footnote 2 of Sec. 170.21 is revised to provide that professional hours

expended up to the effective date of the final rule will be assessed at

the professional rates in effect at the time the service was rendered.

For topical report applications currently on file that are still

pending completion of the review, and for which review costs have

reached the applicable fee ceiling established by the July 2, 1990,

rule, the costs incurred after any applicable ceiling was reached

through August 8, 1991, will not be billed to the applicant. Any

professional hours expended for the review of topical report

applications, amendments, revisions, or supplements to a topical report

on or after August 9, 1991, are assessed at the applicable rate

established by Sec. 170.20.

Section 170.31--Schedule of Fees for Materials Licenses and Other

Regulatory Services, Including Inspections and Import and Export

Licenses

The licensing and inspection fees in this section, which are based

on full-cost recovery, are modified to recover the FY 1997 costs

incurred by the NRC in providing licensing and inspection services to

identifiable recipients. The fees assessed for services provided under

the schedule are based on both the professional hourly rate as shown in

Sec. 170.20 for the materials program and any direct program support

(contractual services) costs expended by the NRC. Licensing fees based

on the average time to review an application (``flat'' fees) are

adjusted to reflect both the revised average professional staff hours

needed to process a licensing action (new license and amendment) and

the increase in the professional hourly rate from $120 per hour in FY

1996 to $125 per hour in FY 1997.

As previously indicated, the CFO Act requires that the NRC conduct

a biennial review of fees and other charges imposed by the agency for

its services and revise those charges to reflect the costs incurred in

providing the services. Consistent with the CFO Act requirement, the

NRC has completed its most recent review of license fees assessed by

the agency. The review focused on the flat fees that are charged to

nuclear materials users for licensing actions (new licenses and

amendments). The full cost license and inspection fees (e.g., for fuel

cycle facilities) and annual fees were not included in this biennial

review because the hourly rate for full cost fees and the annual fees

are reviewed and updated annually in order to recover 100 percent of

the NRC budget authority.

To determine the licensing flat fees for materials licensees and

applicants, the NRC uses historical data to determine the average

number of professional hours required to perform a licensing action for

each license category. These average hours are multiplied by the

materials program professional hourly rate of $125 per hour for FY

1997. The review indicated that the NRC needed to modify the average

number of hours on which the current licensing flat fees are based in

order to recover the cost of providing licensing services. The average

number of hours required for licensing actions was last reviewed and

modified in 1995 (60 FR 32218; June 20, 1995). Thus the revised hours

used to determine the fees

[[Page 29204]]

for FY 1997 reflect the changes in the licensing program that have

occurred since that time. For new licenses, the fees for FY 1997 are

increased in approximately 70 percent of the fee categories, while the

fees for amendments have increased in over 60 percent of the fee

categories.

The ``flat'' fees in Sec. 170.31 for the review of licensing

applications have increased from FY 1996 as a result of the increase in

the hourly rate and the results of the biennial review. The licensing

``flat'' fees are applicable to fee categories 1.C and 1.D; 2.B and

2.C; 3.A through 3.P; 4.B through 9.D, 10.B, 15.A through 15.E and 16.

Applications filed on or after the effective date of the final rule

will be subject to the fees in this final rule.

The amounts of the materials licensing ``flat'' fees were rounded

off so that the amounts would be de minimis and the resulting flat fee

would be convenient to the user. Fees under $1,000 are rounded to the

nearest $10. Fees that are greater than $1,000 but are less than

$100,000 are rounded to the nearest $100. Fees that are greater than

$100,000 are rounded to the nearest $1,000.

For those licensing, inspection, and review fees that are based on

full-cost recovery (cost for professional staff hours plus any

contractual services), the materials program hourly rate of $125, as

shown in Sec. 170.20, applies to those professional staff hours

expended on or after the effective date of the final rule.

In addition to these changes, the NRC is clarifying how it would

recover the costs of post-implementation reviews of changes licensees

make without prior NRC review; for example, changes under Secs. 50.54,

50.59 and 70.32. Licensees will be billed for post-implementation

reviews of these changes under Secs. 170.21 and 170.31, beginning with

the effective date of the FY 1997 final fee rule. There will be no

change in how fees are assessed for any pre-implementation interactions

including any review prior to licensee submissions, between the NRC and

licensees. As in the past, any pre-implementation interaction will not

be fee-bearing. The NRC intends to inform reactor licensees, in the

near future, that their submittals under Sec. 50.54 (a), (p) and (q)

should not ask for pre-implementation reviews. Instead, licensees are

required to perform their analyses, implement their changes (if the

analyses show that the changes do not degrade plans the NRC has already

approved), and make their submittals under the relevant paragraph of

Sec. 50.54. The NRC will then verify that the changes are in compliance

with Sec. 50.54.

Part 171

Section 171.13--Notice

The language in this section is revised to indicate that in the

unlikely event the NRC is unable to publish a fee rule with an

effective date within the current fiscal year, the NRC will continue to

assess fees at the same rates as the previous fiscal year. The NRC

believes that it will be able to publish an effective fee rule within a

current fiscal year as it has done since FY 1991 when 100 percent fee

recovery was initiated. However, the possibility exists that the NRC

might be unable to establish fees for a current fiscal year in a timely

manner through the notice and comment process. Therefore, as a

contingency plan for meeting the requirement of OBRA-90, the NRC is

amending Sec. 171.13 to indicate that if the NRC is unable to

promulgate a final fee rule within a current fiscal year, then fees

will continue to be assessed at the same rates as the previous fiscal

year. The NRC will continue to work diligently to publish the fee rules

at the earliest possible time during the fiscal year.

Section 171.15--Annual Fee: Reactor Operating Licenses

The annual fees in this section are revised as described below.

Paragraphs (a), (b), (c)(1), (c)(2), (e), and (f) are revised to comply

with the requirement of OBRA-90 that the NRC recover approximately 100

percent of its budget for FY 1997.

Paragraph (b) is revised in its entirety to establish the FY 1997

annual fee for operating power reactors and to change fiscal year

references from FY 1996 to FY 1997. The fees are established by

increasing FY 1996 annual fees (prior to rounding) by 8.4 percent. In

the FY 1995 final rule, the NRC stated it would stabilize annual fees

by adjusting the annual fees only by the percentage change (plus or

minus) in NRC's total budget authority and adjustments based on changes

in 10 CFR Part 170 fees as well as in the number of licensees paying

the fees. The first adjustment to the annual fees using this method

occurred in FY 1996 when all annual fees were decreased 6.5 percent

below the FY 1995 annual fees. The activities comprising the base FY

1995 annual fee and the FY 1995 additional charge (surcharge) are

listed in paragraphs (b) and (c) for convenience purposes.

With respect to Big Rock Point, a smaller, older reactor, the NRC

hereby grants a partial exemption from the FY 1997 annual fees similar

to FY 1996 based on a request filed with the NRC in accordance with

Sec. 171.11.

Each operating power reactor, except Big Rock Point, will pay an

annual fee of $2,978,000 in FY 1997.

Paragraph (e) is revised to show the amount of the FY 1997 annual

fee for nonpower (test and research) reactors. In FY 1997, the annual

fee of $57,300 is 8.4 percent above the FY 1996 level. The NRC will

continue to grant exemptions from the annual fee to Federally-owned and

State-owned research and test reactors that meet the exemption criteria

specified in Sec. 171.11(a)(2).

Paragraph (f) is revised to change fiscal year date references.

Section 171.16--Annual fees: Materials Licensees, Holders of

Certificates of Compliance, Holders of Sealed Source and Device

Registrations, Holders of Quality Assurance Program Approvals, and

Government Agencies Licensed by the NRC

Section 171.16(c) covers the fees assessed for those licensees that

can qualify as small entities under NRC size standards. The NRC will

continue to assess two fees for licensees that qualify as small

entities under the NRC's size standards. In general, licensees with

gross annual receipts of $350,000 to $5 million pay a maximum fee of

$1,800. A second or lower-tier small entity fee of $400 is in place for

small entities with gross annual receipts of less than $350,000 and

small governmental jurisdictions with a population of less than 20,000.

No change in the amount of the small entity fees is being made because

the small entity fees are not based on the budget but are established

at a level to reduce the impact of fees on small entities. The small

entity fees are shown in the final rule for convenience. A materials

licensee may pay a reduced annual fee if the licensee qualifies as a

small entity under the NRC's size standards and certifies that it is a

small entity using NRC Form 526.

Section 171.16(d) is revised to establish the FY 1997 annual fees

for materials licensees, including Government agencies, licensed by the

NRC. These fees were determined by increasing the FY 1996 annual fees

(prior to rounding) by 8.4 percent.

In addition, an annual fee is established in Sec. 171.16(d), fee

Category 1.E., for each Certificate of Compliance issued to the USEC on

November 26, 1996, to operate the two gaseous diffusion plants (GDPs)

located at Paducah, Kentucky, and at Piketon, Ohio. The NRC announced

its intent to issue the compliance certificates to USEC on September

19, 1996 (61 FR 49360). The NRC assumed regulatory jurisdiction over

the two plants from

[[Page 29205]]

DOE on March 3, 1997. Because the two plants have been certified in FY

1997, the NRC is establishing an annual fee of $2,606,000 for each of

these two facilities. The NRC methodology for determining annual fees

for major fuel facilities was explained in the FY 1995 final fee rule

published in the Federal Register on June 20, 1995 (60 FR 32234). As

indicated in the Federal Register, the methodology can be applied to

determine annual fees for new licenses or certificates. The NRC has

applied the methodology to the USEC facilities and has concluded that

the relative weighted safety and safeguards factors for these

facilities is similar to a high enriched uranium facility. Therefore,

the NRC is establishing the annual fee for each USEC uranium enrichment

facility at $2,606,000, the same as that for a high enrichment facility

(fee category 1.A.(1)(a)). Because the certifications are in effect for

the last six months of FY 1997, the NRC will assess one-half of the

annual fee or $1,303,000 to USEC for each certificate for FY 1997.

The amount or range of the FY 1997 annual fees for all materials

licensees is summarized as follows:

Materials Licenses--Annual Fee Ranges

------------------------------------------------------------------------

Category of license Annual fees

------------------------------------------------------------------------

Part 70--High enriched fuel facility. $2,606,000.

Part 70--Low enriched fuel facility.. $1,279,000.

Part 40--UF6 conversion facility..... $648,000.

Part 40--Uranium recovery facilities. $22,300 to $61,800.

Part 30--Byproduct Material Licenses. $490 to $23,500.\1\

Part 71--Transportion of Radioactive $1,000 to $78,900.

Material.

Part 72--Independent Storage of Spent $283,000.

Nuclear Fuel.

------------------------------------------------------------------------

\1\ Excludes the annual fee for a few military ``master'' materials

licenses of broad-scope issued to Government agencies, which is

$421,000.

Footnote 1 of 10 CFR 171.16(d) is amended to provide a waiver of

the annual fees for materials licensees, and holders of certificates,

registrations, and approvals, who either filed for termination of their

licenses or approvals or filed for possession only/storage only

licenses before October 1, 1996, and permanently ceased licensed

activities entirely by September 30, 1996. All other licensees and

approval holders who held a license or approval on October 1, 1996, are

subject to the FY 1997 annual fees.

Section 171.17--Proration

The NRC is amending the proration provisions in Sec. 171.17 for

reactor and materials licenses. Paragraph (a) is amended to reflect the

changes in 10 CFR Part 50 relating to the decommissioning of power

reactors which became effective August 28, 1996 (61 FR 39278). Reactor

annual fees will be prorated based on the requirements of

Sec. 50.82(a)(2) that upon docketing of the certifications for

permanent cessation of operations and permanent removal of fuel from

the reactor vessel or when a final legally effective order to

permanently cease operations has come into effect, the 10 CFR Part 50

license no longer authorizes operation of the reactor or emplacement or

retention of fuel into the reactor vessel. Previously the proration of

reactor annual fees was based on the date of issuance of the possession

only license (POL).

Paragraph (b) is amended to recognize that materials licenses

transferred to a new Agreement State are considered terminated by the

NRC for annual fee purposes, on the date that the Agreement with the

State becomes effective. The State of Massachusetts became an Agreement

State on March 21, 1997, and approximately 425 materials licenses were

transferred to the State on the effective date of the Agreement. The

NRC will assess the annual fees for those licenses being transferred to

the State of Massachusetts using the current proration provisions of

Sec. 171.17(b) whereby the licenses will be considered terminated on

the effective date of the Agreement with Massachusetts.

New licenses issued during FY 1997 will receive a prorated annual

fee in accordance with the current proration provision of Sec. 171.17.

For example, those new materials licenses issued during the period

October 1 through March 31 of the FY will be assessed one-half the

annual fee in effect on the anniversary date of the license. New

materials licenses issued on or after April 1, 1997, will not be

assessed an annual fee for FY 1997. Thereafter, the full annual fee is

due and payable each subsequent fiscal year on the anniversary date of

the license. Beginning June 11, 1996, (the effective date of the FY

1996 final rule), affected materials licensees will be subject to the

annual fee in effect on the anniversary date of the license. Affected

licensees who are not sure of the anniversary date of their materials

license should check the original issue date of the license.

Section 171.19--Payment

Paragraph (b) is revised to give credit for partial payments made

by certain licensees in FY 1997 toward their FY 1997 annual fees. The

NRC anticipates that the first, second, and third quarterly payments

for FY 1997 will have been made by operating power reactor licensees

and some large materials licensees before the final rule becomes

effective. Therefore, the NRC will credit payments received for those

quarterly annual fee assessments toward the total annual fee to be

assessed. The NRC will adjust the fourth quarterly bill to recover the

full amount of the revised annual fee or to make refunds, as necessary.

Payment of the annual fee is due on the date of the invoice and

interest accrues from the invoice date. However, interest will be

waived if payment is received within 30 days from the invoice date.

Paragraph (c) is revised to update fiscal year references.

Paragraph (d) is revised to modify the billing schedule for terminated

materials licenses and new materials licenses. Licenses subject to the

annual fee that are terminated during the fiscal year but prior to the

anniversary month of the license will be billed upon termination for

the fee in effect at the time of the billing. New licenses subject to

the annual fee will be billed in the month the license is issued or in

the next available monthly billing for the fee in effect on the

anniversary date of the license. Thereafter, annual fees for new

licenses will be assessed in the anniversary month of the license.

As in FY 1996, the NRC will continue to bill annual fees for most

materials licenses on the anniversary date of the license (licensees

whose annual fees are $100,000 or more will continue to be assessed

quarterly). The annual fee assessed will be the fee in effect on the

license anniversary date. This applies to those materials licenses in

the following fee categories: 1.C. and 1.D.; 2.A.(2) through 2.C.; 3.A.

through 3.P.; 4.A. through 9.D., and 10.B. For annual fee purposes, the

anniversary date of the materials license is considered to be the first

day of the month in which the original materials license was issued.

For example, if the original materials license was issued on June 17

then, for annual fee purposes, the anniversary date of the materials

license is June 1 and the licensee would continue to be billed in June

of each year for the annual fee in effect on June 1. Materials

licensees with anniversary dates in FY 1997 before the effective date

of the FY 1997 final rule will be billed during the anniversary month

of the license and continue to pay annual fees at the FY

[[Page 29206]]

1996 rate in FY 1997. Those materials licensees with license

anniversary dates falling on or after the effective date of the FY 1997

final rule will be billed, at the FY 1997 revised rates, during their

anniversary month of their license and payment will be due on the date

of the invoice.

During the past six years, many licensees have indicated that,

although they held a valid NRC license authorizing the possession and

use of special nuclear, source, or byproduct material, they were either

not using the material to conduct operations or had disposed of the

material and no longer needed the license. In response, the NRC has

consistently stated that annual fees are assessed based on whether a

licensee holds a valid NRC license that authorizes possession and use

of radioactive material. Whether or not a licensee is actually

conducting operations using the material is a matter of licensee

discretion. The NRC cannot control whether a licensee elects to possess

and use radioactive material once it receives a license from the NRC.

Therefore, the NRC reemphasizes that the annual fee will be assessed

based on whether a licensee holds a valid NRC license that authorizes

possession and use of radioactive material. To remove any uncertainty,

the NRC issued minor clarifying amendments to 10 CFR 171.16, footnotes

1 and 7 on July 20, 1993 (58 FR 38700).

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 impact statement nor an environmental impact

assessment has been prepared for the final regulation. By its very

nature, this regulatory action does not affect the environment, and

therefore, no environmental justice issues are raised.

VI. Paperwork Reduction Act Statement

This final rule contains no information collection requirements

and, therefore, is not subject to the requirements of the Paperwork

Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

VII. Regulatory Analysis

With respect to 10 CFR Part 170, this final rule was developed

pursuant to Title V of the Independent Offices Appropriation Act of

1952 (IOAA) (31 U.S.C. 9701) and the Commission's fee guidelines. When

developing these guidelines the Commission took into account guidance

provided by the U.S. Supreme Court on March 4, 1974, in its decision of

National Cable Television Association, Inc. v. United States, 415 U.S.

36 (1974) and Federal Power Commission v. New England Power Company,

415 U.S. 345 (1974). In these decisions, the Court held that the IOAA

authorizes an agency to charge fees for special benefits rendered to

identifiable persons measured by the ``value to the recipient'' of the

agency service. The meaning of the IOAA was further clarified on

December 16, 1976, by four decisions of the U.S. Court of Appeals for

the District of Columbia: National Cable Television Association v.

Federal Communications Commission, 554 F.2d 1094 (D.C. Cir. 1976);

National Association of Broadcasters v. Federal Communications

Commission, 554 F.2d 1118 (D.C. Cir. 1976); Electronic Industries

Association v. Federal Communications Commission, 554 F.2d 1109 (D.C.

Cir. 1976) and Capital Cities Communication, Inc. v. Federal

Communications Commission, 554 F.2d 1135 (D.C. Cir. 1976). These

decisions of the Courts enabled the Commission to develop fee

guidelines that are still used for cost recovery and fee development

purposes.

The Commission's fee guidelines were upheld on August 24, 1979, by

the U.S. Court of Appeals for the Fifth Circuit in Mississippi Power

and Light Co. v. U.S. Nuclear Regulatory Commission, 601 F.2d 223 (5th

Cir. 1979), cert. denied, 444 U.S. 1102 (1980). The Court held that--

(1) The NRC had the authority to recover the full cost of

providing services to identifiable beneficiaries;

(2) The NRC could properly assess a fee for the costs of

providing routine inspections necessary to ensure a licensee's

compliance with the Atomic Energy Act and with applicable

regulations;

(3) The NRC could charge for costs incurred in conducting

environmental reviews required by NEPA;

(4) The NRC properly included the costs of uncontested hearings

and of administrative and technical support services in the fee

schedule;

(5) The NRC could assess a fee for renewing a license to operate

a 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 Public Law 101-508, the Omnibus Budget Reconciliation Act of

1990 (OBRA-90) which required that for FYs 1991 through 1995,

approximately 100 percent of the NRC budget authority be recovered

through the assessment of fees. OBRA-90 was amended in 1993 to extend

the 100 percent fee recovery requirement for NRC through FY 1998. To

accomplish this statutory requirement, the NRC, in accordance with

Sec. 171.13, is publishing the final amount of the FY 1997 annual fees

for operating reactor licensees, fuel cycle licensees, materials

licensees, and holders of Certificates of Compliance, registrations of

sealed source and devices and QA program approvals, and Government

agencies. OBRA-90 and the Conference Committee Report specifically

state that--

(1) The annual fees be based on the Commission's FY 1997 budget

of $476.8 million less the amounts collected from Part 170 fees and

the funds directly appropriated from the NWF to cover the NRC's high

level waste program and the general fund related to commercial

vitrification of waste at the Department of Energy Hanford,

Washington site.

(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.

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).

The NRC's FY 1991 annual fee rule was largely upheld by the D.C.

Circuit Court of Appeals in Allied Signal v. NRC, 988 F.2d 146 (D.C.

Cir. 1993).

VIII. Regulatory Flexibility Analysis

The NRC is required by the Omnibus Budget Reconciliation Act of

1990 to recover approximately 100 percent of its budget authority

through the assessment of user fees. OBRA-90 further requires that the

NRC establish a schedule of charges that fairly and equitably allocates

the aggregate amount of these charges among licensees.

This final rule establishes the schedules of fees that are

necessary to implement the Congressional mandate for FY 1997. The final

rule results in an increase in the annual fees charged to all

licensees, and holders of certificates, registrations, and approvals.

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.

[[Page 29207]]

604 to prepare a regulatory flexibility analysis. Therefore, in

compliance with the law, Attachment 1 to the Regulatory Flexibility

Analysis (Appendix A to this document) is the small entity compliance

guide for FY 1997.

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 the NRC has determined that this action is a major

rule and has verified this 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, 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: 31 U.S.C. 9701, 96 Stat. 1051; sec. 301, Pub. L. 92-

314, 86 Stat. 222 (42 U.S.C. 2201w); sec. 201, Pub. L. 93-4381, 88

Stat. 1242, as amended (42 U.S.C. 5841); sec. 205, Pub. L. 101-576,

104 Stat. 2842, (31 U.S.C. 901).

2. In Sec. 170.11, paragraph (a)(11) is added to read as follows:

Sec. 170.11 Exemptions.

(a) * * *

(11) Materials portable gauge licenses issued in accordance with

NUREG-1556, Volume 1, that are amended to change only the name of the

Radiation Safety Officer. This exemption does not apply to those

materials portable gauge licenses that also authorize possession and

use of nuclear materials for other activities.

* * * * *

3. Section 170.20 is revised to read as follows:

Sec. 170.20 Average cost per professional staff-hour.

Fees for permits, licenses, amendments, renewals, special projects,

Part 55 requalification and replacement examinations and tests, other

required reviews, approvals, and inspections under Secs. 170.21 and

170.31 that are based upon the full costs for the review or inspection

will be calculated using the following applicable professional staff-

hour rates:

Reactor Program (Sec. 170.21 Activities).. $131 per hour.

Nuclear Materials and Nuclear Waste Program $125 per hour.

(Sec. 170.31 Activities).

4. In Sec. 170.21, the introductory text, Category K, and footnotes

1 and 2 to the table are revised to read as follows:

Sec. 170.21 Schedule of fees for production and utilization

facilities, review of standard referenced design approvals, special

projects, inspections and import and export licenses.

Applicants for construction permits, manufacturing licenses,

operating licenses, import and export licenses, approvals of facility

standard reference designs, requalification and replacement

examinations for reactor operators, and special projects and holders of

construction permits, licenses, and other approvals shall pay fees for

the following categories of services.

Schedule of Facility Fees

[See footnotes at end of table]

------------------------------------------------------------------------

Facility categories and type of fees Fees1 2

------------------------------------------------------------------------

* * * *

* * *

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 pursuant to 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..................... $8,100

Amendment................................... $8,100

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..................... $5,000

Amendment................................... $5,000

3. Application for export of components

requiring foreign government assurances only:

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

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

4. Application for export of facility components

and equipment not requiring Commissioner

review, Executive Branch review, or foreign

government assurances:

Application-new license..................... $1,300

Amendment................................... $1,300

[[Page 29208]]

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................................... $190

------------------------------------------------------------------------

\1\ Fees will not be charged for orders issued by the Commission

pursuant to Sec. 2.202 of this chapter or for amendments resulting

specifically from the requirements of these types of Commission

orders. Fees will be charged for approvals issued under a specific

exemption provision of the Commission's regulations under Title 10 of

the Code of Federal Regulations (e.g., Secs. 50.12, 73.5) and any

other sections now or hereafter in effect regardless of whether the

approval is in the form of a license amendment, letter of approval,

safety evaluation report, or other form. Fees for licenses in this

schedule that are initially issued for less than full power are based

on review through the issuance of a full power license (generally full

power is considered 100 percent of the facility's full rated power).

Thus, if a licensee received a low power license or a temporary

license for less than full power and subsequently receives full power

authority (by way of license amendment or otherwise), the total costs

for the license will be determined through that period when authority

is granted for full power operation. If a situation arises in which

the Commission determines that full operating power for a particular

facility should be less than 100 percent of full rated power, the

total costs for the license will be at that determined lower operating

power level and not at the 100 percent capacity.

\2\ Full cost fees will be determined based on the professional staff

time and appropriate contractual support services expended. For

applications currently on file and for which fees are determined based

on the full cost expended for the review, the professional staff hours

expended for the review of the application up to the effective date of

the final rule will be determined at the professional rates in effect

at the time the service was provided. For those applications currently

on file for which review costs have reached an applicable fee ceiling

established by the June 20, 1984, and July 2, 1990, rules but are

still pending completion of the review, the cost incurred after any

applicable ceiling was reached through January 29, 1989, will not be

billed to the applicant. Any professional staff-hours expended above

those ceilings on or after January 30, 1989, will be assessed at the

applicable rates established by Sec. 170.20, as appropriate, except

for topical reports whose costs exceed $50,000. Costs which exceed

$50,000 for any topical report, amendment, revision or supplement to a

topical report completed or under review from January 30, 1989,

through August 8, 1991, will not be billed to the applicant. Any

professional hours expended on or after August 9, 1991, will be

assessed at the applicable rate established in Sec. 170.20. In no

event will the total review costs be less than twice the hourly rate

shown in Sec. 170.20.

* * * * * * *

5. Section 170.31 is revised to read as follows:

Sec. 170.31 Schedule of fees for materials licenses and other

regulatory services, including inspections, and import and export

licenses.

Applicants for materials licenses, import and export licenses, and

other regulatory services and holders of materials licenses, or import

and export licenses shall pay fees for the following categories of

services. This schedule includes fees for health and safety and

safeguards inspections where applicable.

Schedule of Materials Fees

[See footnotes at end of table]

------------------------------------------------------------------------

Category of materials licenses and type of fees

\1\ Fee 2 3

------------------------------------------------------------------------

1. Special nuclear material:

A. Licenses for possession and use of 200

grams or more of plutonium in unsealed

form or 350 grams or more of contained U-

235 in unsealed form or 200 grams or more

of U-233 in unsealed form. This includes

applications to terminate licenses as well

as licenses authorizing possession only:

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

Inspections Full Cost.

B. Licenses for receipt and storage of

spent fuel at an independent spent fuel

storage installation (ISFSI):

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

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

C. Licenses for possession and use of

special nuclear material in sealed sources

contained in devices used in industrial

measuring systems, including x-ray

fluorescence analyzers: \4\

Application--New license............... $580.

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

D. All other special nuclear material

licenses, except licenses authorizing

special nuclear material in unsealed form

in combination that would constitute a

critical quantity, as defined in Sec.

150.11 of this chapter, for which the

licensee shall pay the same fees as those

for Category 1A: \4\

Application--New license............... $780.

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

E. Licenses or certificates for

construction and operation of a uranium

enrichment facility:

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

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

2. Source material:

A. (1) Licenses for possession and use of

source material in recovery operations

such as milling, in-situ leaching, heap-

leaching, refining uranium mill

concentrates to uranium hexafluoride, ore

buying stations, ion exchange facilities

and in processing of ores containing

source material for extraction of metals

other than uranium or thorium, including

licenses authorizing the possession of

byproduct waste material (tailings) from

source material recovery operations, as

well as licenses authorizing the

possession and maintenance of a facility

in a standby mode:

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

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

(2) Licenses that authorize the receipt of

byproduct material, as defined in Section

11e(2) of the Atomic Energy Act, from

other persons for possession and disposal

except those licenses subject to fees in

Category 2.A.(1).

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

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

[[Page 29209]]

(3) Licenses that authorize the receipt of

byproduct material, as defined in Section

11e(2) of the Atomic Energy Act, from

other persons for possession and disposal

incidental to the disposal of the uranium

waste tailings generated by the licensee's

milling operations, except those licenses

subject to the fees in Category 2.A.(1):

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

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

B. Licenses which authorize the possession,

use and/or installation of source material

for shielding:

Application--New license............... $130.

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

C. All other source material licenses:

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

Amendment.............................. $580.

3. Byproduct material:

A. Licenses of broad scope for possession

and use of byproduct material issued

pursuant to Parts 30 and 33 of this

chapter for processing or manufacturing of

items containing byproduct material for

commercial distribution:

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

Amendment.............................. $550.

B. Other licenses for possession and use of

byproduct material issued pursuant to Part

30 of this chapter for processing or

manufacturing of items containing

byproduct material for commercial

distribution:

Application--New license............... $1,600.

Amendment.............................. $580.

C. Licenses issued pursuant to Secs.

32.72, 32.73, and/or 32.74 of this chapter

authorizing the processing or

manufacturing and distribution or

redistribution of radiopharmaceuticals,

generators, reagent kits and/or sources

and devices containing byproduct material.

This category does not apply to licenses

issued to nonprofit educational

institutions whose processing or

manufacturing is exempt under 10 CFR

170.11(a)(4). These licenses are covered

by fee Category 3D:

Application--New license............... $7,100.

Amendment.............................. $650.

D. Licenses and approvals issued pursuant

to Secs. 32.72, 32.73, and/or 32.74 of

this chapter authorizing distribution or

redistribution of radiopharmaceuticals,

generators, reagent kits and/or sources or

devices not involving processing of

byproduct material. This category includes

licenses issued pursuant to Secs. 32.72,

32.73, and/or 32.74 to nonprofit

educational institutions whose processing

or manufacturing is exempt under 10 CFR

170.11(a)(4):

Application--New license............... $2,000.

Amendment.............................. $440.

E. Licenses for possession and use of

byproduct material in sealed sources for

irradiation of materials in which the

source is not removed from its shield

(self-shielded units):

Application--New license............... $1,100.

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

F. Licenses for possession and use of less

than 10,000 curies of byproduct material

in sealed sources for irradiation of

materials in which the source is exposed

for irradiation purposes. This category

also includes underwater irradiators for

irradiation of materials where the source

is not exposed for irradiation purposes:

Application--New license............... $2,000.

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

G. Licenses for possession and use of

10,000 curies or more of byproduct

material in sealed sources for irradiation

of materials in which the source is

exposed for irradiation purposes. This

category also includes underwater

irradiators for irradiation of materials

where the source is not exposed for

irradiation purposes:

Application--New license............... $4,700.

Amendment.............................. $760.

H. Licenses issued pursuant to Subpart A of

Part 32 of this chapter to distribute

items containing byproduct material that

require device review to persons exempt

from the licensing requirements of Part 30

of this chapter, except specific licenses

authorizing redistribution of items that

have been authorized for distribution to

persons exempt from the licensing

requirements of Part 30 of this chapter:

Application--New license............... $2,800.

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

I. Licenses issued pursuant to Subpart A of

Part 32 of this chapter to distribute

items containing byproduct material or

quantities of byproduct material that do

not require device evaluation to persons

exempt from the licensing requirements of

Part 30 of this chapter, except for

specific licenses authorizing

redistribution of items that have been

authorized for distribution to persons

exempt from the licensing requirements of

Part 30 of this chapter:

Application--New license............... $4,500.

Amendment.............................. $1,100.

J. Licenses issued pursuant to Subpart B of

Part 32 of this chapter to distribute

items containing byproduct material that

require sealed source and/or device review

to persons generally licensed under Part

31 of this chapter, except specific

licenses authorizing redistribution of

items that have been authorized for

distribution to persons generally licensed

under Part 31 of this chapter:

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

Amendment.............................. $310.

K. Licenses issued pursuant to Subpart B of

Part 32 of this chapter to distribute

items containing byproduct material or

quantities of byproduct material that do

not require sealed source and/or device

review to persons generally licensed under

Part 31 of this chapter, except specific

licenses authorizing redistribution of

items that have been authorized for

distribution to persons generally licensed

under Part 31 of this chapter:

Application--New license............... $1,000.

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

[[Page 29210]]

L. Licenses of broad scope for possession

and use of byproduct material issued

pursuant to Parts 30 and 33 of this

chapter for research and development that

do not authorize commercial distribution:

Application--New license............... $5,600.

Amendment.............................. $780.

M. Other licenses for possession and use of

byproduct material issued pursuant to Part

30 of this chapter for research and

development that do not authorize

commercial distribution:

Application--New license............... $1,900.

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

N. Licenses that authorize services for

other licensees, except:

(1) Licenses that authorize only

calibration and/or leak testing

services are subject to the fees

specified in fee Category 3P; and

(2) Licenses that authorize waste

disposal services are subject to the

fees specified in fee Categories 4A,

4B, and 4C:

Application--New license........... $2,100.

Amendment.......................... $510.

O. Licenses for possession and use of

byproduct material issued pursuant to Part

34 of this chapter for industrial

radiography operations:

Application--New license............... $4,400.

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

P. All other specific byproduct material

licenses, except those in Categories 4A

through 9D:

Application--New license............... $750.

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

4. Waste disposal and processing:

A. Licenses specifically authorizing the

receipt of waste byproduct material,

source material, or special nuclear

material from other persons for the

purpose of contingency storage or

commercial land disposal by the licensee;

or licenses authorizing contingency

storage of low-level radioactive waste at

the site of nuclear power reactors; or

licenses for receipt of waste from other

persons for incineration or other

treatment, packaging of resulting waste

and residues, and transfer of packages to

another person authorized to receive or

dispose of waste material:

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

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

B. Licenses specifically authorizing the

receipt of waste byproduct material,

source material, or special nuclear

material from other persons for the

purpose of packaging or repackaging the

material. The licensee will dispose of the

material by transfer to another person

authorized to receive or dispose of the

material:

Application--New license............... $2,600.

Amendment.............................. $540.

C. Licenses specifically authorizing the

receipt of prepackaged waste byproduct

material, source material, or special

nuclear material from other persons. The

licensee will dispose of the material by

transfer to another person authorized to

receive or dispose of the material:

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

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

5. Well logging:

A. Licenses for possession and use of

byproduct material, source material, and/

or special nuclear material for well

logging, well surveys, and tracer studies

other than field flooding tracer studies:

Application--New license............... $3,600.

Amendment.............................. $850.

B. Licenses for possession and use of

byproduct material for field flooding

tracer studies:

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

6. Nuclear laundries:

A. Licenses for commercial collection and

laundry of items contaminated with

byproduct material, source material, or

special nuclear material:

Application--New license............... $6,600.

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

7. Medical licenses:

A. Licenses issued pursuant to Parts 30,

35, 40, and 70 of this chapter for human

use of byproduct material, source

material, or special nuclear material in

sealed sources contained in teletherapy

devices:

Application--New license............... $3,600.

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

B. Licenses of broad scope issued to

medical institutions or two or more

physicians pursuant to Parts 30, 33, 35,

40, and 70 of this chapter authorizing

research and development, including human

use of byproduct material, except licenses

for byproduct material, source material,

or special nuclear material in sealed

sources contained in teletherapy devices:

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

Amendment.............................. $740.

C. Other licenses issued pursuant to Parts

30, 35, 40, and 70 of this chapter for

human use of byproduct material, source

material, and/or special nuclear material,

except licenses for byproduct material,

source material, or special nuclear

material in sealed sources contained in

teletherapy devices:

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

Amendment.............................. $460.

8. Civil defense:

A. Licenses for possession and use of

byproduct material, source material, or

special nuclear material for civil defense

activities:

Application--New license............... $590.

Amendment.............................. $410.

[[Page 29211]]

9. Device, product, or sealed source safety

evaluation:

A. Safety evaluation of devices or products

containing byproduct material, source

material, or special nuclear material,

except reactor fuel devices, for

commercial distribution:

Application--each device............... $3,700.

Amendment--each device................. $610.

B. Safety evaluation of devices or products

containing byproduct material, source

material, or special nuclear material

manufactured in accordance with the unique

specifications of, and for use by, a

single applicant, except reactor fuel

devices:

Application--each device............... $2,200.

Amendment--each device................. $1,100.

C. Safety evaluation of sealed sources

containing byproduct material, source

material, or special nuclear material,

except reactor fuel, for commercial

distribution:

Application--each source............... $940.

Amendment--each source................. $630.

D. Safety evaluation of sealed sources

containing byproduct material, source

material, or special nuclear material,

manufactured in accordance with the unique

specifications of, and for use by, a

single applicant, except reactor fuel:

Application--each source............... $480.

Amendment--each source................. $160.

10. Transportation of radioactive material:

A. Evaluation of casks, packages, and

shipping containers:

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

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

B. Evaluation of 10 CFR Part 71 quality

assurance programs:

Application--Approval.................. $350.

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

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

11. Review of standardized spent fuel

facilities:

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

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

12. Special projects:\5\

Approvals and preapplication/ licensing Full Cost.

activities.

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

13. A. Spent fuel storage cask Certificate of

Compliance:

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

Amendments, revisions, and supplements. Full Cost.

Reapproval............................. Full Cost.

B. Inspections related to spent fuel

storage cask

Certificate of Compliance.............. Full Cost.

C. Inspections related to storage of spent Full Cost.

fuel under Sec. 72.210 of this chapter.

14. Byproduct, source, or special nuclear

material licenses and other approvals

authorizing decommissioning, decontamination,

reclamation, or site restoration activities

pursuant to 10 CFR Parts 30, 40, 70, and 72 of

this chapter:

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

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

15. Import and Export licenses:

Licenses issued pursuant to 10 CFR Part 110

of this chapter for the import and export

only of special nuclear material, source

material, tritium and other byproduct

material, heavy water, or nuclear grade

graphite.

A. Application for export or import of high

enriched uranium and other materials,

including radioactive waste, which must be

reviewed by the Commissioners and the

Executive Branch, for example, those

actions under 10 CFR 110.40(b). This

category includes application for export

or import of radioactive wastes in

multiple forms from multiple generators or

brokers in the exporting country and/or

going to multiple treatment, storage or

disposal facilities in one or more

receiving countries.

Application-new license................ $8,100.

Amendment.............................. $8,100.

B. Application for export or import of

special nuclear material, source material,

tritium and other byproduct material,

heavy water, or nuclear grade graphite,

including radioactive waste, requiring

Executive Branch review but not

Commissioner review. This category

includes application for the export or

import of radioactive waste involving a

single form of waste from a single class

of generator in the exporting country to a

single treatment, storage and/or disposal

facility in the receiving country.

Application-new license................ $5,000.

Amendment.............................. $5,000.

C. Application for export of routine

reloads of low enriched uranium reactor

fuel and exports of source material

requiring only foreign government

assurances under the Atomic Energy Act.

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

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

D. Application for export or import of

other materials, including radioactive

waste, not requiring Commissioner review,

Executive Branch review, or foreign

government assurances under the Atomic

Energy Act. This category includes

application for export or import of

radioactive waste where the NRC has

previously authorized the export or import

of the same form of waste to or from the

same or similar parties, requiring only

confirmation from the receiving facility

and licensing authorities that the

shipments may proceed according to

previously agreed understandings and

procedures.

Application--new license............... $1,300.

Amendment.............................. $1,300.

[[Page 29212]]

E. Minor amendment of any export or import

license to extend the expiration date,

change domestic information, or make other

revisions which do not require in-depth

analysis, review, or consultations with

other agencies or foreign governments.

Amendment.............................. $190.

16. Reciprocity:

Agreement State licensees who conduct

activities under the reciprocity

provisions of 10 CFR 150.20.

Application (initial filing of Form $1,100.

241).

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

------------------------------------------------------------------------

\1\ Types of fees--Separate charges, as shown in the schedule, will be

assessed for preapplication consultations and reviews and applications

for new licenses and approvals, issuance of new licenses and

approvals, amendments and certain renewals to existing licenses and

approvals, safety evaluations of sealed sources and devices, and

certain inspections. The following guidelines apply to these charges:

(a) Application fees. Applications for new materials licenses and

approvals; applications to reinstate expired, terminated or inactive

licenses and approvals except those subject to fees assessed at full

costs, and applications filed by Agreement State licensees to register

under the general license provisions of 10 CFR 150.20, must be

accompanied by the prescribed application fee for each category,

except that applications for licenses covering more than one fee

category of special nuclear material or source material must be

accompanied by the prescribed application fee for the highest fee

category.

(b) License/approval/review fees. Fees for applications for new licenses

and approvals and for preapplication consultations and reviews subject

to full cost fees (fee Categories 1A, 1B, 1E, 2A, 4A, 5B, 10A, 11, 12,

13A, and 14) are due upon notification by the Commission in accordance

with Sec. 170.12 (b), (e), and (f).

(c) Renewal/reapproval fees. Applications subject to full cost fees (fee

Categories 1A, 1B, 1E, 2A, 4A, 5B, 10A, 11, 13A, and 14) are due upon

notification by the Commission in accordance with Sec. 170.12(d).

(d) Amendment/Revision Fees.

(1) Applications for amendments to licenses and approvals and revisions

to reciprocity initial applications, except those subject to fees

assessed at full costs, must be accompanied by the prescribed

amendment/revision fee for each license/revision affected. An

application for an amendment to a license or approval classified in

more than one fee category must be accompanied by the prescribed

amendment fee for the category affected by the amendment unless the

amendment is applicable to two or more fee categories in which case

the amendment fee for the highest fee category would apply. For those

licenses and approvals subject to full costs (fee Categories 1A, 1B,

1E, 2A, 4A, 5B, 10A, 11, 12, 13A, and 14), amendment fees are due upon

notification by the Commission in accordance with Sec. 170.12(c).

(2) An application for amendment to a materials license or approval that

would place the license or approval in a higher fee category or add a

new fee category must be accompanied by the prescribed application fee

for the new category.

(3) An application for amendment to a license or approval that would

reduce the scope of a licensee's program to a lower fee category must

be accompanied by the prescribed amendment fee for the lower fee

category.

(4) Applications to terminate licenses authorizing small materials

programs, when no dismantling or decontamination procedure is

required, are not subject to fees.

(e) Inspection fees. Inspections resulting from investigations conducted

by the Office of Investigations and nonroutine inspections that result

from third-party allegations are not subject to fees. The fees

assessed at full cost will be determined based on the professional

staff time required to conduct the inspection multiplied by the rate

established under Sec. 170.20 plus any applicable contractual support

services costs incurred. Inspection fees are due upon notification by

the Commission in accordance with Sec. 170.12(g).

\2\ Fees will not be charged for orders issued by the Commission

pursuant to 10 CFR 2.202 or for amendments resulting specifically from

the requirements of these types of Commission orders. However, fees

will be charged for approvals issued under a specific exemption

provision of the Commission's regulations under Title 10 of the Code

of Federal Regulations (e.g., 10 CFR 30.11, 40.14, 70.14, 73.5, and

any other sections now or hereafter in effect) regardless of whether

the approval is in the form of a license amendment, letter of

approval, safety evaluation report, or other form. In addition to the

fee shown, an applicant may be assessed an additional fee for sealed

source and device evaluations as shown in Categories 9A through 9D.

\3\ Full cost fees will be determined based on the professional staff

time and appropriate contractual support services expended. For those

applications currently on file and for which fees are determined based

on the full cost expended for the review, the professional staff hours

expended for the review of the application up to the effective date of

the final rule will be determined at the professional rates in effect

at the time the service was provided. For applications currently on

file for which review costs have reached an applicable fee ceiling

established by the June 20, 1984, and July 2, 1990, rules, but are

still pending completion of the review, the cost incurred after any

applicable ceiling was reached through January 29, 1989, will not be

billed to the applicant. Any professional staff-hours expended above

those ceilings on or after January 30, 1989, will be assessed at the

applicable rates established by Sec. 170.20, as appropriate, except

for topical reports whose costs exceed $50,000. Costs which exceed

$50,000 for each topical report, amendment, revision, or supplement to

a topical report completed or under review from January 30, 1989,

through August 8, 1991, will not be billed to the applicant. Any

professional hours expended on or after August 9, 1991, will be

assessed at the applicable rate established in Sec. 170.20. The

minimum total review cost is twice the hourly rate shown in Sec.

170.20.

\4\ Licensees paying fees under Categories 1A, 1B, and 1E are not

subject to fees under Categories 1C and 1D for sealed sources

authorized in the same license except in those instances in which an

application deals only with the sealed sources authorized by the

license. Applicants for new licenses that cover both byproduct

material and special nuclear material in sealed sources for use in

gauging devices will pay the appropriate application fee for fee

Category 1C only.

\5\ Fees will not be assessed for requests/reports submitted to the NRC:

(a) In response to a Generic Letter or NRC Bulletin that does not result

in an amendment to the license, does not result in the review of an

alternate method or reanalysis to meet the requirements of the Generic

Letter, or does not involve an unreviewed safety issue;

(b) In response to an NRC request (at the Associate Office Director

level or above) to resolve an identified safety, safeguards, or

environmental issue, or to assist NRC in developing a rule, regulatory

guide, policy statement, generic letter, or bulletin; or

(c) As a means of exchanging information between industry organizations

and the NRC for the purpose of supporting generic regulatory

improvements or efforts.

[[Page 29213]]

PART 171--ANNUAL FEES FOR REACTOR OPERATING LICENSES AND FUEL CYCLE

LICENSES AND MATERIALS LICENSES, INCLUDING HOLDERS OF CERTIFICATES

OF COMPLIANCE, REGISTRATIONS, AND QUALITY ASSURANCE PROGRAM

APPROVALS AND GOVERNMENT AGENCIES LICENSED BY THE NRC

6. The authority citation for part 171 continues to read as

follows:

Authority: Sec. 7601, Pub. L. 99-272, 100 Stat. 146, as amended

by sec. 5601, Pub. L. 100-203, 101 Stat. 1330, as amended by Sec.

3201, Pub. L. 101-239, 103 Stat. 2106 as amended by sec. 6101, Pub.

L. 101-508, 104 Stat. 1388, (42 U.S.C. 2213); sec. 301, Pub. L. 92-

314, 86 Stat. 222 (42 U.S.C. 2201(w)); sec. 201, 88 Stat. 1242, as

amended (42 U.S.C. 5841); sec. 2903, Pub. L. 102-486, 106 Stat.

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

7. Section 171.13 is revised to read as follows.

Sec. 171.13 Notice.

The annual fees applicable to an operating reactor and to a

materials licensee, including a Government agency licensed by the NRC,

subject to this part and calculated in accordance with Secs. 171.15 and

171.16, will be published as a notice in the Federal Register as soon

as is practicable but no later than the third quarter of FY 1997 and

1998. The annual fees will become due and payable to the NRC in

accordance with Sec. 171.19 except as provided in Sec. 171.17.

Quarterly payments of the annual fees of $100,000 or more will continue

during the fiscal year and be based on the applicable annual fees as

shown in Secs. 171.15 and 171.16 of the regulations until a notice

concerning the revised amount of the fees for the fiscal year is

published by the NRC. If the NRC is unable to publish a final fee rule

that becomes effective during the current fiscal year, then fees will

be assessed based on the rates in effect for the previous fiscal year.

8. In Sec. 171.15, paragraphs (a), (b), (c) introductory text,

(c)(1), (c)(2), (e), and (f) are revised to read as follows:

Sec. 171.15 Annual Fees: Reactor operating licenses.

(a) Each person licensed to operate a power, test, or research

reactor shall pay the annual fee for each unit for which the person

holds an operating license at any time during the Federal FY in which

the fee is due, except for those test and research reactors exempted in

Sec. 171.11 (a)(1) and (a)(2).

(b) The FY 1997 uniform annual fee for each operating power reactor

which must be collected by September 30, 1997, is $2,978,000. This fee

has been determined by adjusting the FY 1996 annual fee upward by 8.4

percent. In the FY 1995 final rule, the NRC stated it would stabilize

annual fees by adjusting the annual fees only by the percentage change

(plus or minus) in NRC's total budget authority and adjustments based

on changes in 10 CFR part 170 fees as well as on the number of

licensees paying the fees. The first adjustment to the annual fees

using this method occurred in FY 1996 when all annual fees were

decreased 6.5 percent below the FY 1995 annual fees. The FY 1995 annual

fee was comprised of a base annual fee and an additional charge

(surcharge). The activities comprising the base FY 1995 annual fee are

as follows:

(1) Power reactor safety and safeguards regulation except licensing

and inspection activities recovered under 10 CFR part 170 of this

chapter.

(2) Research activities directly related to the regulation of power

reactors.

(3) Generic activities required largely for NRC to regulate power

reactors, e.g., updating part 50 of this chapter, or operating the

Incident Response Center.

(c) The activities comprising the FY 1995 surcharge are as follows:

(1) Activities not attributable to an existing NRC licensee or

class of licensees; e.g., reviews submitted by other government

agencies (e.g., DOE) that do not result in a license or are not

associated with a license; international cooperative safety program and

international safeguards activities; low-level waste disposal generic

activities; uranium enrichment generic activities; and

(2) Activities not currently assessed under 10 CFR part 170

licensing and inspection fees based on existing Commission policy,

e.g., reviews and inspections conducted of nonprofit educational

institutions, and costs that would not be collected from small entities

based on Commission policy in accordance with the Regulatory

Flexibility Act.

* * * * *

(e) The FY 1997 annual fees for licensees authorized to operate a

nonpower (test and research) reactor licensed under Part 50 of this

chapter, except for those reactors exempted from fees under

Sec. 171.11(a), are as follows:

Research reactor.............................................. $57,300

Test reactor.................................................. $57,300

(f) For FY 1997 and FY 1998, annual fees for operating reactors

will be calculated and assessed in accordance with Sec. 171.13.

9. In Sec. 171.16, the introductory text of paragraph (c) and

paragraphs (c)(1), (c)(4), (d), and (e) are revised to read as follows:

Sec. 171.16 Annual Fees: Materials Licensees, Holders of Certificates

of Compliance, Holders of Sealed Source and Device Registrations,

Holders of Quality Assurance Program Approvals and Government Agencies

Licensed by the NRC.

* * * * *

(c) A licensee who is required to pay an annual fee under this

section may qualify as a small entity. If a licensee qualifies as a

small entity and provides the Commission with the proper certification,

the licensee may pay reduced annual fees for FY 1997 as follows:

------------------------------------------------------------------------

Maximum

annual fee

per

licensed

category

------------------------------------------------------------------------

Small businesses not engaged in manufacturing and small not-

for-profit organizations (gross annual receipts):

$350,000 to $5 million.................................. $1,800

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

Manufacturing entities that have an average of 500 employees

or less:

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

Less than 35 employees.................................. 400

Small governmental jurisdictions (including publicly

supported educational institutions) (population):

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

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

Educational institutions that are not State or publicly

supported, and have 500 employees or less:

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

Less than 35 employees.................................. 400

------------------------------------------------------------------------

(1) A licensee qualifies as a small entity if it meets the size

standards established by the NRC (See 10 CFR 2.810).

* * * * *

(4) For FY 1997, the maximum annual fee a small entity is required

to pay is $1,800 for each category applicable to the license(s).

(d) The FY 1997 annual fees for materials licensees and holders of

certificates, registrations or approvals subject to fees under this

section are shown below. The FY 1997 annual fees, which must be

collected by September 30, 1997, have been determined by adjusting

upward the FY 1996 annual fees by 8.4 percent. In the FY 1995 final

rule, the NRC stated it would stabilize annual fees by adjusting the

annual fees only by the percentage change (plus or minus) in NRC's

total budget authority and adjustments based on changes in 10 CFR part

170 fees as well as on the number of licensees paying the fees. The

[[Page 29214]]

first adjustment to the annual fees using this method occurred in FY

1996 when all annual fees were decreased 6.5 percent below the FY 1995

annual fees. The FY 1995 annual fee was comprised of a base annual fee

and an additional charge (surcharge). The activities comprising the FY

1995 surcharge are shown for convenience in paragraph (e) of this

section.

Schedule of Materials Annual Fees and Fees for Government Agencies

Licensed by NRC

[See footnotes at end of table]

------------------------------------------------------------------------

Annual fees

Category of materials licenses \1\ \2\ \3\

------------------------------------------------------------------------

1. Special nuclear material:

A. (1) Licenses for possession and use of U-235 or

plutonium for fuel fabrication activities:

(a) Strategic Special Nuclear Material:

Babcock & Wilcox SNM-42..................... $2,606,000

Nuclear Fuel Services SNM-124............... 2,606,000

(b) Low Enriched Uranium in Dispersible Form

Used for Fabrication of Power Reactor Fuel:

Combustion Engineering (Hematite) SNM-33.... 1,279,000

General Electric Company SNM-1097........... 1,279,000

Siemens Nuclear Power SNM-1227.............. 1,279,000

Westinghouse Electric Company SNM-1107...... 1,279,000

(2) All other special nuclear materials licenses not

included in Category 1.A.(1) which are licensed for

fuel cycle activities:

(a) Facilities with limited operations: B&W Fuel

Company SNM-1168............................... 509,000

(b) All Others: General Electric SNM-960........ 346,000

B. Licenses for receipt and storage of spent fuel at

an independent spent fuel storage installation

(ISFSI)............................................ 283,000

C. Licenses for possession and use of special

nuclear material in sealed sources contained in

devices used in industrial measuring systems,

including x-ray fluorescence analyzers............. 1,300

D. All other special nuclear material licenses,

except licenses authorizing special nuclear

material in unsealed form in combination that would

constitute a critical quantity, as defined in Sec.

150.11 of this chapter, for which the licensee

shall pay the same fees as those for Category

1.A.(2)............................................ 3,100

E. Licenses or certificates for the operation of a

uranium enrichment facility........................ 2,606,000

2. Source material:

A.(1) Licenses for possession and use of source

material for refining uranium mill concentrates to

uranium hexafluoride............................... 648,000

(2) Licenses for possession and use of source

material in recovery operations such as milling, in-

situ leaching, heap-leaching, ore buying stations,

ion exchange facilities and in processing of ores

containing source material for extraction of metals

other than uranium or thorium, including licenses

authorizing the possession of byproduct waste

material (tailings) from source material recovery

operations, as well as licenses authorizing the

possession and maintenance of a facility in a

standby mode:

Class I facilities \4\.......................... 61,800

Class II facilities \4\......................... 34,900

Other facilities \4\............................ 22,300

(3) Licenses that authorize the receipt of byproduct

material, as defined in Section 11e.(2) of the

Atomic Energy Act, from other persons for

possession and disposal, except those licenses

subject to the fees in Category 2.A.(2) or Category

2.A.(4)............................................ 45,300

(4) Licenses that authorize the receipt of byproduct

material, as defined in Section 11e.(2) of the

Atomic Energy Act, from other persons for

possession and disposal incidental to the disposal

of the uranium waste tailings generated by the

licensee's milling operations, except those

licenses subject to the fees in Category 2.A.(2)... 8,000

B. Licenses which authorize only the possession, use

and/or installation of source material for

shielding.......................................... 490

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

3. Byproduct material:

A. Licenses of broad scope for possession and use of

byproduct material issued pursuant to Parts 30 and

33 of this chapter for processing or manufacturing

of items containing byproduct material for

commercial distribution............................ 16,600

B. Other licenses for possession and use of

byproduct material issued pursuant to Part 30 of

this chapter for processing or manufacturing of

items containing byproduct material for commercial

distribution....................................... 5,600

C. Licenses issued pursuant to Secs. 32.72, 32.73,

and/or 32.74 of this chapter authorizing the

processing or manufacturing and distribution or

redistribution of radiopharmaceuticals, generators,

reagent kits and/or sources and devices containing

byproduct material. This category also includes the

possession and use of source material for shielding

authorized pursuant to Part 40 of this chapter when

included on the same license. This category does

not apply to licenses issued to nonprofit

educational institutions whose processing or

manufacturing is exempt under 10 CFR 171.11(a)(1).

These licenses are covered by fee Category 3D...... 11,200

D. Licenses and approvals issued pursuant to Secs.

32.72, 32.73, and/or 32.74 of this chapter

authorizing distribution or redistribution of

radiopharmaceuticals, generators, reagent kits and/

or sources or devices not involving processing of

byproduct material. This category includes licenses

issued pursuant to Secs. 32.72, 32.73 and 32.74 to

nonprofit educational institutions whose processing

or manufacturing is exempt under 10 CFR

171.11(a)(1). This category also includes the

possession and use of source material for shielding

authorized pursuant to Part 40 of this chapter when

included on the same license....................... 4,400

E. Licenses for possession and use of byproduct

material in sealed sources for irradiation of

materials in which the source is not removed from

its shield (self-shielded units)................... 3,200

F. Licenses for possession and use of less than

10,000 curies of byproduct material in sealed

sources for irradiation of materials in which the

source is exposed for irradiation purposes. This

category also includes underwater irradiators for

irradiation of materials in which the source is not

exposed for irradiation purposes................... 3,800

G. Licenses for possession and use of 10,000 curies

or more of byproduct material in sealed sources for

irradiation of materials in which the source is

exposed for irradiation purposes. This category

also includes underwater irradiators for

irradiation of materials in which the source is not

exposed for irradiation purposes................... 19,700

[[Page 29215]]

H. Licenses issued pursuant to Subpart A of Part 32

of this chapter to distribute items containing

byproduct material that require device review to

persons exempt from the licensing requirements of

Part 30 of this chapter, except specific licenses

authorizing redistribution of items that have been

authorized for distribution to persons exempt from

the licensing requirements of Part 30 of this

chapter............................................ 5,000

I. Licenses issued pursuant to Subpart A of Part 32

of this chapter to distribute items containing

byproduct material or quantities of byproduct

material that do not require device evaluation to

persons exempt from the licensing requirements of

Part 30 of this chapter, except for specific

licenses authorizing redistribution of items that

have been authorized for distribution to persons

exempt from the licensing requirements of Part 30

of this chapter.................................... 8,900

J. Licenses issued pursuant to Subpart B of Part 32

of this chapter to distribute items containing

byproduct material that require sealed source and/

or device review to persons generally licensed

under Part 31 of this chapter, except specific

licenses authorizing redistribution of items that

have been authorized for distribution to persons

generally licensed under Part 31 of this chapter... 3,800

K. Licenses issued pursuant to Subpart B of Part 31

of this chapter to distribute items containing

byproduct material or quantities of byproduct

material that do not require sealed source and/or

device review to persons generally licensed under

Part 31 of this chapter, except specific licenses

authorizing redistribution of items that have been

authorized for distribution to persons generally

licensed under Part 31 of this chapter............. 3,300

L. Licenses of broad scope for possession and use of

byproduct material issued pursuant to Parts 30 and

33 of this chapter for research and development

that do not authorize commercial distribution...... 12,300

M. Other licenses for possession and use of

byproduct material issued pursuant to Part 30 of

this chapter for research and development that do

not authorize commercial distribution.............. 5,500

N. Licenses that authorize services for other

licensees, except: (1) Licenses that authorize only

calibration and/or leak testing services are

subject to the fees specified in fee Category 3P;

and (2) Licenses that authorize waste disposal

services are subject to the fees specified in fee

Categories 4A, 4B, and 4C.......................... 6,100

O. Licenses for possession and use of byproduct

material issued pursuant to Part 34 of this chapter

for industrial radiography operations. This

category also includes the possession and use of

source material for shielding authorized pursuant

to Part 40 of this chapter when authorized on the

same license....................................... 14,100

P. All other specific byproduct material licenses,

except those in Categories 4A through 9D........... 1,700

4. Waste disposal and processing:

A. Licenses specifically authorizing the receipt of

waste byproduct material, source material, or

special nuclear material from other persons for the

purpose of contingency storage or commercial land

disposal by the licensee; or licenses authorizing

contingency storage of low-level radioactive waste

at the site of nuclear power reactors; or licenses

for receipt of waste from other persons for

incineration or other treatment, packaging of

resulting waste and residues, and transfer of

packages to another person authorized to receive or

dispose of waste material.......................... \5\ 102,000

B. Licenses specifically authorizing the receipt of

waste byproduct material, source material, or

special nuclear material from other persons for the

purpose of packaging or repackaging the material.

The licensee will dispose of the material by

transfer to another person authorized to receive or

dispose of the material............................ 14,500

C. Licenses specifically authorizing the receipt of

prepackaged waste byproduct material, source

material, or special nuclear material from other

persons. The licensee will dispose of the material

by transfer to another person authorized to receive

or dispose of the material......................... 7,700

5. Well logging:

A. Licenses for possession and use of byproduct

material, source material, and/or special nuclear

material for well logging, well surveys, and tracer

studies other than field flooding tracer studies... 8,200

B. Licenses for possession and use of byproduct

material for field flooding tracer studies......... 13,200

6. Nuclear laundries:

A. Licenses for commercial collection and laundry of

items contaminated with byproduct material, source

material, or special nuclear material.............. 14,700

7. Medical licenses:

A. Licenses issued pursuant to Parts 30, 35, 40, and

70 of this chapter for human use of byproduct

material, source material, or special nuclear

material in sealed sources contained in teletherapy

devices. This category also includes the possession

and use of source material for shielding when

authorized on the same license..................... 10,300

B. Licenses of broad scope issued to medical

institutions or two or more physicians pursuant to

Parts 30, 33, 35, 40, and 70 of this chapter

authorizing research and development, including

human use of byproduct material except licenses for

byproduct material, source material, or special

nuclear material in sealed sources contained in

teletherapy devices. This category also includes

the possession and use of source material for

shielding when authorized on the same license \9\.. 23,500

C. Other licenses issued pursuant to Parts 30, 35,

40, and 70 of this chapter for human use of

byproduct material, source material, and/or special

nuclear material except licenses for byproduct

material, source material, or special nuclear

material in sealed sources contained in teletherapy

devices. This category also includes the possession

and use of source material for shielding when

authorized on the same license \9\................. 4,700

8. Civil defense:

A. Licenses for possession and use of byproduct

material, source material, or special nuclear

material for civil defense activities.............. 1,800

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

A. Registrations issued for the safety evaluation of

devices or products containing byproduct material,

source material, or special nuclear material,

except reactor fuel devices, for commercial

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

B. Registrations issued for the safety evaluation of

devices or products containing byproduct material,

source material, or special nuclear material

manufactured in accordance with the unique

specifications of, and for use by, a single

applicant, except reactor fuel devices............. 3,700

C. Registrations issued for the safety evaluation of

sealed sources containing byproduct material,

source material, or special nuclear material,

except reactor fuel, for commercial distribution... 1,600

[[Page 29216]]

D. Registrations issued for the safety evaluation of

sealed sources containing byproduct material,

source material, or special nuclear material,

manufactured in accordance with the unique

specifications of, and for use by, a single

applicant, except reactor fuel..................... 780

10. Transportation of radioactive material:

A. Certificates of Compliance or other package

approvals issued for design of casks, packages, and

shipping containers.

Spent Fuel, High-Level Waste, and plutonium air

packages....................................... \6\ N/A

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

B. Approvals issued of 10 CFR Part 71 quality

assurance programs.

Users and Fabricators........................... 78,900

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

11. Standardized spent fuel facilities.................. \6\ N/A

12. Special Projects.................................... \6\ N/A

13. A. Spent fuel storage cask Certificate of Compliance \6\ N/A

B. General licenses for storage of spent fuel under

10 CFR 72.210...................................... \6\ 283,000

14. Byproduct, source, or special nuclear material

licenses and other approvals authorizing

decommissioning, decontamination, reclamation, or site

restoration activities pursuant to 10 CFR Parts 30, 40,

70, and 72............................................. \7\ N/A

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

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

17. Master materials licenses of broad scope issued to

Government agencies 421,000

18. Department of Energy:

A. Certificates of Compliance....................... \10\ 1,168,000

B. Uranium Mill Tailing Radiation Control Act

(UMTRCA) activities................................ 1,965,000

------------------------------------------------------------------------

\1\ Annual fees will be assessed based on whether a licensee held a

valid license with the NRC authorizing possession and use of

radioactive material during the fiscal year. However, the annual fee

is waived for those materials licenses and holders of certificates,

registrations, and approvals who either filed for termination of their

licenses or approvals or filed for possession only/storage licenses

prior to October 1, 1996, and permanently ceased licensed activities

entirely by September 30, 1996. Annual fees for licensees who filed

for termination of a license, downgrade of a license, or for a POL

during the fiscal year and for new licenses issued during the fiscal

year will be prorated in accordance with the provisions of Sec.

171.17. If a person holds more than one license, certificate,

registration, or approval, the annual fee(s) will be assessed for each

license, certificate, registration, or approval held by that person.

For licenses that authorize more than one activity on a single license

(e.g., human use and irradiator activities), annual fees will be

assessed for each category applicable to the license. Licensees paying

annual fees under Category 1.A.(1). are not subject to the annual fees

of Category 1.C and 1.D for sealed

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