Revision of Fee Schedules; Fee Recovery for FY 2008

NUCLEAR REGULATORY COMMISSION

10 CFR Parts 170 and 171

RIN: 3150-AI28

[NRC-2008-0080]

Revision of Fee Schedules; Fee Recovery for FY 2008

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The Nuclear Regulatory Commission (NRC) is amending the licensing, inspection, and annual fees charged to its applicants and licensees.

The amendments are necessary to implement the Omnibus Budget Reconciliation Act of 1990 (OBRA-90), as amended, which requires that the NRC recover approximately 90 percent of its budget authority in fiscal year (FY) 2008, less the amounts appropriated from the Nuclear Waste Fund (NWF), amounts appropriated for Waste Incidental to Reprocessing (WIR) activities, and amounts appropriated for generic homeland security activities. The required fee recovery amount for the FY 2008 budget is approximately $779.1 million. After accounting for carryover and billing adjustments, the total amount to be billed as fees is approximately $760.7 million.

DATES:

Effective Date:

August 5, 2008.

ADDRESSES:

The comments received on the proposed rule and the NRC's work papers that support these final changes to 10 CFR parts 170 and 171 are available from the following locations:

Federal e-Rulemaking Portal:

Go to

http://www.regulations.gov

and search for documents filed under Docket ID [NRC-2008-0080]. For further information about this site, contact Ms. Carol Gallagher, 301-415-5905; e-mail

Carol.Gallagher@nrc.gov

.

NRC's Public Document Room (PDR):

The public may examine and have copied for a fee publicly available documents at the NRC's PDR, Public File Area O-1 F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland.

NRC's Agency Wide Document Access and Management System (ADAMS):

Publicly available documents created or received at the NRC after November 1, 1998, are available electronically at the NRC's electronic Reading Room at

http://www.nrc.gov/reading-rm/adams.html

. From this page, the public can gain entry into ADAMS, which provides text and image files of NRC's public documents. If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC PDR reference staff at 1-899-397-4209, or 301-415-4737, or by e-mail to

pdr.resource@nrc.gov

.

FOR FURTHER INFORMATION CONTACT:

Renu Suri, telephone 301-415-0161; Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

SUPPLEMENTARY INFORMATION:

I. Background

II. Response to Comments

III. Final Action

IV. Voluntary Consensus Standards

V. Environmental Impact: Categorical Exclusion

VI. Paperwork Reduction Act Statement

VII. Regulatory Analysis

VIII. Regulatory Flexibility Analysis

IX. Backfit Analysis

X. Congressional Review Act

I. Background

The NRC is required each year, under OBRA-90, as amended, (42 U.S.C. 2214) to recover approximately 90 percent of its budget authority, less the amounts appropriated from the NWF, amounts appropriated for WIR, and amounts appropriated for generic homeland security activities (“non-fee items”), through fees to NRC licensees and applicants. The 10 percent exclusion from fee recovery in NRC's annual appropriation is to pay for the costs of agency activities that do not provide a direct benefit to NRC licensees, such as international assistance and Agreement State activities under section 274 of the Atomic Energy Act of 1954, as amended. The NRC's required fee recovery amount for the FY 2008 budget is approximately $779.1 million, which is decreased by approximately $18.4 million to account for billing adjustments (i.e., carryover from prior year, expected unpaid invoices, payments for prior year invoices), resulting in a total of approximately $760.7 million to be billed as fees in FY 2008.

The NRC assesses two types of fees to meet the requirements of OBRA-90, as amended. First, license and inspection fees, established in 10 CFR part 170 under the authority of the Independent Offices Appropriation Act of 1952 (IOAA), 31 U.S.C. 9701, recover the NRC's costs of providing special benefits to identifiable applicants and licensees. Examples of the services provided by the NRC for which these fees are assessed are the review of applications for new licenses and the review of renewal applications, the review of amendment requests, and inspections. Second, annual fees established in 10 CFR part 171 under the authority of OBRA-90, as amended, recover generic and other regulatory costs not otherwise recovered through 10 CFR part 170 fees.

In accordance with OBRA-90, as amended, $29.4 million of the budgeted resources associated with generic homeland security activities are excluded from the NRC's fee base in FY 2008. This legislative provision was discussed in the NRC's FY 2006 proposed and final fee rules (71 FR 7349, February 10, 2006; 71 FR 30721, May 30, 2006). These funds cover generic activities that support an entire license fee class or classes of licensees such as rulemakings and guidance development. Under the authority of the IOAA, the NRC will continue to bill under part 170 for all licensee-specific homeland security-related services provided, including security inspections and security plan reviews.

The amount of the NRC's required fee collections is set by law, and is therefore outside the scope of this rulemaking. In FY 2008, the NRC's total fee recovery amount increased by $109.8 million from FY 2007, mostly in response to increased workload for new reactor licensing activities. The FY 2008 budget was allocated to the fee classes that the budgeted activities support. As such, the annual fees for reactor licensees increased. The annual fees for most other licensees decreased due to reductions in budgeted resources allocated to the fee classes. Another factor affecting the amount of annual fees for each fee class is the estimated collection under part 170. The annual fee amounts in the FY 2008 final fee rule are lower than those in the proposed rule primarily due to the increase in part 170 revenue estimates for all fee classes.

II. Response to Comments

The NRC published the FY 2008 proposed fee rule on February 13, 2008 (73 FR 8507) to solicit public comment on its proposed revisions to 10 CFR parts 170 and 171. The NRC received seven comments by the close of the comment period (March 14, 2008). The comments have been grouped by issue and are addressed in a collective response.

A. Specific Part 170 Issue

1. Direct Hours Per FTE

Comment

. Some commenters requested a better explanation for the decrease in efficiency for the time, FY 2005 to FY 2008. NRC used 1,371 direct hours per FTE for calculation of hourly rates in FY 2008 compared with 1,446 direct hours per FTE in FY 2005.

Response

. The purpose of the FY 2008 fee rulemaking, as with prior year fee rulemakings, is to establish fees in a fair and transparent manner to recover the required portion of the NRC's budget. The estimate of the direct staff hours per FTE used for the calculation of the hourly rate was revised based on data retrieved from NRC's time and labor system data. This revised estimate reflects changes that are taking place with the NRC's workforce.

In response to the comment on the lower estimated direct staff hours per FTE in FY 2008 as compared with FY 2005, the estimate is a reflection of the increase in retirements of more experienced NRC staff and the increase in hiring of new staff to fill these vacancies. In addition, the NRC is also recruiting new staff due to the projected increase in its workload, particularly as it relates to new reactors. In the near term, as new, less experienced staff continue to come on board, more hours are required for training and less staff are available for direct work. For the FY 2008 fee rule, NRC reviewed this estimate and updated it to 1,371 hours as compared with the lower 1,287 direct hours per FTE used for the FY 2007 hourly rate calculation. NRC plans to continue to review this estimate in future years and to update it as appropriate.

B. Specific Part 171 Issues

1. Annual Fee Changes

Comment

. Two commenters supported the reduction in annual fees for uranium recovery licensees. One commenter suggested assessing higher fees to the uranium recovery licensees as a deterrent to increased uranium mining. One commenter noted that the annual fee for the registration of devices generally licensed is too high.

Response

. In response to comments on the changes in annual fee amounts, NRC is rebaselining its fees in FY 2008, as noted in the proposed fee rule. Under this method, the annual fee amounts are calculated based on budgeted resources allocated to the fee class and may fluctuate from one year to the next. Changes in fee amounts in a fee class reflect the allocation of resources for regulatory activities to the fee class. As appropriate, the NRC will continue to recover its cost of application and amendment reviews by billing the identifiable applicants using the hourly rate.

The NRC fees are set after careful evaluation and allocation of the costs of its budgeted activities. Policy issues related to discouraging uranium mining are not within the scope of this rulemaking.

2. Agreement State Activities

Comment

. Some commenters requested more discussion of the fee impact to NRC licensees once additional states beyond the Commonwealth of Pennsylvania become Agreement States.

Response

. In response to concerns regarding decreasing numbers of NRC licensees in light of more states becoming Agreement States, the NRC notes that the fee calculation methodology considers the percentage of licensees in Agreement States in establishing fees for the materials users fee class. As explained in the proposed fee rule, the budgeted resources providing support to Agreement States or their licensees are included in total surcharge costs, which are offset by non-fee recovery funding provided by Congress. For example, if the NRC develops a rule, guidance document, or database or other tracking system, that is associated with or otherwise benefits Agreement State licensees, the costs of these activities are prorated to the surcharge according to the percentage of licensees in that fee class in Agreement States (e.g., if 82 percent of materials users licensees are in Agreement States, 82 percent of these regulatory infrastructure costs are included in the surcharge). To address fairness and equity concerns associated with licensees paying for the cost of activities that do not directly benefit them, as noted previously, the FY 2001 Energy and Water Development Appropriations Act amended OBRA-90 to decrease the NRC's fee recovery amount to 90 percent beginning in FY 2005. To the extent that the 10 percent of the budget authority which is not fee recoverable is insufficient to cover all surcharge costs, these remaining surcharge costs are spread to all licensees based on their percentage of the budget. In FY 2008, the NRC's fee relief exceeds the total surcharge cost. This excess fee relief is used to reduce all licensees' annual fees, based on their percentage of the fee recoverable budget authority.

C. Other Issues

1. Information Provided by NRC in Support of Proposed Rule

Comment

. Some commenters requested more explanation for the operating reactors fee increases. The details requested include an explanation of increases in the budget for the new reactor work. The commenters also wanted more explanation for the reduction in non-fee items.

Response

. In response to the comments on the explanation of increases in the budget for the new reactor work from FY 2007 to FY 2008 and decreases in non-fee items, the NRC reiterates that the purpose of this rulemaking is to establish fees to recover most of the NRC's budget, as required by OBRA-90, as amended. The NRC's budget and the manner in which the NRC carries out its activities are not within the scope of this rulemaking. The NRC's budget is submitted to the Office of Management and Budget (OMB) and Congress for review and approval. The Congressionally approved budget resulting from this process contains the NRC resources that must be allocated and then recovered through assessment of fees.

The purpose of the FY 2008 fee rulemaking, as with prior year fee rulemakings, is to establish fees in a fair and transparent manner to recover the required portion of the NRC's budget. As such, the purpose of this rulemaking is to describe and then solicit and evaluate comments on the allocation of these resources for fee calculation purposes. The rule and supporting work papers are not intended to justify why the budgeted resources for a given planned activity increased by a particular percentage. Each fiscal year, the NRC's Performance Budget submitted to the Congress for review provides the objectives of the budget and how it supports the agency's Strategic Plan goals and strategies. To assist commenters provide meaningful comments, the NRC made available NUREG-1100, Volume 23, “Performance Budget: Fiscal Year 2008” (February 2007), which discusses the NRC's budget for FY 2008, including the activities to be performed in each program. This document is available on the NRC public Web site at

http://www.nrc.gov/reading-rm.html

.

The fee rule and work papers show the value of the approved budgeted resources, and most importantly for fee calculation purposes, the fee classes and surcharge categories to which these resources are allocated. The proposed fee rule work papers included a separate document for each fee class and surcharge category to show the budget allocations for FY 2008 and FY 2007 at the planned activity level, thereby making it easier to see the reasons for any fee changes between FY 2008 and FY 2007. For example, the proposed fee rule stated that the power reactor annual fee increased due to an increase in budgeted resources for new reactor licensing activities. The work papers which listed the total budgeted FTE and contract resources at the planned

activity level showed that the budgeted resources for one of the new reactor licensing activities, Combined Licenses, increased by approximately 133 FTE and $36 million in FY 2008, as compared with FY 2007.

The information available in the rule, work papers, and the Performance Budget provided the public extensive information on the calculation of the proposed fees. Additionally, the contact listed in the proposed fee rule was available during the public comment period to answer any questions that commenters had on the development of the proposed fees. Therefore, the NRC believes that ample information was available on which to base constructive comments on the proposed revisions to parts 170 and 171.

2. Changing NRC's Small Entity Size Standards

Comment

. One commenter requested that NRC consider revising fees for small businesses not engaged in manufacturing. The commenter suggested raising the lower gross receipts amount for the lower tier of the small entity fee or develop a sliding scale of the small entity fees.

Response

. To alleviate the significant impact of the annual fees on a substantial number of small entities, NRC established the maximum small entity fee in FY 1991. In FY 1992, the NRC introduced a second, lower tier to the small entity fee. The NRC re-examined its small entity fees for the FY 2007 fee rulemaking, and did not believe that a change to the small entity fees was warranted. The NRC plans to re-examine the small entity fees again in FY 2009.

3. Need for Timely Budget Estimate

Comment

. Several commenters raised concerns about the timing of the issuance of the fee rule. To address this issue, these commenters suggested that the NRC publish an estimate of fees for the following year, coincident with issuance of the proposed fee rule each year.

Response

. The NRC acknowledges the concerns raised by these commenters, and has addressed similar comments in previous fee rulemakings. The timing of the fee rule each year is contingent upon when the NRC receives its Congressionally approved budget. The Commission makes every effort to issue the proposed fee rule as soon as possible after receiving its appropriation. Because the NRC can not estimate in advance what its future Congressionally approved budgets will be (i.e., proposed budgets must be submitted to the OMB for review before the President submits the budget to Congress for enactment), the NRC believes it is not practicable to project fees based on future estimated budgets. For example, at the time the FY 2007 proposed fee rule was published last year, the NRC was operating under a continuing resolution that limited the FY 2007 funds to the NRC's FY 2006 funding level which was approximately $83 million lower than what the President eventually signed into law on February 15, 2007. Had the NRC proposed or established preliminary fees based on the NRC funding in FY 2006, the FY 2007 estimated fees would have been quite different from the fees ultimately assessed to licensees.

Even if the NRC were able to estimate a future year budget, the annual fee amounts are highly sensitive to other factors, including the allocation of these budgeted resources to license fee classes, the numbers of licensees in a fee class, and the proportion of total class costs recovered from part 170. The part 170 revenue from a fee class is particularly difficult to predict in advance, and more so for fee classes with small numbers of licensees, whose annual fees are even more sensitive to part 170 revenue estimates. Estimating these factors in advance would likely lead to inaccurate future fee projections, which would be misleading to applicants and licensees.

The NRC staff is available to meet with interested licensees to explain the process of the fee rulemaking and the fee computations. To arrange a meeting, please contact Renu Suri, telephone 301-415-0161; e-mail

Renu.Suri@nrc.gov

; Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

4. Increase in the Fund Balance With Treasury

Comment

. Some commenters requested an explanation for the increase in the NRC's fund balance with the Treasury account in FY 2007 as compared with FY 2006.

Response

. The fund balance with the Treasury represents appropriated funds in a U.S. Treasury account that are available to pay NRC's current liabilities and to finance the agency's authorized purchase commitments. Note #2 to the annual financial statements, Fund Balance with Treasury, in the Performance and Accountability Report, FY 2007, NUREG-1542, Volume 13, describes the components of this NRC asset. The amount of the fund balance with the Treasury has no impact on the calculation of the fee amounts. The OBRA-90, as amended, requires the NRC to recover 90 percent of its budget authority for the fiscal year through fees. Therefore, an explanation for the increase in the NRC's fund balance with the Treasury for a prior year is outside the scope of this rulemaking. The NUREG-1542, Volume 13, which has more details on this fund balance is available on the NRC public Web site at

http://www.nrc.gov/reading-rm.html

.

III. Final Action

The NRC is amending its licensing, inspection, and annual fees to recover approximately 90 percent of its FY 2008 budget authority less the appropriations for non-fee items. The NRC's total budget authority for FY 2008 is $926.1 million. The non-fee items include approximately $29 million appropriated from the NWF, $2 million for WIR activities, and $29.4 million for generic homeland security activities. Based on the 90 percent fee-recovery requirement, the NRC must recover approximately $779.1 million in FY 2008 through part 170 licensing and inspection fees and part 171 annual fees. The amount required by law to be recovered through fees for FY 2008 is $109.8 million more than the amount estimated for recovery in FY 2007, an increase of approximately 16.4 percent.

The FY 2008 fee recovery amount of $779.1 million is further reduced for billing adjustments and carryover from the prior year. The FY 2008 billing adjustments of $5 million are primarily for FY 2008 invoices that the NRC estimates will not be paid during the fiscal year, less payments received in FY 2008 for FY 2007 invoices. In FY 2008, the carryover amount is approximately $13.3 million which includes additional collections in FY 2007 that were unanticipated when the final FY 2007 fee rule was published. This leaves approximately $760.7 million to be billed as fees in FY 2008 through part 170 licensing and inspection fees and part 171 annual fees.

Table 1 summarizes the budget and fee recovery amounts for FY 2008. (Individual values may not sum to totals due to rounding.)

Table 1.—Budget and Fee Recovery Amounts for FY 2008

[Dollars in millions]

Total Budget Authority

$926.1

Less non-fee items

−60.4

Balance

$865.7

Fee Recovery Rate for FY 2008

× 90.0%

Total Amount to be Recovered for FY 2008

$779.1

Less Carryover from FY 2007

−13.3

Less Part 171 Billing Adjustments

Unpaid FY 2008 Invoices (estimated)

2.7

Less Payments Received in FY 2008 for Prior Year Invoices (estimated)

−7.8

Subtotal

−18.4

Amount to be Recovered Through Parts 170 and 171 Fees

$760.7

Less Estimated Part 170 Fees

−291.8

Part 171 Fee Collections Required

$468.9

Approximately 76 percent of the $13.3 million carryover amount was for unpredicted FY 2007 part 170 revenues for licensing and inspection services. At the time the FY 2007 final fee rule was published, NRC estimated the part 170 revenues based on billings for the prior four quarters. The rate of actual billings and revenues for the remainder of FY 2007 was higher than expected. Some of the factors contributing to the greater than estimated part 170 revenue collections were higher billings for review of design certifications and pre-application interactions related to new reactors, and materials licensing reviews billed to government agencies for the first time. In August 2007, NRC began billing government agencies in accordance with the Energy Policy Act of 2005 (see the discussion in the NRC's final fee rule for FY 2006, 71 FR 30731; May 30, 2006). The remainder of the $13.3 million carryover amount resulted from higher annual fees collected in FY 2007. Some of the factors for the higher collections were timing of the effective date of the FY 2007 fee rule, and collections for prior years. The FY 2007 fee rule went into effect August 6, 2007 with reduced fee amounts for most of the materials licensees. A majority of these licensees paid their fees on their anniversary month during FY 2007, based on the FY 2006 fee schedule (which had higher fees). This resulted in higher fee collections in FY 2007. NRC also collected greater than expected annual fees due to billings for prior years which were identified in FY 2007.

For FY 2008, the $13.3 million carryover amount will offset the fees statutorily required to be collected and results in a reduction in the annual fee for all fee classes. In addition, part 170 revenue estimates have been adjusted to reflect the current rate of billings to licensees. The NRC has updated the part 170 estimates for this final rule based on the latest invoice data available. In total, the part 170 estimates increased by approximately $8 million from the FY 2008 proposed fee rule; approximately $5 million of this increase is for the power reactor fee class.

The NRC estimates that in FY 2008 approximately $291.8 million will be recovered from part 170 fees. This represents an increase of approximately 37 percent as compared to the actual part 170 collections of $213.7 million for FY 2007. The NRC derived the FY 2008 estimate of part 170 fee collections based on the previous four quarters of billing data for each license fee class, with adjustments to account for changes in the NRC's FY 2008 budget, as appropriate. The remaining $468.9 million will be recovered through the part 171 annual fees in FY 2008, compared to $465.3 million for FY 2007, an increase of less than 1 percent. Annual fees for most licensees decreased between the FY 2008 proposed and final fee rules primarily due to higher part 170 fee collections.

The FY 2008 final fee rule is a “major rule” as defined by the Congressional Review Act of 1996, 5 U.S.C 801-808. Therefore, the NRC's fee schedules for FY 2008 will become effective 60 days after publication of the final rule in the

Federal Register

. The NRC will send an invoice for the amount of the annual fee to reactors, part 72 licensees, major fuel cycle facilities, and other licensees with annual fees of $100,000 or more, upon publication of the FY 2008 final rule. For these licensees, payment is due on the effective date of the FY 2008 final rule. Because these licensees are billed quarterly, the payment due is the amount of the total FY 2008 annual fee, less payments made in the first three quarters of the fiscal year.

Materials licensees with annual fees of less than $100,000 are billed annually. Those materials licensees whose license anniversary date during FY 2008 falls before the effective date of the FY 2008 final rule will be billed for the annual fee during the anniversary month of the license at the FY 2007 annual fee rate. Those materials licensees whose license anniversary date falls on or after the effective date of the FY 2008 final rule will be billed for the annual fee at the FY 2008 annual fee rate during the anniversary month of the license, and payment will be due on the date of the invoice.

The NRC will not routinely mail the FY 2008 final fee rule or future final fee rules to applicants or licensees. The NRC will send the final rule to any licensee or other person upon specific request. To request a copy, contact the License Fee Team, Division of Financial Management, Office of the Chief Financial Officer, at 301-415-7554, or e-mail

fees.resource@nrc.gov.

In addition to publication in the

Federal Register

, the final rule is available on the Internet at

http://www.regulations.gov

.

The NRC is amending 10 CFR parts 170 and 171 as discussed in Sections III.A and III.B of this document.

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

The NRC is establishing a single hourly rate of $238 to recover the full cost of activities under part 170, and will use this rate to calculate “flat” application fees. The rule also makes minor administrative changes for

purposes of clarification and consistency.

The NRC is making the following changes:

1. Hourly Rate

The NRC's hourly rate is used in assessing full cost fees for specific services provided, as well as for flat fees for certain application reviews. The NRC is lowering the FY 2008 hourly rate to $238 from the FY 2007 rate of $258. This rate is applicable to all activities for which fees are assessed under §§ 170.21 and 170.31. The FY 2008 hourly rate is lower than the hourly rate of $258 in the FY 2007 final fee rule primarily due to the revised higher estimate of direct hours per FTE used in the hourly calculation. The hourly rate calculation is described in further detail in the following paragraphs.

The NRC's single hourly rate is calculated by dividing the recoverable budgeted resources (excluding direct contract activities) by mission direct FTE hours. The numerator, recoverable budget resources, is the sum of (1) mission direct program salaries and benefits; (2) mission indirect salaries and benefits and contract activity; and (3) agency management and support and Inspector General. The only budgeted resources excluded from the hourly rate are those for mission direct contract activities. The denominator, mission direct FTE hours, is derived by multiplying budgeted mission direct FTE by the annual direct hours per FTE. Although the numerator (i.e., net recoverable budget excluding contract activities) increased by 11 percent as compared with FY 2007, it is lower than the rate of increase in the denominator (i.e., mission direct FTE hours) which increased by 21 percent. This resulted in a lower hourly rate for FY 2008 as compared with FY 2007. The increase in the mission direct FTE hours in FY 2008 compared with FY 2007 is due to the increase in direct FTEs (2,079 FTE vs. 1,835 FTE) and revised higher estimate of direct hours per FTE (1,371 hours vs. 1,287 hours).

The NRC has reviewed data from its time and labor system to determine if the direct hours worked annually per direct FTE estimate requires updating for the FY 2008 fee rule. Based on this review of the most recent data available, the NRC determined that 1,371 hours is the best estimate of direct hours worked annually per direct FTE. This estimate excludes all non-mission direct hours, such as training, general administration, and leave. Because the NRC's hourly rates are calculated by dividing the net recoverable budget by the mission direct FTE hours (see descriptions above), the higher the number of direct hours per FTE used in the calculation, the lower the hourly rates.

The NRC is updating its hourly rate calculation to reflect its latest estimate of direct hours per FTE to more accurately reflect the NRC's cost of providing part 170 services, which would allow the NRC recover the cost of these services through part 170 fees. The NRC believes that this is consistent with guidance provided in the Office of Management and Budget Circular A-25 on recovering the full cost of services provided to identifiable recipients. The lower hourly rate caused a decrease in both the full cost fees for licensing and inspection activities, and the materials flat fees for license applications.

Table II shows the results of the hourly rate calculation methodology. (Individual values may not sum to totals due to rounding.)

Table II.—FY 2008 Hourly Rate Calculation

Mission Direct Program Salaries & Benefits

$292.6M

Mission Indirect Salaries & Benefits, and Contract Activity

120.7M

Agency Management and Support, and IG

266.2M

Subtotal

$679.5M

Less Offsetting Receipts

−0.0M

Net Recoverable Budget Included in Hourly Rate

$679.5M

Mission Direct FTEs

2,079

Professional Hourly Rate (Net Recoverable Budget Included in Hourly Rate divided by Mission Direct FTE times 1,371 Annual Direct Hours Per FTE)

$238

As shown in Table II, dividing the $679.5 million budgeted amount (rounded) included in the hourly rate by total mission direct hours (2,079 FTE times 1,371 hours) results in an hourly rate of $238. The hourly rate is rounded to the nearest whole dollar.

2. “Flat” Application Fee Changes

As noted above, the NRC is adjusting the current flat application fees in §§ 170.21 and 170.31 to reflect the revised hourly rate of $238. These flat fees are calculated by multiplying the average professional staff hours needed to process the licensing actions by the professional hourly rate for FY 2008. The agency estimates the average professional staff hours needed to process licensing actions every other year as part of its biennial review of fees performed in compliance with the Chief Financial Officers Act of 1990. This review was last performed as part of the FY 2007 fee rulemaking. The lower hourly rate of $238 is the main reason for the reduction in the application fees.

The amounts of the materials licensing flat fees are rounded so that the fees would be convenient to the user and the effects of rounding would be

de minimis

. Fees under $1,000 are rounded to the nearest $10, fees that are greater than $1,000 but less than $100,000 are rounded to the nearest $100, and fees that are greater than $100,000 are rounded to the nearest $1,000.

The licensing flat fees are applicable for fee categories K.1. through K.5. of § 170.21, and fee categories 1.C., 1.D., 2.B., 2.C., 3.A. through 3.S., 4.B. through 9.D., 10.B., 15.A. through 15.R., 16, and 17 of § 170.31. Applications filed on or after the effective date of the FY 2008 final fee rule will be subject to the revised fees in the final rule.

3. Administrative Amendments

The NRC is adding program codes next to the materials users fee categories in § 170.31. At the time NRC receives a materials users license application, a five-digit program code number is assigned by the agency to each license to designate the major activity or principal use authorized in the license. More than one code may apply to a given license. The fee amount for the license under 10 CFR parts 170 and 171 is determined by the fee category, which is also based on the authorized usage contained on the license. To reduce the risk of misinterpretation of material uses authorized in the license while establishing a fee category, the NRC is implementing a process that links a

program code directly to a fee category. Once a program code is assigned to the license, it will assist the licensee to correctly identify the fee amount(s) by looking up the program code(s) in § 170.31.

In summary, the NRC is making the following changes to 10 CFR part 170:

1. Establish revised professional hourly rate to use in assessing fees for specific services;

2. Revise the license application fees to reflect the FY 2008 hourly rate; and

3. Make certain administrative changes for purposes of clarification.

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

The NRC is making the following changes to part 171: Using its fee relief to reduce all licensees' annual fees; changing the number of NRC licensees for some fee categories; establishing rebaselined annual fees based on the NRC's FY 2008 budget authority; and making some minor administrative amendments. The final amendments are described as follows:

1. Application of “Fee Relief”

The NRC is using its fee relief to reduce all licensees' annual fees, based on their percent of the budget.

The NRC applies the 10 percent of its budget that is excluded from fee recovery under OBRA-90, as amended (fee relief), to offset the cost of activities which do not directly benefit current NRC licensees. The cost of these “surcharge” activities are totaled, and then reduced by the amount of the NRC's fee relief. Historically, any remaining surcharge cost was allocated to all licensees' annual fees, based on their percent of the budget (i.e., over 80 percent was allocated to power reactors each year).

In FY 2008, the NRC's fee relief exceeds the total surcharge cost by approximately $8.9 million. In FY 2007, this fee relief exceeded the total surcharge cost by approximately $9.8 million. Although the fee relief in FY 2008 is approximately $12.2 million higher compared with FY 2007, the amount of fee relief allocated to licensees decreases primarily due to higher FY 2008 surcharge cost, which includes funding of $15 million for scholarships and fellowships. The scholarships and fellowships funding, to be administered by the NRC, is to enable students to pursue education in fields of study that constitute critical skills areas needed to sustain NRC's regulatory mission and benefit the nuclear sector. This $15 million funding for scholarships and fellowships does not directly benefit the existing NRC licensees. Therefore, the NRC has classified it as a surcharge activity to be offset by the fee relief.

The excess fee relief for the FY 2008 final rule increased by approximately $1.4 million compared with the proposed primarily due to a change in the generic decommissioning/reclamation surcharge costs. The amount in this surcharge category decreased from the proposed rule due to a smaller budget resource allocation for the generic decommissioning activities related to uranium recovery sites and a higher part 170 revenue estimate for all generic decommissioning/reclamation activities.

As in FY 2007, the NRC is using the $8.9 million excess fee relief to reduce all licensees' annual fees, based on their percent of the fee recoverable budget authority. This is consistent with the existing fee methodology, in that the benefits of the NRC's fee relief are allocated to licensees in the same manner as cost was allocated when the NRC did not receive enough fee relief to pay for surcharge activities. In FY 2008, the power reactors class of licensees will receive approximately 90 percent of the fee relief based on their share of the NRC fee recoverable budget authority.

The total budgeted resources for the NRC's surcharge activities in FY 2008 are $77.7 million. The NRC's total fee relief in FY 2008 is $86.6 million, leaving $8.9 million in fee relief to be used to reduce all licensees' annual fees. These values are shown in Table III. (Individual values may not sum to totals due to rounding.)

Table III.—Surcharge Costs

[Dollars in millions]

Category of costs

FY 2008

budgeted costs

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

a. International activities

$12.9

b. Agreement State oversight

8.8

c. Scholarships and Fellowships

15.0

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

a. Fee exemption for nonprofit educational institutions

10.9

b. Costs not recovered from small entities under 10 CFR 171.16(c)

3.8

3. Activities supporting NRC operating licensees and others:

a. Regulatory support to Agreement States

9.9

b. Generic decommissioning/reclamation (not related to the power reactor and spent fuel storage fee classes)

13.5

c. In-situ Leach Uranium Extraction rulemaking and unregistered general licensees

2.9

Total surcharge costs

77.7

Less 10 percent of NRC's FY 2008 total budget (less non-fee items)

−86.6

Fee Relief to be Allocated to All Licensees' Annual Fees

−8.9

Table IV shows how the NRC is allocating the $8.9 million in fee relief to each license fee class. (Individual amounts may not sum to totals due to rounding.) As explained previously, the NRC is allocating this fee relief to each license fee class based on the percent of the budget for that fee class compared to the NRC's total budget. The fee relief is used to partially offset the required annual fee recovery from each fee class. Sections 171.15(d)(1) and 171.16(e)

clarify that the surcharge allocated to annual fees may be negative (i.e., an annual fee reduction).

Separately, the NRC has continued to allocate the low level waste (LLW) surcharge costs based on the volume of LLW disposal of certain classes of licenses. Table IV also shows the allocation of the LLW surcharge. Because LLW activities support NRC licensees, the costs of these activities are not offset by the NRC's fee relief. For FY 2008, the LLW surcharge cost is $2.8 million. The annual fee for the materials users fee class includes a surcharge (i.e., not an annual fee reduction), because the LLW surcharge allocated to the fee class is greater than its allocated fee relief.

Table IV.—Allocation of Fee Relief and LLW Surcharge

LLW surcharge

Percent

$M

Non-LLW surcharge

(fee reduction)

Percent

$M

Total

$M

Operating Power Reactors

74

2.1

89.6

−8.0

−5.9

Spent Fuel Storage/Reactor Decommissioning

2.9

−0.3

−0.3

Test and Research Reactors

0.1

0.0

0.0

Fuel Facilities

8

0.2

4.1

−0.4

−0.1

Materials Users

18

0.5

2.5

−0.2

0.3

Transportation

0.4

0.0

0.0

Rare Earth Facilities

0.0

0.0

0.0

Uranium Recovery

0.3

0.0

0.0

Total Surcharge

100

2.8

100.0

−8.9

−6.0

2. Agreement State Activities

By letter dated November 9, 2006, Governor Edward Rendell of the Commonwealth of Pennsylvania requested that the NRC enter into an Agreement with the State as authorized by Section 274 of the Atomic Energy Act of 1954, as amended. The NRC approved the request. This resulted in the transfer of approximately 650 licenses from the NRC to the Commonwealth of Pennsylvania effective March 31, 2008.

The continuing costs of Agreement State regulatory support and oversight for the Commonwealth of Pennsylvania, as for any other Agreement State, are recovered through the surcharge (as reduced by the 10 percent of its budget that the NRC receives in appropriations each year for these types of activities), consistent with existing policy. The budgeted resources for the regulatory infrastructure to support these types of licensees are prorated to the surcharge based on the percent of total licensees in Agreement States. The NRC has updated the allocation percentage in its fee calculation to make sure that resources are allocated equitably between the NRC materials users fee class and the Agreement States surcharge category. Accordingly, as a result of the Commonwealth of Pennsylvania becoming an Agreement State, the NRC has increased the percentage of materials users regulatory infrastructure costs prorated to the surcharge category from 80 percent in FY 2007 to 82 percent in FY 2008. However, some resources associated with the materials users fee class are not prorated to the surcharge (e.g., resources for licensing and inspection activities), because these resources are for the purpose of supporting NRC licensees only.

The number of NRC materials users licensees also has been updated to reflect the transfer of licensees to the Commonwealth of Pennsylvania effective March 31, 2008. Because of the effective date of March 31, 2008, which is at the end of the first half of the FY, the approximately 650 licensees transferred to the Commonwealth of Pennsylvania are subject to one-half of their NRC annual fee for FY 2008. The number of materials users licensees has been revised to reflect that NRC will still collect one-half of the annual fee from these licensees. Also, the single NRC rare earth license under fee category 2.A.(2)(c) has been transferred to the Commonwealth of Pennsylvania. Because no other rare earth facility application is expected for FY 2008, an annual fee was not computed for fee category 2.A.(2)(c). As with other licensees transferred to the Commonwealth of Pennsylvania in FY 2008, this rare earth facility paid one-half of the annual fee in effect on its anniversary date in January 2008.

This is not a substantive policy change, but rather a calculation change that will result in a more accurate estimate of the actual costs of Agreement State oversight activities.

3. Revised Annual Fees

The NRC is revising its annual fees in § § 171.15 and 171.16 for FY 2008 to recover approximately 90 percent of the NRC's FY 2008 budget authority less the non-fee amounts and the estimated amount to be recovered through part 170 fees. The part 170 estimate for this final rule increased by approximately $8 million from the proposed fee rule based on the latest invoice data available. The total amount to be recovered through annual fees for FY 2008 decreased to $468.9 million compared with $477.2 million in the proposed fee rule primarily due to the increase in the part 170 estimate. The required annual fee collection in FY 2007 was $465.3 million.

The NRC uses one of two methods to determine the amounts of the annual fees, for each type of licensee, established in its fee rule each year. One method is “rebaselining,” for which the NRC's budget is analyzed in detail and budgeted resources are allocated to fee classes and categories of licensees. The second method is the “percent change” method, for which fees are revised based on the percent change in the total budget, taking into account other adjustments such as the number of licensees and the projected revenue to be received from part 170 fees.

As explained in the FY 2006 final fee rule (71 FR 30733; May 30, 2006), the Commission has determined that the agency should proceed with a presumption in favor of rebaselining in calculating annual fees each year, and that the percent change method should be used infrequently. This is because the Commission expects that most years there will be budget and other changes that warrant the use of the rebaselining method.

Rebaselining fees results in increased annual fees compared with FY 2007 for two classes of licensees (

power reactors

and non-power reactors

), and decreased annual fees for five classes of licensees (

spent fuel storage/reactor decommissioning, fuel facilities, uranium recovery, materials users, and transportation

). There is no annual fee for the rare earth fee class because this NRC fee class will no longer exist in FY 2008. As discussed in Section III.B.2 of this document, “Agreement State Activities,” NRC's only rare earth facility transferred to the Commonwealth of Pennsylvania, which became an Agreement State, effective March 31, 2008. In FY 2008, this rare earth facility paid one-half of the annual fee in effect on its anniversary date.

The significant factors affecting the changes to the annual fee amounts as compared with FY 2007 are the increase in budgeted resources for new reactor activities, a higher part 170 revenue estimate, and higher prior year fee collections. The NRC's total fee recoverable budget, as mandated by law, is approximately $109.8 million larger in FY 2008 as compared with FY 2007. Because much of this increase is for the additional workload demand in the area of new reactor licensing, this increase mainly affects the operating power reactors' annual fees. Other factors affecting all annual fees include the distribution of budgeted costs to the different classes of licenses (based on the specific activities NRC will perform in FY 2008), the estimated part 170 collections for the various classes of licenses, and allocation of the fee relief to all fee classes. The percentage of the NRC's budget not subject to fee recovery remained unchanged at 10 percent from FY 2007 to FY 2008.

Table V shows the rebaselined annual fees for FY 2008 for a representative list of categories of licenses. The FY 2007 fee is also shown for comparative purposes.

Table V.—Rebaselined Annual Fees for FY 2008

Class/category of licenses

FY 2007

annual fee

FY 2008

annual fee

Operating Power Reactors (including Spent Fuel Storage/Reactor Decommissioning annual fee)

$4,043,000

$4,167,000

Spent Fuel Storage/Reactor Decommissioning

159,000

135,000

Test and Research Reactors (Non-power Reactors)

76,300

76,500

High Enriched Uranium Fuel Facility

4,096,000

3,007,000

Low Enriched Uranium Fuel Facility

1,237,000

899,000

UF

6

Conversion Facility

811,000

589,000

Conventional Mills

18,700

10,300

Typical Materials Users:

Radiographers

14,100

11,100

Well Loggers

4,400

3,400

Gauge Users (Category 3P)

2,700

2,100

Broad Scope Medical

29,000

22,900

The budgeted costs allocated to each class of licenses and the calculations of the rebaselined fees are described in paragraphs a. through h. of this section. The work papers which support this final rule show in detail the allocation of NRC's budgeted resources for each class of license and how the fees are calculated. The reports included in these work papers summarize the FY 2008 budgeted FTE and contract dollars allocated to each fee class and surcharge category at the planned activity and program level, and compare these allocations to those used to develop final FY 2007 fees. In FY 2008, NRC has also revised the format of the work papers to make it easier for stakeholders to find the information supporting this final fee rule. The sequence of the information in the work papers now matches the sequence in this final fee rule. In addition, a brief overview of each of the tabs in the work papers has been added for the reader's convenience. The work papers are available electronically at the NRC's Electronic Reading Room on the Internet at Web site address

http://www.nrc.gov/reading-rm/adams.html

. The work papers may also be examined at the NRC PDR located at One White Flint North, Room O-1F22, 11555 Rockville Pike, Rockville, Maryland.

a. Fuel Facilities

The FY 2008 budgeted cost to be recovered in the annual fees assessment to the fuel facility class of licenses (which includes licensees in fee categories 1.A.(1)(a), 1.A.(1)(b), 1.A.(2)(a), 1.A.(2)(b), 1.A.(2)(c), 1.E., and 2.A.(1), under § 171.16) is approximately $13.9 million. This value is based on the full cost of budgeted resources associated with all activities that support this fee class, which is reduced by estimated part 170 collections and adjusted to reflect the net allocated fee relief (negative surcharge), allocated generic transportation resources, and carryover. The summary calculations used to derive this value are presented in Table VI for FY 2008, with FY 2007 values shown for comparison. (Individual values may not sum to totals due to rounding.)

Table VI.—Annual Fee Summary Calculations for Fuel Facilities

[Dollars in millions]

Summary fee calculations

FY 2007 final

FY 2008 final

Total budgeted resources

$32.2

$31.5

Less estimated part 170 receipts

−13.6

−17.2

Net part 171 resources

18.6

14.3

Allocated generic transportation

+0.5

+0.5

Allocated surcharge

−0.2

−0.1

Billing adjustments (including carryover)

+0.1

−0.8

Total required annual fee recovery

18.9

13.9

The decrease in fuel facilities FY 2008 total budgeted cost to be recovered compared with FY 2007 is due to lower fuel facility resources for licensing activities, a higher part 170 revenue estimate, and adjustment for higher carryover. The part 170 revenue estimate for FY 2008 final rule increased by approximately 1 percent compared with the proposed rule due to increased billing for fuel facilities. This results in lower FY 2008 annual fees for fuel facilities in this final fee rule.

The total required annual fee recovery amount is allocated to the individual fuel facility licensees based on the effort/fee determination matrix developed for the FY 1999 final fee rule (64 FR 31447; June 10, 1999). In the matrix included in the NRC publicly available work papers, licensees are grouped into categories according to their licensed activities (i.e., nuclear material enrichment, processing operations, and material form). In addition, the licensees are grouped according to the level, scope, depth of coverage, and rigor of generic regulatory programmatic effort applicable to each category from a safety and safeguards perspective. This methodology can be applied to determine fees for new licensees, current licensees, licensees in unique license situations, and certificate holders.

This methodology is adaptable to changes in the number of licensees or certificate holders, licensed or certified material and/or activities, and total programmatic resources to be recovered through annual fees. When a license or certificate is modified, it may result in a change of category for a particular fuel facility licensee as a result of the methodology used in the fuel facility effort/fee matrix. Consequently, this change may also have an effect on the fees assessed to other fuel facility licensees and certificate holders. For example, if a fuel facility licensee amends its license/certificate (e.g., decommissioning or license termination) that results in it not being subject to part 171 costs applicable to the fee class, then the budgeted costs for the safety and/or safeguards components will be spread among the remaining fuel facility licensees/certificate holders.

The methodology is applied as follows. First, a fee category is assigned based on the nuclear material and activity authorized by license or certificate. Although a licensee/certificate holder may elect not to fully use a license/certificate, the license/certificate is still used as the source for determining authorized nuclear material possession and use/activity. Second, the category and license/certificate information are used to determine where the licensee/certificate holder fits into the matrix. The matrix depicts the categorization of licensees/certificate holders by authorized material types and use/activities.

Once the structure of the matrix is established, the NRC's fuel facility project managers and regulatory analysts determine the level of effort associated with regulating each of these facilities. This is done by assigning, for each fuel facility, separate effort factors for the safety and safeguards activities associated with each type of regulatory activity. The matrix includes ten types of regulatory activities, including enrichment and scrap/waste related activities (see the work papers for the complete list). Effort factors are assigned as follows: One (low regulatory effort), five (moderate regulatory effort), and ten (high regulatory effort). These effort factors are then totaled for each fee category, so that each fee category has a total effort factor for safety activities and a total effort factor for safeguards activities.

The effort factors for the various fuel facility fee categories are summarized in Table VII. The value of the effort factors shown, as well as the percent of the total effort factor for all fuel facilities, reflects the total regulatory effort for each fee category (not per facility). Note that the effort factors for the High Enriched Uranium Fuel fee category have changed from FY 2007. The safety and safeguards factors increased in FY 2008 to reflect NRC's review of an amendment request by a licensee to handle liquid UF

6

workload. Taking into account both of these changes, the total safety and safeguards effort factor change is relatively small.

Table VII.—Effort Factors for Fuel Facilities

Facility type

(fee category)

Number of

facilities

Effort factors

(percent of total)

Safety

Safeguards

High Enriched Uranium Fuel

2

92 (35.8)

102 (53.7)

Uranium Enrichment

2

70 (27.2)

40 (21.1)

Low Enriched Uranium Fuel

3

66 (25.7)

21 (11.1)

UF

6

Conversion

1

12 (4.7)

7 (3.7)

Limited Operations

1

8 (3.1)

3 (1.6)

Gas Centrifuge Enrichment Demonstration

1

3 (1.2)

15 (7.9)

Hot Cell

1

6 (2.3)

2 (1.1)

The budgeted resources for safety activities ($8,045,570) are allocated to each fee category based on its percent of the total regulatory effort for safety activities. For example, if the total effort factor for safety activities for all fuel

facilities is 100, and the total effort factor for safety activities for a given fee category is 10, that fee category will be allocated 10 percent of the total budgeted resources for safety activities. Similarly, the budgeted resources for safeguards activities ($5,948,086) are allocated to each fee category based on its percent of the total regulatory effort for safeguards activities. The fuel facility fee class' portion of the fee relief (negative surcharge of $137,150) and the billing adjustment (a fee reduction in FY 2008 of $752,859) is allocated to each fee category based on its percent of the total regulatory effort for both safety and safeguards activities. The annual fee per licensee is then calculated by dividing the total allocated budgeted resources for the fee category by the number of licensees in that fee category as summarized in Table VIII.

Table VIII.—Annual Fees for Fuel Facilities

Facility type

(fee category)

FY 2008

annual fee

High Enriched Uranium Fuel

$3,007,000

Uranium Enrichment

1,705,000

Low Enriched Uranium

899,000

UF

6

Conversion

589,000

Gas Centrifuge Enrichment Demonstration

558,000

Limited Operations Facility

341,000

Hot Cell (and others)

248,000

The NRC does not expect to authorize operation of any new uranium enrichment facility in FY 2008. The annual fee applicable to any type of new uranium enrichment facility is the annual fee in § 171.16, fee category 1.E., Uranium Enrichment, unless the NRC establishes a new fee category for the facility in a subsequent rulemaking.

b. Uranium Recovery Facilities

The total FY 2008 budgeted cost to be recovered through annual fees assessed to the uranium recovery class (which includes licensees in fee categories 2.A.(2)(a), 2.A.(2)(b), 2.A.(3), 2.A.(4), 2.A.(5) and 18.B., under § 171.16), is approximately $0.46 million. The derivation of this value is shown in Table IX, with FY 2007 values shown for comparison purposes. (Individual values may not sum to totals due to rounding.)

Table IX.—Annual Fee Summary Calculations for Uranium Recovery Facilities

[Dollars in millions]

Summary fee calculations

FY 2007 final

FY 2008 final

Total budgeted resources

$1.32

$2.56

Less estimated part 170 receipts

−0.61

−2.02

Net part 171 resources

0.71

0.54

Allocated generic transportation

+N/A

+N/A

Allocated surcharge

−0.02

−0.03

Billing adjustments (including carryover)

+0.00

−0.06

Total required annual fee recovery

0.69

0.46

The decrease in the total required annual fee recovery in FY 2008 compared with FY 2007 is mainly due to a higher part 170 revenue estimate and higher billing adjustment partially offset by an increase in uranium recovery licensing and inspection resources. The budgeted resources for the final rule increased by approximately $0.9 million compared with the proposed rule due to change in allocations to the uranium recovery fee class. More of FY 2008 resources are being used to support licensing work for new uranium recovery facilities and less for generic decommissioning activities related to uranium recovery sites. Therefore, resources from the surcharge category, generic decommissioning/reclamation, were shifted to the uranium recovery fee class for the final rule. This increase in the uranium recovery budget allocations was offset by a higher part 170 revenue estimate compared with the proposed rule. The part 170 revenue estimate increased by $1.07 million compared with the proposed rule due to increased billing for review of applications for new uranium recovery facilities. The annual fee in the final rule decreased compared with the proposed rule for the DOE and non DOE licensees in the uranium recovery fee class primarily due to higher part 170 revenue estimate.

Of the required annual fee collections, $398,000 (rounded) is assessed to DOE for licensing its Uranium Mill Tailings Radiation Control Act (UMTRCA) sites under fee category 18.B. The remaining $58,000 (rounded) will be recovered through annual fees assessed to the other licensees in this fee class (i.e., conventional mills, in-situ leach solution mining facilities), 11e.(2) mill tailings disposal facilities (incidental to existing tailings sites), and a uranium water treatment facility.

In the FY 2002 final fee rule (67 FR 42611; June 24, 2002), the NRC developed a fee recovery methodology for the uranium recovery fee class that would allocate the total annual fee amount for this fee class, less the amounts specifically budgeted for Title I activities, equally between DOE (for its UMTRCA Title I and Title II sites) and the other licensees in this fee class. In the FY 2007 final rule (72 FR 31414; June 6, 2007), the NRC changed this

methodology to allocate 45 percent of the total annual fee amount, less the amounts specifically budgeted for Title I activities, to DOE's UMTRCA annual fee and 55 percent to the other licensees in this fee class. Based on updated information, NRC is changing this allocation percentage in FY 2008. In FY 2008, 40 percent of the total annual fee amount of $484,581, less $359,471 specifically budgeted for Title I activities, is allocated to DOE's UMTRCA sites. The remaining 60 percent of the total annual fee (less the amounts specifically budgeted for Title I activities) is allocated to other licensees. The reduction in allocation percentage of budgeted resources for licensing the DOE is based on the reduced effort expended for DOE UMTRCA sites.

The annual fee assessed to DOE is the sum of the resources specifically budgeted for NRC's Title I activities plus 40 percent of the remaining annual fee amount (including the surcharge and generic/other costs) for the uranium recovery class. The remaining 60 percent of the budgeted resources, surcharge, and generic/other costs allocated to this fee class are assessed to the other NRC uranium recovery licensees. The costs to be recovered through annual fees assessed to the uranium recovery class are shown in Table X.

Table X.—Costs Recovered Through Annual Fees; Uranium Recovery Fee Class

DOE Annual Fee Amount (UMTRCA) Title I and Title II general licenses:

UMTRCA Title I budgeted costs

$359,471

40 percent of generic/other uranium recovery budgeted costs

50,044

40 percent of uranium recovery surcharge

−11,585

Total Annual Fee Amount for DOE (rounded)

398,000

Annual Fee Amount for Other Uranium Recovery Licenses:

60 percent of generic/other uranium recovery budgeted costs less the amounts specifically budgeted for Title I activities

75,066

60 percent of uranium recovery surcharge

−17,377

Total Annual Fee Amount for Other Uranium Recovery Licenses

57,688

The NRC will continue to use a matrix (which is included in the supporting work papers) to determine the level of effort associated with regulating the different (non-DOE) licensees in this fee class. The weights derived in this matrix are used to allocate the approximately $58,000 annual fee amount to these licensees. The use of this uranium recovery annual fee matrix was established in the FY 1995 final fee rule (60 FR 32217; June 20, 1995). The FY 2008 matrix is described as follows.

First, the methodology identifies the categories of licenses included in this fee class (excluding DOE). In FY 2008, these categories are conventional uranium mills (Class I facilities), uranium solution mining facilities (Class II facilities), mill tailings disposal facilities (11e.(2) disposal facilities), and uranium water treatment facilities. The uranium water treatment facility fee category in the uranium recovery fee class was created in FY 2007 (72 FR 31413; June 6, 2007).

Second, the matrix identifies the types of operating activities that support these licensees. Note that the activities related to generic decommissioning/reclamation are not included in the matrix, because generic decommissioning/reclamation activities are included in the surcharge, and therefore need not be a factor in determining annual fees. The activities included in the FY 2008 matrix are ‘operations,’ ‘waste operations,’ and ‘groundwater remediation.’ The relative weight of each type of activity is then determined, based on the regulatory resources associated with each activity. The ‘operations,’ ‘waste operations,’ and ‘groundwater remediation’ activities have weights of 10, 5, and 10, respectively, in the FY 2008 matrix.

Once the structure of the matrix is established, the NRC's uranium recovery project managers and regulatory analysts determine the level of effort associated with regulating each of these facilities. This is done by assigning, for each fee category, separate effort factors for each type of regulatory activity in the matrix. Effort factors are assigned as follows: One (low regulatory effort), five (moderate regulatory effort), and ten (high regulatory effort). These effort factors are first multiplied by the relative weight assigned to each activity (described previously). Total effort factors by fee category, and per licensee in each fee category, are then calculated. These effort factors thus reflect the relative regulatory effort associated with each licensee and fee category.

The effort factors per licensee and per fee category, for each of the non-DOE fee categories included in the uranium recovery fee class, are as follows:

Table XI.—Effort Factors for Uranium Recovery Licenses

Fee category

Number of

licensees

Effort factor

per licensee

Total effort factor

Value

Percent total

Class I (conventional mills)

1

75

75

18

Class II (solution mining)

3

75

225

54

11e.(2) disposal incidental to existing tailings sites

1

75

75

18

Uranium water treatment

1

45

45

11

The annual fee per licensee is calculated by dividing the total allocated budgeted resources for the fee category by the number of licensees in that fee category as summarized in Table XII. Applying these factors to the approximately $58,000 in budgeted costs to be recovered from non-DOE uranium recovery licensees results in the following annual fees for FY 2008:

Table XII.—Annual Fees for Uranium Recovery Licensees (Other Than DOE)

Facility type

FY 2008

annual fee

Class I (conventional mills)

$10,300

Class II (solution mining)

10,300

11e.(2) disposal

N/A

11e.(2) disposal incidental to existing tailings sites

10,300

Uranium water treatment

6,200

Because there are no longer any 11e.(2) disposal facilities under the NRC's regulatory jurisdiction, the NRC has not allocated any budgeted resources for these facilities, and therefore has not established an annual fee for this fee category. If NRC issues a license for this fee category in the future, then the Commission will establish the appropriate annual fee.

c. Operating Power Reactors

The approximately $419.3 million in budgeted costs to be recovered through FY 2008 annual fees assessed to the power reactor class was calculated as shown in Table XIII. FY 2007 values are shown for comparison. (Individual values may not sum to totals due to rounding.)

Table XIII.—Annual Fee Summary Calculations for Operating Power Reactors

[Dollars in millions]

Summary fee calculations

FY 2007 final

FY 2008 final

Total budgeted resources

$588.6

$698.8

Less estimated part 170 receipts

−180.7

−258.1

Net part 171 resources

407.9

440.7

Allocated generic transportation

+1.0

+1.0

Allocated surcharge

−6.0

−5.9

Billing adjustments (including carryover)

+1.1

−16.5

Total required annual fee recovery

404.0

419.3

The budgeted costs to be recovered through annual fees to power reactors are divided equally among the 104 power reactors licensed to operate. This results in a FY 2008 annual fee of $4,032,000 per reactor. Additionally, each power reactor licensed to operate is assessed the FY 2008 spent fuel storage/reactor decommissioning annual fee of $135,000. This results in a total FY 2008 annual fee of $4,167,000 for each power reactor licensed to operate. The part 170 revenue estimate for the final rule increased by approximately $5.3 million compared with the proposed rule due to increased billings for work related to new applications. As a result, the annual fee for each power reactor decreased by approximately 2 percent in the final rule.

The annual fee for power reactors increases in FY 2008 compared to FY 2007 due to an increase in budgeted resources for a number of activities, including regulatory infrastructure for new reactor licensing activities related to combined license applications and design certifications. This increase is partially offset by the higher estimated part 170 collections, and adjustment for higher carryover compared with FY 2007. The annual fees for power reactors are presented in § 171.15.

d. Spent Fuel Storage/Reactor Decommissioning

For FY 2008, budgeted costs of approximately $16.6 million for spent fuel storage/reactor decommissioning are to be recovered through annual fees assessed to part 50 power reactors, and to part 72 licensees who do not hold a part 50 license. Those reactor licensees that have ceased operations and have no fuel onsite are not subject to these annual fees. Table XIV shows the calculation of this annual fee amount. FY 2007 values are shown for comparison. (Individual values may not sum to totals due to rounding.)

Table XIV.—Annual Fee Summary Calculations for the Spent Fuel Storage/Reactor Decommissioning Fee Class

[Dollars in millions]

Summary fee calculations

FY 2007 final

FY 2008 final

Total budgeted resources

$23.9

$22.4

Less estimated part 170 receipts

−4.2

−5.3

Net part 171 resources

19.7

17.1

Allocated generic transportation

+0.3

+0.2

Allocated surcharge

−0.4

−0.3

Billing adjustments (including carryover)

+0.0

−0.5

Total required annual fee recovery

19.6

16.6

The required annual fee recovery amount is divided equally among 123 licensees, resulting in a FY 2008 annual fee of $135,000 per licensee. The total required annual fee for this fee class decreased in FY 2008 compared to FY 2007 due to a decrease in the budgeted resources for decommissioning, higher estimated part 170 collections, and adjustment for higher carryover. The part 170 revenue estimate for the final rule increased by approximately 13 percent due to increased billings for spent fuel storage, which resulted in a lower annual fee compared with the proposed rule.

e. Test and Research Reactors (Non-power Reactors)

Approximately $310,000 in budgeted costs is to be recovered through annual fees assessed to the test and research reactor class of licenses for FY 2008. Table XV summarizes the annual fee calculation for test and research reactors for FY 2008. FY 2007 values are shown for comparison. (Individual values may not sum to totals due to rounding.)

Table XV.—Annual Fee Summary Calculations for Test and Research Reactors

[Dollars in millions]

Summary fee calculations

FY 2007 final

FY 2008 final

Total budgeted resources

$0.85

$0.99

Less estimated part 170 receipts

−0.55

−0.66

Net part 171 resources

0.30

0.33

Allocated generic transportation

+0.01

+0.01

Allocated surcharge

−0.01

−0.01

Billing adjustments (including carryover)

+0.00

−0.02

Total required annual fee recovery

0.31

0.31

This required annual fee recovery amount is divided equally among the 4 test and research reactors subject to annual fees and results in a FY 2008 annual fee of $76,500 for each licensee. The slight increase in annual fees from FY 2007 to FY 2008 is due to an increase in budget resources partially offset by a higher part 170 revenue estimate for test and research reactors class and adjustment for higher prior year collections. The part 170 revenue estimates for FY 2008 increased by approximately 20 percent compared with FY 2007 due to increased billing for test and research reactors, including Federal facilities. The Energy Policy Act of 2005 authorizes the NRC to bill Federal facilities for part 170 services.

f. Rare Earth Facilities

As discussed previously in Section III.B.2 of this document, “Agreement State Activities”, NRC will no longer regulate any licensees under the Rare Earth fee class. The one licensee who has a specific license for receipt and processing of source material transferred to the Agreement State, Commonwealth of Pennsylvania, effective March 31, 2008. In FY 2008, this rare earth facility paid one-half of the annual fee in effect on its anniversary date in January 2008.

Because the agency does not anticipate receiving an application for a rare earth facility this fiscal year, no budget resources were allocated to this fee class. NRC will not publish an annual fee for the fee category 2.A.(2)(c) in FY 2008.

g. Materials Users

Table XVI shows the calculation of the FY 2008 annual fee amount for materials users licensees. FY 2007 values are shown for comparison. (Individual values may not sum to totals due to rounding.) The following fee categories under § 171.16 are included in this fee class: 1.C., 1.D., 2.B., 2.C., 3.A. through 3.S., 4.A. through 4.C., 5.A., 5.B., 6.A., 7.A. through 7.C., 8.A., 9.A. through 9.D., 16, and 17.

Table XVI.—Annual Fee Summary Calculations for Materials Users

[Dollars in millions]

Summary fee calculations

FY 2007

final

FY 2008

final

Total budgeted resources

$25.8

$22.8

Less estimated part 170 receipts

−1.2

−2.0

Net part 171 resources

24.6

20.8

Allocated generic transportation

+0.9

+0.9

Allocated surcharge

+0.3

+0.3

Billing adjustments (including carryover)

+0.0

−0.5

Total required annual fee recovery

25.9

21.4

The annual fee for materials users decreased in the final rule compared with the proposed rule due to a decrease in allocated generic transportation charge. The generic transportation charge decreased primarily due to higher part 170 revenues for the Transportation fee class. See further discussion of the decrease in generic transportation resources in Section III.B.3.h. The total required annual fees to be recovered from materials licensees decreased in FY 2008 mainly because of decreases in the budgeted resources allocated to this fee class for licensing

activities, and adjustment for higher carryover. Annual fees for all fee categories within the materials users fee class decreased. The number of licensees also decreased because of the transfer of licensees to the Commonwealth of Pennsylvania. Because the agreement with the Commonwealth of Pennsylvania became effective March 31, 2008, the licenses that transferred to the Commonwealth of Pennsylvania are subject to one-half of the NRC annual fees in FY 2008.

To equitably and fairly allocate the FY 2008 $21.4 million (budgeted costs to be recovered in annual fees) assessed to the approximately 4,400 diverse materials users licensees, the NRC will continue to base the annual fees for each fee category within this class on the part 170 application fees and estimated inspection costs for each fee category. Because the application fees and inspection costs are indicative of the complexity of the license, this approach continues to provide a proxy for allocating the generic and other regulatory costs to the diverse categories of licenses based on NRC's cost to regulate each category. This fee calculation also continues to consider the inspection frequency (priority), which is indicative of the safety risk and resulting regulatory costs associated with the categories of licenses.

The annual fee for these categories of materials users licenses is developed as follows:

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

The constant is the multiple necessary to recover approximately $14.7 million in general costs (including allocated generic transportation costs) and is 0.77 for FY 2008. The average inspection cost is the average inspection hours for each fee category multiplied by the hourly rate of $238. The inspection priority is the interval between routine inspections, expressed in years. The inspection multiplier is the multiple necessary to recover approximately $6.3 million in inspection costs, and is 1.39 for FY 2008. The unique category costs are any special costs that the NRC has budgeted for a specific category of licenses. For FY 2008, approximately $103,000 in budgeted costs for the implementation of revised 10 CFR part 35, Medical Use of Byproduct Material (unique costs), has been allocated to holders of NRC human use licenses.

The annual fee to be assessed to each licensee also includes a share of the $226,000 in fee relief allocated to the materials users fee class (see Section III.B.1., “Application of Fee Relief,” of this document), and for certain categories of these licensees, a share of the approximately $509,000 in LLW surcharge costs allocated to the fee class. The annual fee for each fee category is shown in § 171.16(d).

h. Transportation

Table XVII shows the calculation of the FY 2008 generic transportation budgeted resources to be recovered through annual fees. FY 2007 values are shown for comparison. (Individual values may not sum to totals due to rounding.)

Table XVII.—Annual Fee Summary Calculations for Transportation

[Dollars in millions]

Summary fee calculations

FY 2007

final

FY 2008

final

Total budgeted resources

$5.0

$5.7

Less estimated part 170 receipts

−1.2

−2.3

Net part 171 resources

3.8

3.4

The net FY 2008 budgeted resources for generic transportation activities, including those to support DOE Certificates of Compliance (CoCs), are $3.4 million. The net part 171 resources for these activities in the FY 2008 final rule decreased by $0.6 million compared with the proposed rule. This decrease in the final rule is primarily due to approximately 35 percent increase in part 170 revenue estimate as a result of increased billings for transportation-related reviews. Generic transportation resources associated with fee-exempt entities are not included in this total. These costs are included in the appropriate surcharge category (e.g., the surcharge category for nonprofit educational institutions).

Consistent with the policy established in the NRC's FY 2006 final fee rule (71 FR 30734; May 30, 2006), the NRC will recover generic transportation costs unrelated to DOE as part of existing annual fees for license fee classes. NRC will continue to assess a separate annual fee under § 171.16, fee category 18.A., for DOE transportation activities. The CoCs for DOE decreased in FY 2008 compared to FY 2007 resulting in a lower annual fee for DOE under fee category 18.A.

These resources are distributed to DOE (to be included in its annual fee under fee category 18.A. of § 171.16) and each license fee class based on the CoCs used by DOE and each fee class, as a proxy for the generic resources expended for each fee class. As such, the amount of the generic resources allocated is calculated by multiplying the percentage of total CoCs used by each fee class (and DOE) by the total generic transportation resources to be recovered. In FY 2008, the generic transportation cost allocated to the other fee classes decreased slightly compared to FY 2007 due to the decrease in net budgeted resources for transportation. For the final fee rule, the generic transportation cost allocation to the other fee classes decreased compared with the proposed rule due to higher part 170 estimate for generic transportation activities.

The distribution of these resources to the license fee classes and DOE is shown in Table XVIII. (Individual values may not sum to totals due to rounding.) The distribution is adjusted to account for the licensees in each fee class that are fee exempt. For example, if 3 CoCs benefit the entire test and research reactor class, but only 4 of 30 test and research reactors are subject to annual fees, the number of CoCs used to determine the proportion of generic transportation resources allocated to test and research reactor annual fees equals ((4/30)×3), or 0.4 CoCs.

Table XVIII.—Distribution of Generic Transportation Resources, FY 2008

[Dollars in millions]

License fee class/DOE

Number CoCs benefiting fee class (or DOE)

(Percentage of total CoCs

(percent)

Allocated

generic

transportation

resources

Total

128.0

100.0

$3.41

DOE

31.0

24.2

0.83

Operating Power Reactors

37.0

28.9

0.99

Spent Fuel Storage/Reactor Decommissioning

9.0

7.0

0.24

Test and Research Reactors

0.4

0.3

0.01

Fuel Facilities

18.0

14.1

0.48

Materials Users

32.6

25.4

0.87

The NRC will continue to assess DOE an annual fee based on the part 71 CoCs it holds, and not allocate these DOE-related resources to other licensees' annual fees, because these resources specifically support DOE. Note that DOE's annual fee includes a reduction for the fee relief (see Section III.B.1, 'Application of “Fee Relief”', of this document), resulting in a total annual fee of $719,000 for FY 2008. The fee decrease from last year is primarily due to a decrease in the number of DOE CoCs. The annual fee for DOE in the final rule decreased by approximately 18 percent compared with the proposed rule due to higher part 170 estimate.

4. Administrative Amendments

The NRC is adding program codes next to the materials users fee categories in § 171.16. At the time NRC receives a materials users license application, a five-digit program code number is assigned by the agency to each license to designate the major activity or principal use authorized in the license. More than one code may apply to a given license. The fee amount for the license under the 10 CFR parts 170 and 171 is determined by the fee category which is also based on the authorized usage described on the license. To reduce the risk of misinterpretation of material uses authorized in the license while establishing a fee category, the NRC is implementing a process that links a program code directly to a fee category. Once a program code is assigned to the license, it will assist the licensee to correctly identify the fee amount(s) by looking up the program code(s) in § 171.16.

The NRC is modifying the second sentence of footnote 1 in § 171.16 to clarify that the annual fee waiver will be granted if the licensed activities have permanently ceased before the beginning of the fiscal year. The reference to the last day of the prior year as the date for cessation of licensed activities has been deleted. This will improve the clarity of the sentence.

In summary, the NRC is—

1. Using the NRC's fee relief to reduce all licensees' annual fees, based on their percent of the NRC budget;

2. Revising the number of NRC licensees due to the Commonwealth of Pennsylvania becoming an Agreement State effective March 31, 2008;

3. Establishing rebaselined annual fees for FY 2008; and

4. Making certain administrative changes for purposes of clarification and consistency.

IV. Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995, 15 U.S.C. 3701, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using these standards is inconsistent with applicable law or is otherwise impractical. In this final rule, the NRC is amending the licensing, inspection, and annual fees charged to its licensees and applicants as necessary to recover approximately 90 percent of its budget authority in FY 2008, as required by the OBRA-90, as amended. This action does not constitute the establishment of a standard that contains generally applicable requirements.

V. Environmental Impact: Categorical Exclusion

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

VI. Paperwork Reduction Act Statement

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

et seq.

VII. Regulatory Analysis

With respect to 10 CFR part 170, this final rule was developed under Title V of the IOAA (31 U.S.C. 9701) and the Commission's fee guidelines. When developing these guidelines the Commission took into account guidance provided by the U.S. Supreme Court on March 4, 1974, in

National Cable Television Association, Inc.

v.

United States

, 415 U.S. 36 (1974) and

Federal Power Commission

v.

New England Power Company

, 415 U.S. 345 (1974). In these decisions, the Court held that the IOAA authorizes an agency to charge fees for special benefits rendered to identifiable persons measured by the “value to the recipient” of the agency service. The meaning of the IOAA was further clarified on December 16, 1976, by four decisions of the U.S. Court of Appeals for the District of Columbia:

National Cable Television Association

v.

Federal Communications Commission

, 554 F.2d 1094 (D.C. Cir. 1976);

National Association of Broadcasters

v.

Federal Communications Commission

, 554 F.2d 1118 (D.C. Cir. 1976);

Electronic Industries Association

v.

Federal Communications Commission

, 554 F.2d 1109 (D.C. Cir. 1976); and

Capital Cities Communication, Inc.

v.

Federal Communications Commission

, 554 F.2d 1135 (D.C. Cir. 1976). The Commission's fee guidelines were developed based on these legal decisions.

The Commission's fee guidelines were upheld on August 24, 1979, by the U.S. Court of Appeals for the Fifth Circuit in

Mississippi Power and Light Co.

v.

U.S. Nuclear Regulatory Commission

, 601 F.2d 223 (5th Cir. 1979),

cert. denied

,

444 U.S. 1102 (1980). This court held that:

(1) The NRC had the authority to recover the full cost of providing services to identifiable beneficiaries;

(2) The NRC could properly assess a fee for the costs of providing routine inspections necessary to ensure a licensee's compliance with the Atomic Energy Act of 1954 and with applicable regulations;

(3) The NRC could charge for costs incurred in conducting environmental reviews required by the National Environmental Policy Act, 42 U.S.C. 4321;

(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 OBRA-90, which required that, for FYs 1991 through 1995, approximately 100 percent of the NRC budget authority be recovered through the assessment of fees. OBRA-90 was subsequently amended to extend the 100 percent fee recovery requirement through FY 2000. The FY 2001 Energy and Water Development Appropriation Act (EWDAA) amended OBRA-90 to decrease the NRC's fee recovery amount by 2 percent per year beginning in FY 2001, until the fee recovery amount was 90 percent in FY 2005. The FY 2007 EWDAA extended this 90 percent fee recovery requirement for FY 2007. Section 637 of the Energy Policy Act of 2005 made the 90 percent fee recovery requirement permanent in FY 2007. As a result, the NRC is required to recover approximately 90 percent of its FY 2008 budget authority, less the amounts appropriated from the NWF, amounts appropriated for WIR, and amounts appropriated for generic homeland security activities through fees. To comply with this statutory requirement and in accordance with 10 CFR 171.13, the NRC is publishing the amount of the FY 2008 annual fees for reactor licensees, fuel cycle licensees, materials licensees, and holders of Certificates of Compliance, registrations of sealed source and devices, and Government agencies. OBRA-90, consistent with the accompanying Conference Committee Report, and the amendments to OBRA-90, provides that—

(1) The annual fees be based on approximately 90 percent of the Commission's FY 2008 budget of $926.1 million less the funds directly appropriated from the NWF to cover the NRC's high-level waste program and for WIR, generic homeland security activities, and less the amount of funds collected from part 170 fees;

(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). Further, the NRC's FY 1991 annual fee rule methodology was upheld by the D.C. Circuit Court of Appeals in

Allied Signal

v.

NRC

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

VIII. Regulatory Flexibility Analysis

The NRC is required by the OBRA-90, as amended, to recover approximately 90 percent of its FY 2008 budget authority through the assessment of user fees. This Act further requires that the NRC establish a schedule of charges that fairly and equitably allocates the aggregate amount of these charges among licensees.

This final rule establishes the schedules of fees that are necessary to implement the Congressional mandate for FY 2008. This rule would result in increases in the annual fees charged to certain licensees and holders of certificates, registrations, and approvals, and decreases in annual fees for others. Licensees affected by the annual fee decreases include those that qualify as a small entity under NRC's size standards in 10 CFR 2.810. The Regulatory Flexibility Analysis, prepared in accordance with 5 U.S.C. 604, is included as Appendix A to this final rule.

The Congressional Review Act of 1996 requires all Federal agencies to prepare a written compliance guide for each rule for which the agency is required by 5 U.S.C. 604 to prepare a regulatory flexibility analysis. Therefore, in compliance with the law, Attachment 1 to the Regulatory Flexibility Analysis is the small entity compliance guide for FY 2008.

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 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. Congressional Review Act

In accordance with the Congressional Review Act of 1996, 5 U.S.C. 801-808, the NRC has determined that this action is a major rule and has verified the determination with the Office of Information and Regulatory Affairs of the Office of Management and Budget.

List of Subjects

10 CFR Part 170

Byproduct material, Import and export licenses, Intergovernmental relations, Non-payment penalties, nuclear materials, nuclear power plants and reactors, source material, special nuclear material.

10 CFR Part 171

Annual charges, byproduct material, holders of certificates, registrations, approvals, intergovernmental relations, non-payment penalties, nuclear materials, nuclear power plants and reactors, source material, special nuclear material.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 553, the NRC is adopting the following amendments to 10 CFR parts 170 and 171.

PART 170—FEES FOR FACILITIES, MATERIALS, IMPORT AND EXPORT LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT OF 1954, AS AMENDED

1. The authority citation for part 170 continues to read as follows:

Authority:

Sec. 9701, Pub. L. 97-258, 96 Stat. 1051 (31 U.S.C. 9701); sec. 301, Pub. L. 92-314, 86 Stat. 227 (42 U.S.C. 2201w); sec. 201, Pub. L. 93-438, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 205a, Pub. L. 101-576, 104 Stat. 2842, as amended (31 U.S. C. 901, 902); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); sec. 623, Pub. L. 109-58, 119 Stat. 783 (42 U.S.C. 2201(w)); sec. 651(e), Pub. L. 109-58, 119 Stat. 806-810 (42 U.S.C. 2014, 2021, 2021b, 2111).

2. Section 170.20 is revised to read as follows:

§ 170.20

Average cost per professional staff-hour.

Fees for permits, licenses, amendments, renewals, special projects, 10 CFR part 55 re-qualification and replacement examinations and tests, other required reviews, approvals, and inspections under §§ 170.21 and 170.31 will be calculated using the professional staff-hour rate of $238 per hour.

3. In § 170.21, in the table, fee category K is revised to read as follows:

§ 170.21

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

Schedule of Facility Fees

[See footnotes at end of table]

Facility categories and type of fees

Fees

1, 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 under 10 CFR part 110:

1. Application for import or export of production and utilization facilities

4

(including reactors and other facilities) and exports of components requiring Commission and Executive Branch review, for example, actions under 10 CFR 110.40(b).

Application—new license, or amendment; or license exemption request

$15,500

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, or amendment; or license exemption request

9,100

3. Application for export of components requiring the assistance of the Executive Branch to obtain foreign government assurances.

Application—new license, or amendment; or license exemption request

3,800

4. Application for export of facility components and equipment (examples provided in 10 CFR part 110, Appendix A, Items (5) through (9)) not requiring Commission or Executive Branch review, or obtaining foreign government assurances.

Application—new license, or amendment; or license exemption request

2,400

5. Minor amendment of any active export or import license, for example, to extend the expiration date, change domestic information, or make other revisions which do not involve any substantive changes to license terms or conditions or to the type of facility or component authorized for export and therefore, do not require in-depth analysis or review or consultation with the Executive Branch, U.S. host state, or foreign government authorities.

Minor amendment to license

720

1

Fees will not be charged for orders related to civil penalties or other civil sanctions issued by the Commission under § 2.202 of this chapter or for amendments resulting specifically from the requirements of these orders. For orders unrelated to civil penalties or other civil sanctions, fees will be charged for any resulting licensee-specific activities not otherwise exempted from fees under this chapter. Fees will be charged for approvals issued under a specific exemption provision of the Commission's regulations under Title 10 of the Code of Federal Regulations (e.g., 10 CFR 50.12, 73.5) and any other sections in effect now or in the future, regardless of whether the approval is in the form of a license amendment, letter of approval, safety evaluation report, or other form.

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 § 170.20, as appropriate, except for topical reports whose costs exceed $50,000. Costs which exceed $50,000 for any topical report, amendment, revision or supplement to a topical report completed or under review from January 30, 1989, through August 8, 1991, will not be billed to the applicant. Any professional hours expended on or after August 9, 1991, will be assessed at the applicable rate established in § 170.20.

*         *         *         *         *         *         *

4

Imports only of major components for end-use at NRC-licensed reactors are now authorized under NRC general import license.

4. In § 170.31, the table is revised to read as follows:

§ 170.31

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

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

(a) Strategic Special Nuclear Material (High Enriched Uranium) [Program Code(s): 21130]

Full Cost.

(b) Low Enriched Uranium in Dispersible Form Used for Fabrication of Power Reactor Fuel [Program Code(s): 21210]

Full Cost.

(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 [Program Code(s): 21310, 21320]

Full Cost.

(b) Gas centrifuge enrichment demonstration facilities

Full Cost.

(c) Others, including hot cell facilities

Full Cost.

B. Licenses for receipt and storage of spent fuel and reactor-related Greater than Class C (GTCC) waste at an independent spent fuel storage installation (ISFSI) [Program Code(s): 23200]

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 [Program Code(s): 22140]

$1,100.

D. All other special nuclear material licenses, except licenses authorizing special nuclear material in unsealed form in a combination that would constitute a critical quantity, as defined in § 150.11 of this chapter, for which the licensee shall pay the same fees as those under Category 1.A

4

Application [Program Code(s): 22110, 22111, 22120, 22131, 22136, 22150, 22151, 22161, 22163, 22170, 23100, 23300, 23310]

2,200.

E. Licenses or certificates for construction and operation of a uranium enrichment facility [Program Code(s): 21200]

Full Cost.

2. Source material:

A. (1) Licenses for possession and use of source material for refining uranium mill concentrates to uranium hexafluoride [Program Code(s): 11400]

Full Cost.

(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.

(a) Class I facilities [Program Code(s): 11100]

Full Cost.

(b) Class II facilities [Program Code(s): 11500]

Full Cost.

(c) Other facilities [Program Code(s): 11700]

Full Cost.

(3) Licenses that authorize the receipt of byproduct material, as defined in § 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) [Program Code(s): 11600]

Full Cost.

(4) Licenses that authorize the receipt of byproduct material, as defined in § 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).

Full Cost.

(5) Licenses that authorize the possession of source material related to removal of contaminants (source material) from drinking water.

Full Cost.

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

Application [Program Code(s): 11210]

260.

C. All other source material licenses.

Application [Program Code(s): 11200, 11220, 11221, 11230, 11300, 11800, 11810]

9,400.

3. Byproduct material:

A. Licenses of broad scope for the possession and use of byproduct material issued under parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution.

Application [Program Code(s): 03211, 03212, 03213]

11,200.

B. Other licenses for possession and use of byproduct material issued under part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution.

Application [Program Code(s): 03214, 03215, 22135, 22162]

4,200.

C. Licenses issued under §§ 32.72 and/or 32.74 of this chapter that authorize the processing or manufacturing and distribution or redistribution of radiopharmaceuticals, generators, reagent kits, and/or sources and devices containing byproduct material. This category does not apply to licenses issued to nonprofit educational institutions whose processing or manufacturing is exempt under § 170.11(a)(4). These licenses are covered by fee Category 3.D.

Application [Program Code(s): 02500, 02511, 02513]

7,400.

D. Licenses and approvals issued under §§ 32.72 and/or 32.74 of this chapter authorizing distribution or redistribution of radiopharmaceuticals, generators, reagent kits, and/or sources or devices not involving processing of byproduct material. This category includes licenses issued under §§ 32.72 and/or 32.74 of this chapter to nonprofit educational institutions whose processing or manufacturing is exempt under § 170.11(a)(4).

Application [Program Code(s): 02512, 02514]

4,100.

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 [Program Code(s): 03510, 03520]

2,700.

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 [Program Code(s): 03511]

5,600.

G. Licenses for possession and use of 10,000 curies or more of byproduct material in sealed sources for irradiation of materials in which the source is exposed for irradiation purposes. This category also includes underwater irradiators for irradiation of materials where the source is not exposed for irradiation purposes.

Application [Program Code(s): 03521]

13,300.

H. Licenses issued under Subpart A of part 32 of this chapter to distribute items containing byproduct material that require device review to persons exempt from the licensing requirements of part 30 of this chapter. The category does not include specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of part 30 of this chapter.

Application [Program Code(s): 03255]

9,700.

I. Licenses issued under Subpart A of part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require device evaluation to persons exempt from the licensing requirements of part 30 of this chapter. This category does not include specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of part 30 of this chapter.

Application [Program Code(s): 03250, 03251, 03252, 03253, 03254, 03256]

9,700.

J. Licenses issued under Subpart B of part 32 of this chapter to distribute items containing byproduct material that require sealed source and/or device review to persons generally licensed under part 31 of this chapter. This category does not include specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under part 31 of this chapter.

Application [Program Code(s): 03240, 03241, 03243]

1,700.

K. Licenses issued under Subpart B of part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require sealed source and/or device review to persons generally licensed under part 31 of this chapter. This category does not include specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under part 31 of this chapter.

Application [Program Code(s): 03242, 03244]

1,000.

L. Licenses of broad scope for possession and use of byproduct material issued under parts 30 and 33 of this chapter for research and development that do not authorize commercial distribution.

Application [Program Code(s): 01100, 01110, 01120, 03610, 03611, 03612, 03613]

9,400.

M. Other licenses for possession and use of byproduct material issued under part 30 of this chapter for research and development that do not authorize commercial distribution.

Application [Program Code(s): 03620]

3,300.

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 4.A., 4.B., and 4.C

Application [Program Code(s): 03219, 03225, 03226]

6,100.

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

Application [Program Code(s): 03310, 03320]

4,500.

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

Application [Program Code(s): 02400, 02410, 03120, 03121, 03122, 03123, 03124, 03220, 03221, 03222, 03800, 03810, 22130]

1,300.

Q. Registration of a device(s) generally licensed under part 31 of this chapter.

Registration

270.

R. Possession of items or products containing radium-226 identified in 10 CFR 31.12 which exceed the number of items or limits specified in that section.

6

1. Possession of quantities exceeding the number of items or limits in 10 CFR 31.12(a)(4) or (5) but less than or equal to 10 times the number of items or limits specified.

Application [Program Code(s): 02700]

550.

2. Possession of quantities exceeding 10 times the number of items or limits specified in 10 CFR 31.12(a)(4) or (5).C.

Application [Program Code(s): 02710]

1,300.

S. Licenses for production of accelerator-produced radionuclides.

Application [Program Code(s): 03210]

7,400.

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 [Program Code(s): 03231, 03233, 03235, 03236, 06100, 06101]

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 [Program Code(s): 03234]

2,900.

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 [Program Code(s): 03232]

4,300.

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 [Program Code(s): 03110, 03111, 03112]

1,600.

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

Licensing [Program Code(s): 03113]

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 [Program Code(s): 03218]

19,000.

7. Medical licenses:

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

Application [Program Code(s): 02300, 02310]

10,400.

B. Licenses of broad scope issued to medical institutions or two or more physicians under parts 30, 33, 35, 40, and 70 of this chapter authorizing research and development, including human use of byproduct material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.

Application [Program Code(s): 02110]

7,400.

C. Other licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices.

Application [Program Code(s): 02120, 02121, 02200, 02201, 02210, 02220, 02230, 02231, 02240, 22160]

2,300.

8. Civil defense:

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

Application [Program Code(s): 03710]

550.

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

19,500.

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

19,500.

C. Safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, except reactor fuel, for commercial distribution.

Application—each source

2,700.

D. Safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, manufactured in accordance with the unique specifications of, and for use by, a single applicant, except reactor fuel.

Application—each source

910.

10. Transportation of radioactive material:

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

1. Spent Fuel, High-Level Waste, and plutonium air packages

Full Cost.

2. Other Casks

Full Cost.

B. Quality assurance program approvals issued under part 71 of this chapter.

1. Users and Fabricators.

Application

4,400.

Inspections

Full Cost.

2. Users.

Application

4,400.

Inspections

Full Cost.

C. Evaluation of security plans, route approvals, route surveys, and transportation security devices (including immobilization devices).

Full Cost.

11. Review of standardized spent fuel facilities

Full Cost.

12. Special projects:

Including approvals, preapplication/licensing activities, and inspections

Full Cost.

13. A. Spent fuel storage cask Certificate of Compliance

Full Cost.

B. Inspections related to storage of spent fuel under § 72.210 of this chapter

Full Cost.

14. A. Byproduct, source, or special nuclear material licenses and other approvals authorizing decommissioning, decontamination, reclamation, or site restoration activities under parts 30, 40, 70, 72, and 76 of this chapter

Full Cost.

B. Site-specific decommissioning activities associated with unlicensed sites, regardless of whether or not the sites have been previously licensed

Full Cost.

15. Import and Export licenses:

Licenses issued under part 110 of this chapter for the import and export only of special nuclear material, source material, tritium and other byproduct material, and the export only of heavy water, or nuclear grade graphite (fee categories 15.A. through 15.E.).

A. Application for export or import of nuclear materials, including radioactive waste requiring Commission and Executive Branch review, for example, those actions under 10 CFR 110.40(b).

Application—new license, or amendment; or license exemption request

15,500.

B. Application for export or import of nuclear material, including radioactive waste, requiring Executive Branch review, but not Commission review. This category includes applications for the export and import of radioactive waste and requires NRC to consult with domestic host state authorities, Low-Level Radioactive Waste Compact Commission, the U.S. Environmental Protection Agency, etc.

Application—new license, or amendment; or license exemption request

9,100.

C. Application for export of nuclear material, for example, routine reloads of low enriched uranium reactor fuel and/or natural uranium source material requiring the assistance of the Executive Branch to obtain foreign government assurances.

Application—new license, or amendment; or license exemption request

3,800.

D. Application for export or import of nuclear material, including radioactive waste, not requiring Commission or Executive Branch review, or obtaining foreign government assurances. This category includes applications 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 located in the same country, 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, or amendment; or license exemption request

2,400.

E. Minor amendment of any active export or import license, for example, to extend the expiration date, change domestic information, or make other revisions which do not involve any substantive changes to license terms and conditions or to the type/quantity/chemical composition of the material authorized for export and therefore, do not require in-depth analysis, review, or consultations with other Executive Branch, U.S. host state, or foreign government authorities.

Minor amendment

720.

Licenses issued under part 110 of this chapter for the import and export only of Category 1 and Category 2 quantities of radioactive material listed in Appendix P to part 110 of this chapter (fee categories 15.F. through 15.R.)

5

Category 1 Exports:

F. Application for export of Category 1 materials involving an exceptional circumstances review under 10 CFR 110.42(e)(4).

Application—new license, or amendment; or license exemption request

15,500.

G. Application for export of Category 1 materials requiring Executive Branch review, Commission review, and/or government-to-government consent.

Application—new license, or amendment; or license exemption request

9,100.

H. Application for export of Category 1 materials requiring Commission review and government-to-government consent.

Application—new license, or amendment; or license exemption request

5,700.

I. Application for export of Category 1 material requiring government-to-government consent

Application—new license, or amendment; or license exemption request

4,800.

Category 2 Exports:

J. Application for export of Category 2 materials involving an exceptional circumstances review under 10 CFR 110.42(e)(4).

Application—new license, or amendment; or license exemption request

15,500.

K. Applications for export of Category 2 materials requiring Executive Branch review and/or Commission review.

Application—new license, or amendment; or license exemption request

9,100.

L. Application for the export of Category 2 materials.

Application—new license, or amendment; or license exemption request

4,300.

Category 1 Imports:

M. Application for the import of Category 1 material requiring Commission review.

Application—new license, or amendment; or license exemption request

4,500.

N. Application for the import of Category 1 material.

Application—new license, or amendment; or license exemption request

3,800.

Category 2 Imports:

O. Application for the import of Category 2 material.

Application—new license, or amendment; or license exemption request

3,300.

Category 1 Imports With Agent and Multiple Licensees:

P. Application for the import of Category 1 material with agent and multiple licensees requiring Commission review.

Application—new license, or amendment; or license exemption request

5,200.

Q. Application for the import of Category 1 material with agent and multiple licensees.

Application—new license, or amendment; or license exemption request

4,300.

Minor Amendments (Category 1 and 2 Export and Imports):

R. Minor amendment of any active export or import license, for example, to extend the expiration date, change domestic information, or make other revisions which do not involve any substantive changes to license terms and conditions or to the type/quantity/chemical composition of the material authorized for export and therefore, do not require in-depth analysis, review, or consultations with other Executive Branch, U.S. host state, or foreign authorities.

Minor amendment

720.

16. Reciprocity:

Agreement State licensees who conduct activities under the reciprocity provisions of 10 CFR 150.20.

Application

1,400.

17. Master materials licenses of broad scope issued to Government agencies:

Application

22,000.

18. Department of Energy

A. Certificates of Compliance. Evaluation of casks, packages, and shipping containers (including spent fuel, high-level waste, and other casks, and plutonium air packages)

Full Cost.

B. Uranium Mill Tailings Radiation Control Act (UMTRCA) activities

Full Cost.

1

Types of fees

—Separate charges, as shown in the schedule, will be assessed for pre-application consultations and reviews; applications for new licenses, approvals, or license terminations; possession only licenses; issuance of new licenses and approvals; certain amendments and renewals to existing licenses and approvals; safety evaluations of sealed sources and devices; generally licensed device registrations; and certain inspections. The following guidelines apply to these charges:

(a)

Application and registration fees.

Applications for new materials licenses and export and import licenses; applications to reinstate expired, terminated, or inactive licenses except those subject to fees assessed at full costs; applications filed by Agreement State licensees to register under the general license provisions of 10 CFR 150.20; and applications for amendments to materials licenses that would place the license in a higher fee category or add a new fee category must be accompanied by the prescribed application fee for each category.

(1) Applications for licenses covering more than one fee category of special nuclear material or source material must be accompanied by the prescribed application fee for the highest fee category.

(2) Applications for new licenses that cover both byproduct material and special nuclear material in sealed sources for use in gauging devices will pay the appropriate application fee for fee Category 1.C. only.

(b)

Licensing fees

. Fees for reviews of applications for new licenses and for renewals and amendments to existing licenses, pre-application consultations and reviews of other documents submitted to NRC for review, and project manager time for fee categories subject to full cost fees, are due upon notification by the Commission in accordance with § 170.12(b).

(c)

Amendment fees

. Applications for amendments to export and import licenses must be accompanied by the prescribed amendment fee for each license affected. An application for an amendment to an export or import license or approval classified in more than one fee category must be accompanied by the prescribed amendment fee for the category affected by the amendment unless the amendment is applicable to two or more fee categories, in which case the amendment fee for the highest fee category would apply.

(d)

Inspection fees

. Inspections resulting from investigations conducted by the Office of Investigations and non-routine inspections that result from third-party allegations are not subject to fees. Inspection fees are due upon notification by the Commission in accordance with § 170.12(c).

(e)

Generally licensed device registrations under 10 CFR 31.5

. Submittals of registration information must be accompanied by the prescribed fee.

2

Fees will not be charged for orders related to civil penalties or other civil sanctions issued by the Commission under 10 CFR 2.202 or for amendments resulting specifically from the requirements of these orders. For orders unrelated to civil penalties or other civil sanctions, fees will be charged for any resulting licensee-specific activities not otherwise exempted from fees under this chapter. Fees will be charged for approvals issued under a specific exemption provision of the Commission's regulations under Title 10 of the Code of Federal Regulations (e.g., 10 CFR 30.11, 40.14, 70.14, 73.5, and any other sections in effect now or in the future), regardless of whether the approval is in the form of a license amendment, letter of approval, safety evaluation report, or other form. In addition to the fee shown, an applicant may be assessed an additional fee for sealed source and device evaluations as shown in Categories 9.A. through 9.D.

3

Full cost fees will be determined based on the professional staff time multiplied by the appropriate professional hourly rate established in § 170.20 in effect at the time the service is provided, and the appropriate contractual support services expended. For applications currently on file for which review costs have reached an applicable fee ceiling established by the June 20, 1984, and July 2, 1990, rules, but are still pending completion of the review, the cost incurred after any applicable ceiling was reached through January 29, 1989, will not be billed to the applicant. Any professional staff-hours expended above those ceilings on or after January 30, 1989, will be assessed at the applicable rates established by § 170.20, as appropriate, except for topical reports whose costs exceed $50,000. Costs which exceed $50,000 for each topical report, amendment, revision, or supplement to a topical report completed or under review from January 30, 1989, through August 8, 1991, will not be billed to the applicant. Any professional hours expended on or after August 9, 1991, will be assessed at the applicable rate established in § 170.20.

4

Licensees paying fees under Categories 1.A., 1.B., and 1.E. are not subject to fees under Categories 1.C. and 1.D. for sealed sources authorized in the same license except for an application that deals only with the sealed sources authorized by the license.

5

For a combined import and export license application for material listed in Appendix P to part 110 of this chapter, only the higher of the two applicable fee amounts must be paid.

6

Persons who possess radium sources that are used for operational purposes in another fee category are not also subject to the fees in this category. (This exception does not apply if the radium sources are possessed for storage only.)

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

5. The authority citation for part 171 continues to read as follows:

Authority:

Sec. 7601, Pub. L. 99-272, 100 Stat. 146, as amended by sec. 5601, Pub. L. 100-203, 101 Stat. 1330 as amended by sec. 3201, Pub. L. 101-239, 103 Stat. 2132, as amended by sec. 6101, Pub. L. 101-508, 104 Stat. 1388, as amended by sec. 2903a, Pub. L. 102-486, 106 Stat. 3125 (42 U.S.C. 2213, 2214), and as amended by Title IV, Pub. L. 109-103, 119 Stat. 2283 (42 U.S.C. 2214); sec. 301, Pub. L. 92-314, 86 Stat. 227 (42 U.S.C. 2201w); sec. 201, Pub. L. 93-438, 88 Stat. 1242, as amended (42 U.S.C. 5841); sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); sec. 651(e), Pub. L. 109-58, 119 Stat. 806-810 (42 U.S.C. 2014, 2021, 2021b, 2111).

6. In § 171.15, paragraph (b)(1), the introductory text of paragraph (b)(2), paragraph (c)(1), the introductory text of paragraphs (c)(2) and (d)(1), and paragraphs (d)(2), (d)(3), and (e), are revised to read as follows:

§ 171.15

Annual fees: Reactor licenses and independent spent fuel storage licenses.

(b)(1) The FY 2008 annual fee for each operating power reactor which must be collected by September 30, 2008, is $4,032,000.

(2) The FY 2008 annual fee is comprised of a base annual fee for power reactors licensed to operate, a base spent fuel storage/reactor decommissioning annual fee, and associated additional charges (surcharges). The activities comprising the FY 2008 spent storage/reactor decommissioning base annual fee are shown in paragraphs (c)(2)(i) and (ii) of this section. The activities comprising the FY 2008 surcharge are shown in paragraph (d)(1) of this section. The activities comprising the FY 2008 base annual fee for operating power reactors are as follows:

(c)(1) The FY 2008 annual fee for each power reactor holding a 10 CFR part 50 license that is in a decommissioning or possession only status and has spent fuel onsite, and each independent spent fuel storage 10 CFR part 72 licensee who does not hold a 10 CFR part 50 license is $135,000.

(2) The FY 2008 annual fee is comprised of a base spent fuel storage/reactor decommissioning annual fee (which is also included in the operating power reactor annual fee shown in paragraph (b) of this section), and an additional charge (surcharge). The activities comprising the FY 2008 surcharge are shown in paragraph (d)(1) of this section. The activities comprising the FY 2008 spent fuel storage/reactor decommissioning rebaselined annual fee are:

(d)(1) The surcharge allocated to annual fees includes the budgeted resources for the activities listed in paragraph (d)(1)(i) of this section, plus the total budgeted resources for the activities included in paragraphs (d)(1)(ii) and (d)(1)(iii) of this section as reduced by the appropriations NRC receives for these types of activities. If the NRC's appropriations for these types of activities are greater than the budgeted resources for the activities included in paragraphs (d)(1)(ii) and (d)(1)(iii) of this section for a given FY, a negative surcharge (or annual fee reduction) will be allocated to annual fees. The activities comprising the FY 2008 surcharge are as follows:

(2) The total FY 2008 surcharge allocated to the operating power reactor class of licenses is −$5.9 million, not including the amount allocated to the spent fuel storage/reactor decommissioning class. The FY 2008 operating power reactor surcharge to be assessed to each operating power reactor is approximately −$57,000. This amount is calculated by dividing the total operating power reactor surcharge (−$5.9 million) by the number of operating power reactors (104).

(3) The FY 2008 surcharge allocated to the spent fuel storage/reactor decommissioning class of licenses is −$258,000. The FY 2008 spent fuel storage/reactor decommissioning surcharge to be assessed to each operating power reactor, each power reactor in decommissioning or possession only status that has spent fuel onsite, and to each independent spent fuel storage 10 CFR part 72 licensee who does not hold a 10 CFR part 50 license is approximately −$2,097. This amount is calculated by dividing the total surcharge costs allocated to this class by the total number of power reactor licenses, except those that permanently ceased operations and have no fuel onsite, and 10 CFR part 72 licensees who do not hold a 10 CFR part 50 license.

(e) The FY 2008 annual fees for licensees authorized to operate a test and research (non-power) reactor licensed under part 50 of this chapter, unless the reactor is exempted from fees under § 171.11(a), are as follows:

Research reactor

$76,500

Test reactor

76,500

7. In § 171.16, paragraphs (c), (d), and the introductory text of paragraph (e) are revised to read as follows:

§ 171.16

Annual fees: Materials licensees, holders of certificates of compliance, holders of sealed source and device registrations, holders of quality assurance program approvals, and government agencies licensed by the NRC.

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

Maximum

annual fee per

licensed

category

Small Businesses Not Engaged in Manufacturing (Average gross receipts over last 3 completed fiscal years):

$350,000 to $6.5 million

$2,300

Less than $350,000

500

Small Not-For-Profit Organizations (Annual Gross Receipts):

$350,000 to $6.5 million

2,300

Less than $350,000

500

Manufacturing entities that have an average of 500 employees or fewer:

35 to 500 employees

2,300

Fewer than 35 employees

500

Small Governmental Jurisdictions (Including publicly supported educational institutions) (Population):

20,000 to 50,000

2,300

Fewer than 20,000

500

Educational Institutions that are not State or Publicly Supported, and have 500 Employees or Fewer:

35 to 500 employees

2,300

Fewer than 35 employees

500

(d) The FY 2008 annual fees are comprised of a base annual fee and an additional charge (surcharge). The activities comprising the FY 2008 surcharge are shown for convenience in paragraph (e) of this section. The FY 2008 annual fees for materials licensees and holders of certificates, registrations or approvals subject to fees under this section are shown in the following table:

Schedule of Materials Annual Fees and Fees for Government Agencies Licensed by NRC

[See footnotes at end of table]

Category of materials licenses

Annual fees

1, 2, 3

1. Special nuclear material:

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

(a) Strategic Special Nuclear Material (High Enriched Uranium) [Program Code(s): 21130]

$3,007,000

(b) Low Enriched Uranium in Dispersible Form Used for Fabrication of Power Reactor Fuel [Program Code(s): 21210]

899,000

(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 [Program Code(s): 21310, 21320]

341,000

(b) Gas centrifuge enrichment demonstration facilities

558,000

(c) Others, including hot cell facilities

248,000

B. Licenses for receipt and storage of spent fuel and reactor-related Greater than Class C (GTCC) waste at an independent spent fuel storage installation (ISFSI) [Program Code(s): 23200]

N/A

11

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 [Program Code(s): 22140]

1,600

D. All other special nuclear material licenses, except licenses authorizing special nuclear material in unsealed form in combination that would constitute a critical quantity, as defined in § 150.11 of this chapter, for which the licensee shall pay the same fees as those for Category 1.A.(2) [Program Code(s): 22110, 22111, 22120, 22131, 22136, 22150, 22151, 22161, 22163, 22170, 23100, 23300, 23310]

4,500

E. Licenses or certificates for the operation of a uranium enrichment facility [Program Code(s): 21200]

1,705,000

2. Source material:

A. (1) Licenses for possession and use of source material for refining uranium mill concentrates to uranium hexafluoride [Program Code(s): 11400]

589,000

(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.

(a) Class I facilities

4

[Program Code(s): 11100]

10,300

(b) Class II facilities

4

[Program Code(s): 11500]

10,300

(c) Other facilities

4

[Program Code(s): 11700]

N/A

5

(3) Licenses that authorize the receipt of byproduct material, as defined in § 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) [Program Code(s): 11600]

N/A

5

(4) Licenses that authorize the receipt of byproduct material, as defined in § 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)

10,300

(5) Licenses that authorize the possession of source material related to removal of contaminants (source material) from drinking water

6,200

B. Licenses that authorize only the possession, use and/or installation of source material for shielding [Program Code(s): 11210]

590

C. All other source material licenses [Program Code(s): 11200, 11220, 11221, 11230, 11300, 11800, 11810]

10,200

3. Byproduct material:

A. Licenses of broad scope for possession and use of byproduct material issued under parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution [Program Code(s): 03211, 03212, 03213]

22,900

B. Other licenses for possession and use of byproduct material issued under part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution [Program Code(s): 03214, 03215, 22135, 22162]

6,500

C. Licenses issued under §§ 32.72 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 under part 40 of this chapter when included on the same license. This category does not apply to licenses issued to nonprofit educational institutions whose processing or manufacturing is exempt under § 171.11(a)(1). These licenses are covered by fee under Category 3.D. [Program Code(s): 02500, 02511, 02513]

9,200

D. Licenses and approvals issued under §§ 32.72 and/or 32.74 of this chapter authorizing distribution or redistribution of radiopharmaceuticals, generators, reagent kits and/or sources or devices not involving processing of byproduct material. This category includes licenses issued under §§ 32.72 and 32.74 of this chapter to nonprofit educational institutions whose processing or manufacturing is exempt under § 171.11(a)(1). This category also includes the possession and use of source material for shielding authorized under part 40 of this chapter when included on the same license [Program Code(s): 02512, 02514]

5,200

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) [Program Code(s): 03510, 03520]

3,100

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 [Program Code(s): 03511]

6,100

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 [Program Code(s): 03521]

24,400

H. Licenses issued under Subpart A of part 32 of this chapter to distribute items containing byproduct material that require device review to persons exempt from the licensing requirements of part 30 of this chapter, 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 [Program Code(s): 03255]

8,700

I. Licenses issued under Subpart A of part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require device evaluation to persons exempt from the licensing requirements of part 30 of this chapter, 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 [Program Code(s): 03250, 03251, 03252, 03253, 03254, 03256]

8,100

J. Licenses issued under Subpart B of part 32 of this chapter to distribute items containing byproduct material that require sealed source and/or device review to persons generally licensed under part 31 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under part 31 of this chapter [Program Code(s): 03240, 03241, 03243]

1,900

K. Licenses issued under Subpart B of part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require sealed source and/or device review to persons generally licensed under part 31 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under part 31 of this chapter [Program Code(s): 03242, 03244]

1,500

L. Licenses of broad scope for possession and use of byproduct material issued under parts 30 and 33 of this chapter for research and development that do not authorize commercial distribution [Program Code(s): 01100, 01110, 01120, 03610, 03611, 03612, 03613]

11,600

M. Other licenses for possession and use of byproduct material issued under part 30 of this chapter for research and development that do not authorize commercial distribution [Program Code(s): 03620]

4,200

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 3.P.; and (2) Licenses that authorize waste disposal services are subject to the fees specified in fee categories 4.A., 4.B., and 4.C. [Program Code(s): 03219, 03225, 03226]

6,500

O. Licenses for possession and use of byproduct material issued under part 34 of this chapter for industrial radiography operations. This category also includes the possession and use of source material for shielding authorized under part 40 of this chapter when authorized on the same license [Program Code(s): 03310, 03320]

11,100

P. All other specific byproduct material licenses, except those in Categories 4.A. through 9.D. [Program Code(s): 02400, 02410, 03120, 03121, 03122, 03123, 03124, 03220, 03221, 03222, 03800, 03810, 22130]

2,100

Q. Registration of devices generally licensed under part 31 of this chapter

N/A

13

R. Possession of items or products containing radium-226 identified in 10 CFR 31.12 which exceed the number of items or limits specified in that section:

14

1. Possession of quantities exceeding the number of items or limits in 10 CFR 31.12(a)(4), or (5) but less than or equal to 10 times the number of items or limits specified [Program Code(s): 02700]

1,700

2. Possession of quantities exceeding 10 times the number of items or limits specified in 10 CFR 31.12(a)(4), or (5) [Program Code(s): 02710]

2,100

S. Licenses for production of accelerator-produced radionuclides [Program Code(s): 03210]

8,400

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 [Program Code(s): 03231, 03233, 03235, 03236, 06100, 06101]

N/A

5

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 [Program Code(s): 03234]

9,300

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 [Program Code(s): 03232]

7,200

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 [Program Code(s): 03110, 03111, 03112]

3,400

B. Licenses for possession and use of byproduct material for field flooding tracer studies [Program Code(s): 03113]

N/A

5

6. Nuclear laundries:

A. Licenses for commercial collection and laundry of items contaminated with byproduct material, source material, or special nuclear material [Program Code(s): 03218]

20,600

7. Medical licenses:

A. Licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license [Program Code(s): 02300, 02310

10,500

B. Licenses of broad scope issued to medical institutions or two or more physicians under parts 30, 33, 35, 40, and 70 of this chapter authorizing research and development, including human use of byproduct material except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.

9

[Program Code(s): 02110]

22,900

C. Other licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.

9

[Program Code(s): 02120, 02121, 02200, 02201, 02210, 02220, 02230, 02231, 02240, 22160]

3,900

8. Civil defense:

A. Licenses for possession and use of byproduct material, source material, or special nuclear material for civil defense activities [Program Code(s): 03710]

1,700

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

14,700

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

14,700

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

2,000

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

700

10. Transportation of radioactive material:

A. Certificates of Compliance or other package approvals issued for design of casks, packages, and shipping containers.

1. Spent Fuel, High-Level Waste, and plutonium air packages

N/A

6

2. Other Casks

N/A

6

B. Quality assurance program approvals issued under part 71 of this chapter.

1. Users and Fabricators

N/A

6

2. Users

N/A

6

C. Evaluation of security plans, route approvals, route surveys, and transportation security devices (including immobilization devices)

N/A

6

11. Standardized spent fuel facilities

N/A

6

12. Special Projects

N/A

6

13. A. Spent fuel storage cask Certificate of Compliance

N/A

6

B. General licenses for storage of spent fuel under 10 CFR 72.210

N/A

12

14. Decommissioning/Reclamation:

A. Byproduct, source, or special nuclear material licenses and other approvals authorizing decommissioning, decontamination, reclamation, or site restoration activities under parts 30, 40, 70, 72, and 76 of this chapter

N/A

7

B. Site-specific decommissioning activities associated with unlicensed sites, whether or not the sites have been previously licensed

N/A

7

15. Import and Export licenses

N/A

8

16. Reciprocity

N/A

8

17. Master materials licenses of broad scope issued to Government agencies

225,000

18. Department of Energy:

A. Certificates of Compliance

719,000

10

B. Uranium Mill Tailings Radiation Control Act (UMTRCA) activities

398,000

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 current FY. 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 before October 1, 2007, and permanently ceased licensed activities entirely before this date. Annual fees for licensees who filed for termination of a license, downgrade of a license, or for a possession only license during the FY and for new licenses issued during the FY will be prorated in accordance with the provisions of § 171.17. If a person holds more than one license, certificate, registration, or approval, the annual fee(s) will be assessed for each license, certificate, registration, or approval held by that person. For licenses that authorize more than one activity on a single license (e.g., human use and irradiator activities), annual fees will be assessed for each category applicable to the license. Licensees paying annual fees under Category 1.A.(1) are not subject to the annual fees for Categories 1.C. and 1.D. for sealed sources authorized in the license.

2

Payment of the prescribed annual fee does not automatically renew the license, certificate, registration, or approval for which the fee is paid. Renewal applications must be filed in accordance with the requirements of parts 30, 40, 70, 71, 72, or 76 of this chapter.

3

Each FY, fees for these materials licenses will be calculated and assessed in accordance with § 171.13 and will be published in the

Federal Register

for notice and comment.

4

A Class I license includes mill licenses issued for the extraction of uranium from uranium ore. A Class II license includes solution mining licenses (in-situ and heap leach) issued for the extraction of uranium from uranium ores including research and development licenses. An “other” license includes licenses for extraction of metals, heavy metals, and rare earths.

5

There are no existing NRC licenses in these fee categories. If NRC issues a license for these categories, the Commission will consider establishing an annual fee for this type of license.

6

Standardized spent fuel facilities, 10 CFR parts 71 and 72 Certificates of Compliance and related Quality Assurance program approvals, and special reviews, such as topical reports, are not assessed an annual fee because the generic costs of regulating these activities are primarily attributable to users of the designs, certificates, and topical reports.

7

Licensees in this category are not assessed an annual fee because they are charged an annual fee in other categories while they are licensed to operate.

8

No annual fee is charged because it is not practical to administer due to the relatively short life or temporary nature of the license.

9

Separate annual fees will not be assessed for pacemaker licenses issued to medical institutions that also hold nuclear medicine licenses under Categories 7.B. or 7.C.

10

This includes Certificates of Compliance issued to DOE that are not under the Nuclear Waste Fund.

11

See

§ 171.15(c).

12

See

§ 171.15(c).

13

No annual fee is charged for this category because the cost of the general license registration program applicable to licenses in this category will be recovered through 10 CFR part 170 fees.

14

Persons who possess radium sources that are used for operational purposes in another fee category are not also subject to the fees in this category. (This exception does not apply if the radium sources are possessed for storage only.)

(e) The surcharge allocated to annual fees includes the budgeted resources for the activities listed in paragraph (e)(1) of this section, plus the total budgeted resources for the activities included in paragraphs (e)(2) and (e)(3) of this section as reduced by the appropriations NRC receives for these types of activities. If the NRC's appropriations for these types of activities are greater than the budgeted resources for the activities included in paragraphs (e)(2) and (e)(3) of this section for a given FY, a negative surcharge (or annual fee reduction) will be allocated to annual fees. The activities comprising the FY 2008 surcharge are as follows:

Dated at Rockville, Maryland, this 16th day of May, 2008.

For the Nuclear Regulatory Commission.

J.E. Dyer,

Chief Financial Officer.

Note:

THIS APPENDIX WILL NOT APPEAR IN THE CODE OF FEDERAL REGULATIONS.

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

I. Background

The Regulatory Flexibility Act (RFA), as amended 5 U.S.C. 601

et. seq.

, requires that agencies consider the impact of their rulemakings on small entities and, consistent with applicable statutes, consider alternatives to minimize these impacts on the businesses, organizations, and government jurisdictions to which they apply.

The NRC has established standards for determining which NRC licensees qualify as small entities (10 CFR 2.810). These size standards were established based on the Small Business Administration's most common receipts-based size standards and include a size standard for business concerns that are manufacturing entities. The NRC uses the size standards to reduce the impact of annual fees on small entities by establishing a licensee's eligibility to qualify for a maximum small entity fee. The small entity fee categories in § 171.16(c) of this final rule are based on the NRC's size standards.

The NRC is required each year, under OBRA-90, as amended, to recover approximately 90 percent of its budget authority (less amounts appropriated from the NWF and for other activities specifically removed from the fee base), through fees to NRC licensees and applicants. In total, the NRC is required to bill approximately $760.7 million in fees for FY 2008.

OBRA-90 requires that the schedule of charges established by rulemaking should fairly and equitably allocate the total amount to be recovered from the NRC's licensees and be assessed under the principle that licensees who require the greatest expenditure of agency resources pay the greatest annual

charges. Since FY 1991, the NRC has complied with OBRA-90 by issuing a final rule that amends its fee regulations. These final rules have established the methodology used by the NRC in identifying and determining the fees to be assessed and collected in any given FY.

The Commission is rebaselining its part 171 annual fees in FY 2008. Rebaselining fees results in increased annual fees compared to FY 2007 for the power reactors and non-power reactors, and decreased annual fees for four classes of licenses (spent fuel storage/reactor decommissioning, fuel facilities, transportation, and materials users). Within the uranium recovery fee class, annual fees for the all the non DOE licensees decrease, while annual fee for the DOE increases slightly. There is no annual fee for the rare earth fee class because this NRC fee class will no longer exist in FY 2008. As discussed in Section III.B.2., “Agreement State Activities”, of this document, the only rare earth facility license transferred to the Commonwealth of Pennsylvania when it became an Agreement State.

The Congressional Review Act of 1996 provides Congress with the opportunity to review agency rules before they go into effect. Under this legislation, the NRC annual fee rule is considered a “major” rule and must be reviewed by Congress and the Comptroller General before the rule becomes effective.

The Small Business Regulatory Enforcement Fairness Act of 1996 requires that an agency prepare a guide to assist small entities in complying with each rule for which a final RFA is prepared. This analysis and the small entity compliance guide (Attachment 1) have been prepared for the FY 2008 fee rule as required by law.

II. Impact on Small Entities

The fee rule results in substantial fees being charged to those individuals, organizations, and companies licensed by the NRC, including those licensed under the NRC materials program. The comments received on previous proposed fee rules and the small entity certifications received in response to previous final fee rules indicate that NRC licensees qualifying as small entities under the NRC's size standards are primarily materials licensees. Therefore, this analysis will focus on the economic impact of the fees on materials licensees. In FY 2007, about 32 percent of these licensees (approximately 1,400 licensees) qualified as small entities.

The commenters on previous fee rulemakings consistently indicated that the following results would occur if the proposed annual fees were not modified:

1. Large firms would gain an unfair competit

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