Revision of Fee Schedules; Fee Recovery for Fiscal Year 2020

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is amending the licensing, inspection, special project, and annual fees charged to its applicants and licensees. These amendments are necessary to implement the Omnibus Budget Reconciliation Act of 1990, as amended (OBRA-90), which requires the NRC to recover approximately 90 percent of its annual budget through fees less certain amounts excluded from this fee-recovery requirement. To mitigate the financial impact and economic disruption caused by the COVID-19 Pandemic, the NRC has suspended billing of annual fees and fees for services for the 90-day period of April through June 2020. Deferred fees will be billed in July 2020.

DATES:

This final rule is effective on August 18, 2020.

ADDRESSES:

Please refer to Docket ID NRC-2017-0228 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking website: Go to https://www.regulations.gov and search for Docket ID NRC-2017-0228. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: Carol.Gallagher@nrc.gov. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this final rule.
• NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in this document. For the convenience of the reader, the ADAMS accession numbers and instructions about obtaining materials referenced in this document are provided in the “Availability of Documents” section of this document.

FOR FURTHER INFORMATION CONTACT:

Anthony Rossi, Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-7341; email: Anthony.Rossi@nrc.gov.

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Background; Statutory Authority

II. Petition for Rulemaking: (PRM-171-1; NRC-2019-0084)

III. Discussion

IV. Public Comment Analysis

V. Public Comments and NRC Responses

VI. Regulatory Flexibility Certification

VII. Regulatory Analysis

VIII. Backfitting and Issue Finality

IX. Plain Writing

X. National Environmental Policy Act

XI. Paperwork Reduction Act

XII. Congressional Review Act

XIII. Voluntary Consensus Standards

XIV. Availability of Guidance

XV. Availability of Documents

I. Background; Statutory Authority

The NRC's fee regulations are primarily governed by two laws: (1) The Independent Offices Appropriation Act, 1952 (IOAA) (31 U.S.C. 9701), and (2) OBRA-90 (42 U.S.C. 2214). The IOAA generally authorizes and encourages Federal regulatory agencies to recover—to the fullest extent possible—costs attributable to services provided to identifiable recipients. Under OBRA-90, the NRC must recover approximately 90 percent of its budget authority for the fiscal year through fees. In FY 2020, the following appropriated amounts are excluded from the fee-recovery requirement: the development of a regulatory infrastructure for advanced nuclear reactor technologies, international activities, generic homeland security activities, Waste Incidental to Reprocessing, and Inspector General services for the Defense Nuclear Facilities Safety Board. Under OBRA-90, the NRC must use its IOAA authority first to collect service fees for NRC work that provides specific benefits to identifiable applicants and licensees (such as licensing work, inspections, and special projects).

The NRC's regulations in part 170 of title 10 of the Code of Federal Regulations (10 CFR), “Fees for Facilities, Materials, Import and Export Licenses, and Other Regulatory Services Under the Atomic Energy Act of 1954, as amended,” authorize the fees the agency is required to collect from specific beneficiaries. Because the NRC's fee recovery under the IOAA (10 CFR part 170) will not equal 90 percent of the agency's budget authority for the fiscal year, the NRC also assesses “annual fees” under 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,” to recover the remaining amount necessary to meet OBRA-90's fee-recovery requirement.

II. Petition for Rulemaking: (PRM-171-1; NRC-2019-0084)

On February 28, 2019, the NRC received a petition for rulemaking (ADAMS Accession No. ML19081A015) from Dr. Michael D. Meier, on behalf of the Southern Nuclear Operating Company (the petitioner). The petitioner requested that the NRC revise its regulations in 10 CFR part 171 related to the start of the assessment of annual fees for combined license (COL) holders licensed under 10 CFR part 52, “Licenses, Certifications, and Approvals for Nuclear Power Plants,” to align with the commencement of “commercial operation” of a licensed nuclear power plant. Specifically, the petitioner requested that the NRC revise the timing of when annual fees commence for COL holders to coincide with when a reactor achieves “commercial operation,” rather than when the NRC finds under § 52.103(g) that the acceptance criteria in the COL are met, after which the licensee can operate the facility. The NRC's regulations at § 171.15 currently require a 10 CFR part 52 COL holder to pay the annual fee upon the Commission's finding under § 52.103(g).

Public Comment on PRM-171-1

The NRC published a notice of docketing in the Federal Register (84 FR 26774; June 10, 2019), and requested public comment on the issues raised in PRM-171-1. The comment period closed on July 10, 2019. The NRC received five public comment submissions; these comments are available on www.regulations.gov under the docket ID NRC-2019-0084. Comments were submitted by Nuclear Energy Institute (NEI), several industry stakeholders, and one non-government organization, and all comments supported the petitioner's request. The NRC has carefully considered the public comments received on PRM-171-1, and provides this summary and analysis of the issues raised by the commenters.

Comment: Two commenters recommended expanding the scope of the rulemaking to apply to reactors licensed under 10 CFR part 50 and small modular reactors with conforming changes to § 171.19(e)(1).

Response: The NRC agrees with this comment. A power reactor can submit an application under 10 CFR parts 50 and part 52; therefore, the NRC found it reasonable to apply this to change to both 10 CFR parts. Although this comment is beyond the scope of PRM-171-1, the NRC considered this subject in its rulemaking for annual fees under 10 CFR part 171 within the FY 2020 fee rule. The annual fee assessment for 10 CFR part 50 power reactor licensees and 10 CFR part 52 COL holders will begin on the date of the licensee's written notification of successful completion of power ascension testing. The NRC notes that 10 CFR part 50 includes non-power reactor licensees (e.g., test reactors, research reactors) that the commenters did not separately distinguish. The NRC will consider, expanding the scope of 10 CFR part 171 to cover other 10 CFR part 50 licensees in a future rulemaking.

Comment: One commenter stated that, “[t]his is a drop in the bucket of the overall costs associated with getting the plant online, but is a great first step in removing government from the equation and letting costs be determined by market forces . . . [licensees] could then be able to assess their costs and set prices with the thumb of government pressing less forcefully on the economic scales.”

Response: The NRC disagrees with the commenter's suggestion that fees should be determined by market forces. The NRC is required by statute, OBRA-90, as amended, to recover 90 percent of its budget in fees assessed to licensees, less portions specifically excluded from fee recovery or granted as fee-relief. Starting in FY 2021, the Nuclear Energy Innovation and Modernization Act (NEIMA) will increase the amount of the budget to be recovered to 100 percent, less portions specifically excluded or determined by the Commission as fee-relief. To maintain the cohesiveness of NRC's fee schedules, the Commission has maintained appropriate policies to comply with statutory requirements. The Commission previously addressed this issue in the statement of considerations for the FY 2002 final fee rule (67 FR 42611; June 24, 2002) that “the NRC has not based its fees on licensees' economic status, market conditions, or the ability of licensees to pass through the costs to its customers.” In keeping with the agency's independent, non-promotional regulatory role, the NRC's regulations deliberately are not tied to economic viability or profitability, nor has the NRC assessed fees based on these concepts.

No changes were made to the final rule as a result of these comments.

PRM-171-1 Consideration

The petitioner requested that the NRC consider this rule change within the context of its annual fee rulemaking to amend 10 CFR parts 170 and 171 to collect FY 2020 fees. The NRC published a notice in the Federal Register (84 FR 65032; November 26, 2019) that granted partial consideration by modifying the timing regarding the assessment of annual fees for 10 CFR part 52 COL holders in the FY 2020 fee rule.

Based on its review of PRM-171-1 and the public comments, the NRC is amending § 171.15(a) to modify the timing regarding the assessment of annual fees for 10 CFR part 52 COL holders. In addition, the NRC is amending the timing regarding the assessment of annual fees to apply to future 10 CFR part 50 power reactor licensees. See the FY 2020 Policy Changes section of this final rule for additional information on the amendment resulting from PRM-171-1.

III. Discussion

FY 2020 Fee Collection—Overview

The NRC is issuing this FY 2020 final fee rule based on Public Law (Pub. L.) 116-93—Further Consolidated Appropriations Act, 2020, (the enacted budget). The final fee rule reflects a budget authority in the amount of $855.6 million, a decrease of $55.4 million from FY 2019. As explained previously, certain portions of the NRC's total budget are excluded from OBRA-90's fee-recovery requirement. Based on the FY 2020 enacted budget, these exclusions total $46.6 million, consisting of $15.5 million for the development of a regulatory infrastructure for advanced nuclear reactor technologies; $14.5 million for international activities; $14.1 million for generic homeland security activities; $1.3 million for Waste Incidental to Reprocessing activities; and $1.2 million for Inspector General services for the Defense Nuclear Facilities Safety Board. Additionally, OBRA-90 requires the NRC to recover approximately 90 percent of the remaining budget authority for the fiscal year—10 percent of the remaining budget authority need not be recovered through fees. The NRC refers to the activities included in this 10-percent as “fee-relief” activities.

After accounting for the fee-recovery exclusions, the fee-relief activities, and net billing adjustments (i.e., the sum of unpaid current year invoices (estimated) minus payments for prior year invoices, and current year collections made for the termination of one operating power reactor), the NRC must recover approximately $728.1 million in fees in FY 2020. Of this amount, the NRC estimates that $220.2 million will be recovered through 10 CFR part 170 service fees and approximately $507.9 million will be recovered through 10 CFR part 171 annual fees. Table I summarizes the fee-recovery amounts for the FY 2020 final fee rule using the enacted budget, and taking into account excluded activities, fee-relief activities, and net billing adjustments. For all information presented in the following tables, individual values may not sum to totals due to rounding. Please see the work papers (ADAMS Accession No. ML20142A363) for actual amounts.

Public Law 116-93—Further Consolidated Appropriations Act, 2020, also includes direction for the NRC to use $40.0 million in prior year unobligated carryover funds. The use of carryover funds allows the NRC to accomplish the work needed without additional costs to licensees because, consistent with the requirements of OBRA-90, fees are calculated based on the budget authority enacted for the current fiscal year and not carryover funds.

The Commission has authorized a suspension of billing of 10 CFR part 171 annual fees, and 10 CFR part 170 fees for services, for the 90-day period of April through June 2020. This action includes all annual fees that would have come due during the 90-day period and fees for services that would have been billed in April for services rendered January through March 2020. These deferred fees will be billed in July 2020. The NRC took this action to help mitigate the financial impacts and economic disruptions caused by the COVID-19 Pandemic.

FY 2020 Fee Collection—Professional Hourly Rate

The NRC uses a professional hourly rate to assess fees under 10 CFR part 170 for specific services it provides. The professional hourly rate also helps determine flat fees (which are used for the review of certain types of license applications). This rate would be applicable to all activities for which fees are assessed under §§ 170.21 and 170.31.

The NRC's professional hourly rate is derived by adding budgeted resources for: (1) Mission-direct program salaries and benefits, (2) mission-indirect program support, and (3) agency support (corporate support and the Inspector General). The NRC then subtracts certain offsetting receipts and divides this total by the mission-direct full-time equivalent (FTE) converted to hours (the mission-direct FTE converted to hours is the product of the mission-direct FTE multiplied by the estimated annual mission-direct FTE productive hours). The only budgeted resources excluded from the professional hourly rate are those for mission-direct contract resources, which are generally billed to licensees separately. The following shows the professional hourly rate calculation:

For FY 2020, the NRC is increasing the professional hourly rate from $278 to $279. The FY 2019 professional hourly rate was $278, as discussed in the statement of considerations for both the FY 2019 proposed and final fee rules. During the development of the FY 2020 proposed fee rule, the NRC staff identified that the amendatory language for 10 CFR 170.20, “Average cost per professional staff-hour,” inadvertently was not updated in FY 2019 to reflect the professional hourly rate of $278, which is why the regulatory language in this final rule continues to show the FY 2018 professional hourly rate of $275. The NRC has updated the statement of considerations for the FY 2020 fee rule and the amendatory language to reflect the proposed FY 2020 professional hourly rate of $279.

The slight increase in the FY 2020 professional hourly rate is primarily due to the anticipated decline in number of mission-direct FTE compared to FY 2019. The hourly rate is inversely related to the mission-direct FTE amount, therefore as the number of mission-direct FTE decrease the hourly rate can increase. The number of mission-direct FTE is expected to decline by 109, primarily due to: (1) The anticipated completion of the NuScale small modular reactor (SMR) design certification review; (2) a reduction in workload associated with the Clinch River Nuclear Site (Clinch River) early site permit; (3) the power reactor plant closures of Oyster Creek Nuclear Generating Station (Oyster Creek), Pilgrim Nuclear Power Station (Pilgrim), Three Mile Island (TMI) Nuclear Generating Station, Unit 1 (TMI 1); (4) the expected decline in submissions for fuel facility license renewal applications; (5) the decrease in the number of fuel facility license amendments; (6) the termination of the Mixed-Oxide (MOX) Fuel Fabrication Facility construction authorization; and (7) efficiencies gained within the fuel facilities inspection program. The FY 2020 estimate for annual mission-direct FTE productive hours is 1,510 hours, which is unchanged from FY 2019. This estimate, also referred to as the productive hours assumption, reflects the average number of hours that a mission-direct employee spends on mission-direct work in a given year. This estimate therefore excludes hours charged to annual leave, sick leave, holidays, training, and general administrative tasks. Table II shows the professional hourly rate calculation methodology. The FY 2019 amounts are provided for comparison purposes.

FY 2020 Fee Collection—Flat Application Fee Changes

The NRC is amending the flat application fees it charges in its schedule of fees in §§ 170.21 and 170.31 to reflect the revised professional hourly rate of $279. The NRC charges these fees to applicants for materials licenses and other regulatory services, as well as holders of materials licenses. The NRC calculates these flat fees by multiplying the average professional staff hours needed to process the licensing actions by the professional hourly rate for FY 2020. As part of its calculations, the NRC analyzes the actual hours spent performing licensing actions and estimates the five-year average professional staff hours that are needed to process licensing actions as part of its biennial review of fees, which is required by Section 205(a) of the Chief Financial Officers Act of 1990 (31 U.S.C. 902(a)(8)). The NRC performed this review in FY 2019 and will perform this review again in FY 2021. The higher professional hourly rate of $279 is the primary reason for the increase in application fees. Please see the work papers for more detail.

The NRC rounds these flat fees in such a way that ensures both convenience for its stakeholders and that any rounding effects are minimal. Accordingly, fees under $1,000 are rounded to the nearest $10, fees between $1,000 and $100,000 are rounded to the nearest $100, and fees greater than $100,000 are rounded to the nearest $1,000.

The licensing flat fees are applicable for certain materials licensing actions (see fee categories 1.C. through 1.D., 2.B. through 2.F., 3.A. through 3.S., 4.B. through 5.A., 6.A. through 9.D., 10.B., 15.A. through 15.L., 15.R., and 16 of § 170.31). Because the enacted budget excludes international activities from the fee-recoverable budget, import and exporting licensing activities, funded through the international activities product line (see fee categories K.1. through K.5. of § 170.21 and fee categories 15.A. through 15.R. of § 170.31) will not be charged flat fees under this final rule. Applications filed on or after the effective date of the FY 2020 final fee rule will be subject to the revised fees in this final rule.

FY 2020 Fee Collection—Fee-Relief and Low-Level Waste Surcharge

As previously noted, OBRA-90 requires the NRC to recover approximately 90 percent of its annual budget authority for the fiscal year. The NRC applies the remaining 10 percent that is not recovered to offset certain budgeted activities—see Table III for a full listing of these “fee-relief” activities. If the amount budgeted for these fee-relief activities is greater or less than 10 percent of the NRC's annual budget authority (less the fee-recovery exclusions), then the NRC applies a fee adjustment (either an increase or decrease) to all licensees' annual fees, based on the percentage of the NRC's budgeted resources allocated to each fee class.

In FY 2020, the amount budgeted for fee-relief activities is less than the 10 percent threshold. Therefore, the NRC is assessing a fee-relief credit that decreases all licensees' annual fees. Table III summarizes the fee-relief activities budgeted for FY 2020. The FY 2019 amounts are provided for comparison purposes.

Table IV shows how the NRC allocates the $1.3 million fee-relief credit to each licensee fee class. In addition to the fee-relief credit, the NRC assesses a generic low-level waste (LLW) surcharge of $3.4 million. Disposal of LLW occurs at commercially operated LLW disposal facilities that are licensed by either the NRC or an Agreement State. Four existing LLW disposal facilities in the United States accept various types of LLW. All are located in Agreement States and, therefore, are regulated by an Agreement State, rather than the NRC. The NRC allocates this surcharge to its licensees based on data available in the U.S. Department of Energy's (DOE) Manifest Information Management System (MIMS). This database contains information on total LLW volumes disposed by four generator classes: Academic, industrial, medical, and utility. The ratio of waste volumes disposed by these generator classes to total LLW volumes disposed over a period of time is used to estimate the portion of this surcharge that will be allocated to the power reactors, fuel facilities, and materials fee classes. The materials portion is adjusted to account for the large percentage of materials licensees that are licensed by the Agreement States rather than the NRC.

The LLW surcharge amounts have changed since publication of the proposed rule. The DOE updated MIMS with 2020 data; as a result of the update, the LLW surcharge for operating power reactors fee class increased from $2.8 million to $3.0 million and the LLW surcharge decreased from $0.4 million to $0.3 million for fuel facilities; while the LLW surcharge remained stable at $0.1 million for materials users.

Table IV shows the LLW surcharge and fee-relief credit and allocation across the various fee classes.

FY 2020 Fee Collection—Revised Annual Fees

In accordance with SECY-05-0164, “Annual Fee Calculation Method” (ADAMS Accession No. ML052580332), the NRC rebaselines its annual fees every year. “Rebaselining” entails analyzing the budget in detail and then allocating the budgeted costs to various classes or subclasses of licensees. It also includes updating the number of NRC licensees in its fee calculation methodology.

The NRC revised its annual fees in §§ 171.15 and 171.16 to recover approximately 90 percent of the NRC's FY 2020 enacted budget (less the fee-recovery exclusions and the estimated amount to be recovered through 10 CFR part 170 fees). The total estimated 10 CFR part 170 collections for this final rule are $220.2 million, a decrease of $31.9 million from the FY 2019 final rule (see the specific fee class sections for a discussion of this decrease). The NRC, therefore, must recover $507.9 million through annual fees from its licensees, which is a decrease of $22.6 million from the FY 2019 final rule.

Table V shows the final rebaselined fees for FY 2020 for a representative list of licensee categories. The FY 2019 amounts are provided for comparison purposes.

The work papers that support this final rule show in detail how the NRC allocates the budgeted resources for each class of licensees and calculates the fees.

Paragraphs a. through h. of this section describe the budgeted resources allocated to each class of licensees and the calculations of the rebaselined fees. For more information about detailed fee calculations for each class, please consult the accompanying work papers for this final rule.

a. Operating Power Reactors

The NRC will collect $439.0 million in annual fees from the operating power reactors fee class in FY 2020, as shown in Table VI. The FY 2019 fees are shown for comparison purposes.

In comparison to FY 2019, the resources budgeted for the operating power reactors fee class decreased by $46.3 million due to a decline in FTE that includes, but is not limited to, the following: (1) The closures of Oyster Creek, Pilgrim, and TMI 1; (2) the delay in receipt of the Utah Associated Municipal Power System SMR application; (3) withdrawal of the Blue Castle large light-water reactor application; (4) delay in the submittal of the Advanced Passive 1000 design certification renewal application; (5) the near completion of Phase 4 of the NuScale SMR design certification review; (6) the completion of the Clinch River early site permit technical review; (7) a reduction in license amendment requests for the Vogtle Electric Generating Plant; (8) expected delays in construction and operating license application review activities for Bellefonte Nuclear Station, Units 1 and 2; (9) efficiencies gained from the merger of the Office of Nuclear Reactor Regulation and the Office of New Reactors; and (10) the completion of flooding and integrated assessment work related to lessons learned from the accident at Fukushima Dai-ichi in Japan. In addition, the total budgeted resources decreased due to the utilization of prior year unobligated carryover funding.

The 10 CFR part 170 estimated billings declined primarily due to the following: (1) Decreases in both licensing actions and inspections resulting from the shutdown of the Pilgrim and TMI 1 reactors at the end of FY 2019; (2) the shutdown of Indian Point Nuclear Generating, Unit 2 (Indian Point 2) during FY 2020; (3) the completion of the Advanced Power Reactor-1400 design certification, issued in FY 2019 for Korea Hydro and Nuclear Power Co., LTD.; and (4) the completion of the NuScale SMR design certification review and the completion of the Clinch River early site permit technical review. This decrease in the 10 CFR part 170 estimated billings is partially offset by increased work to support the Oklo Power LLC COL application for the Aurora micro reactor.

The recoverable budgeted costs are divided equally among the 95 licensed operating power reactors, resulting in an annual fee of $4,621,000 per reactor. As part of the final annual fee, an approximate $2,725,000 current year collection adjustment was included in the operating power reactors calculation due to the shutdown of Indian Point 2 as shown in Table VI. Additionally, each licensed operating power reactor is assessed the FY 2020 spent fuel storage/reactor decommissioning annual fee of $188,000 (see Table VII and the discussion that follows). The combined FY 2020 annual fee for each operating power reactor is $4,809,000.

In FY 2016, the NRC amended its licensing, inspection, and annual fee regulations to establish a variable annual fee structure for light-water SMRs (81 FR 32617). Under the variable annual fee structure, an SMR's annual fee would be calculated as a function of its licensed thermal power rating. Currently, there are no operating SMRs; therefore, the NRC will not assess an annual fee in FY 2020 for this type of licensee.

b. Spent Fuel Storage/Reactor Decommissioning

The NRC will collect $22.9 million in annual fees from 10 CFR part 50 power reactors, and from 10 CFR part 72 licensees that do not hold a 10 CFR part 50 license, to recover the budgeted costs for the spent fuel storage/reactor decommissioning fee class, as shown in Table VII. The FY 2019 fees are shown for comparison purposes.

In comparison to FY 2019, the resources budgeted for the spent fuel storage/reactor decommissioning fee class increased to support the following: (1) The review of new storage license renewal applications for Holtec HI-Storm 100, TN-32, TN-68, NAC UMS, NAC-MPC, Westinghouse W-150, and GE-Hitachi Morris Operation, which are expected in FY 2020; (2) inspection activities related to site preparation for decommissioning of TMI 1, Pilgrim, Oyster Creek, and Indian Point; and (3) fuel performance research. In addition, budgeted resources for contract costs increased due to a reduction in the utilization of prior year unobligated carryover funding compared to FY 2019.

The 10 CFR part 170 estimated billings for FY 2020 decreased primarily due to the following: (1) The completion of certain follow-up inspections and enforcement activities for San Onofre Nuclear Generating Station; (2) a reduction in the staff's review of the Holtec HI-STORE consolidated interim storage facility application due to the extension of the public comment period on the draft environmental impact statement until the end of July; (3) the completion of the Oyster Creek license transfer application and other licensing activities; and (4) the completion of amendments, partial site release requests, and final status surveys at multiple sites. This decrease in the 10 CFR part 170 estimated billings is partially offset by increased work to support the following: (1) License renewals, amendments, and certificates of compliance (CoCs) at multiple sites, and (2) the staff's review of the Indian Point 1 and TMI 2 license transfer applications. The overall decrease in 10 CFR part 170 estimated billings resulted in an increase in annual fees under 10 CFR part 171.

In addition, the annual fee increased due to the rise in generic transportation costs as a result of two new CoCs in FY 2020.

The required annual fee recovery amount is divided equally among 122 licensees, resulting in an FY 2020 annual fee of $188,000 per licensee.

c. Fuel Facilities

The NRC will collect $18.0 million in annual fees from the fuel facilities fee class, as shown in Table VIII. The FY 2019 fees are shown for comparison purposes.

In comparison to FY 2019, the resources budgeted for the fuel facilities fee class decreased primarily due to the following: (1) An expected decline in submissions for license renewal applications; (2) the decrease in the number of license amendments; (3) the termination of the MOX Fuel Fabrication Facility construction authorization; (4) efficiencies gained because of changes to the Fuel Facilities Inspection Program and workload projections; and (5) the utilization of prior year unobligated carryover funding in FY 2020. The 10 CFR part 170 estimated billings decreased as a result of the withdrawal of the license application for the MOX Fuel Fabrication Facility.

The NRC will continue allocating annual fees to individual fuel facility licensees based on the effort/fee determination matrix developed in the FY 1999 final fee rule (64 FR 31447; June 10, 1999). To briefly recap, the matrix groups licensees within this fee class into various fee categories. The matrix lists processes conducted at licensed sites and assigns effort factors for the safety and safeguards activities associated with each process (these effort levels are reflected in Table IX). The annual fees are then distributed across the fee class based on the regulatory effort assigned by the matrix. The effort factors in the matrix represent regulatory effort that is not recovered through 10 CFR part 170 fees (e.g., rulemaking, guidance). Regulatory effort for activities that are subject to 10 CFR part 170 fees, such as the number of inspections, is not applicable to the effort factor. In FY 2020, the safety and safeguard factors in the effort factors matrix for Liquid Uranium Hexafluoride (UF6) processes at Uranium Conversion facilities have been reduced from 5 (moderate effort) to 0 (no effort). Currently, there is one uranium conversion facility and it is in a “ready-idle” status with no processing operations, and the NRC believes that it will remain in “ready-idle” position for FY 2020 and will need to be reassessed on an annual basis. Regulatory oversight of processing operations have been curtailed while the operations are in a “ready-idle” status. Therefore, the Liquid UF6 processing at Uranium Conversion facilities safety and safeguards factors in the effort factors matrix have been reduced from a 5 to 0 to reflect the curtailed regulatory oversight of these processes.

In FY 2020, the total remaining amount of annual fees to be recovered, $18.0 million, is comprised of safety activities, safeguards activities, and the fee-relief adjustment/LLW surcharge. For FY 2020, the total budgeted resources to be recovered as annual fees for safety activities are $10.1 million. To calculate the annual fee, the NRC allocates this amount to each fee category based on its percentage of the total regulatory effort for safety activities. Similarly, the NRC allocates the budgeted resources to be recovered as annual fees for safeguards activities, $7.6 million, to each fee category based on its percentage of the total regulatory effort for safeguards activities. Finally, the fuel facilities fee class portion of the fee-relief adjustment/LLW surcharge—$0.3 million—is allocated to each fee category based on its percentage 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. The fee for each facility is summarized in Table X.

d. Uranium Recovery Facilities

The NRC will collect $0.2 million in annual fees from the uranium recovery facilities fee class, which is stable compared to FY 2019, as shown in Table XI. The FY 2019 fees are shown for comparison purposes.

In comparison to FY 2019, the budgeted resources and 10 CFR part 170 estimated billings for the uranium recovery fee class decreased due to the expected reduction in support for adjudicatory actions, the uncertainty associated with the construction of the NuFuels Crownpoint site in NM and Powertech Dewey Burdock site in SD, and Cameco's continuation to cease U.S. uranium recovery operations at its Crow Butte facility in Crawford, NE. Budgeted resources also decreased to include additional uranium recovery resources in the fee-relief category, “In Situ leach rulemaking and unregistered general licenses,” in order to ensure the equitability and the stability of annual fees.

The NRC regulates DOE's Title I and Title II activities under Uranium Mill Tailings Radiation Control Act (UMTRCA) and the annual fee assessed to DOE includes the costs specifically budgeted for the NRC's UMTRCA Title I and II activities, as well as 10 percent of the remaining budgeted costs for this fee class. The NRC described the overall methodology for determining fees for UMTRCA in the FY 2002 fee rule (67 FR 42625; June 24, 2002), and the NRC continues to use this methodology. The DOE's UMTRCA annual fee decreased compared to FY 2019 due to an increase in the 10 CFR part 170 estimated billings for processing groundwater corrective action plans site reviews, the anticipated workload increases at various DOE UMTRCA sites, and the fee-relief credit. The NRC assesses the remaining 90 percent of its budgeted costs to the remaining licensee in this fee class, as described in the work papers. This is reflected in Table XII:

Further, for any non-DOE licensees, the NRC will continue using a matrix to determine the effort levels associated with conducting generic regulatory actions for the different licensees in the uranium recovery fee class; this is similar to the NRC's approach for fuel facilities, described previously. The matrix methodology for uranium recovery licensees first identifies the licensee categories included within this fee class (excluding DOE). These categories are: conventional uranium mills and heap leach facilities, uranium in situ recovery (ISR) and resin ISR facilities, mill tailings disposal facilities, and uranium water treatment facilities. The matrix identifies the types of operating activities that support and benefit these licensees, along with each activity's relative weight (for more information, see the work papers). Currently, there is only one remaining non-DOE licensee which is a Basic In Situ Recovery facility. Table XIII displays the benefit factors for the non-DOE licensee in that fee category:

The annual fee for the remaining non-DOE licensee is calculated by allocating 100 percent of the budgeted resources, as summarized in Table XIV.

e. Research and Test Reactors (non-power reactors)

The NRC will collect $0.325 million in annual fees from the research and test reactor licensee class, as shown in Table XV. The FY 2019 fees are shown for comparison purposes.

In comparison to FY 2019, the budgeted resources for the research and test reactors increased primarily within the medical isotope production facilities due to the submittal of the SHINE Medical Technologies, Inc. (SHINE) operating license application.

The 10 CFR part 170 estimated billings also increased due to the following: (1) The submittal of SHINE's operating license application for a medical production facility; (2) the review of Aerotest Operations, Inc.'s request to amend its operating license to possession only; and (3) reviews of the National Institute of Standards and Technology and GE-Hitachi Nuclear Energy America's, LLC Nuclear Test Reactor license amendments for security plan reviews.

The annual fee-recovery amount is divided equally among the four research and test reactors subject to annual fees and results in an FY 2020 annual fee of $81,300 for each licensee.

f. Rare Earth

The NRC has not allocated any budgeted resources to this fee class; therefore, the NRC is not assessing an annual fee for this fee class in FY 2020.

g. Materials Users

The NRC will collect $34.1 million in annual fees from materials users licensed under 10 CFR parts 30, 40, and 70, as shown in Table XVI. The FY 2019 fees changes are shown for comparison purposes.

The formula for calculating 10 CFR part 171 annual fees for the various categories of materials users is described in detail in the work papers. Generally, the calculation results in a single annual fee that includes 10 CFR part 170 costs, such as amendments, renewals, inspections, and other licensing actions specific to individual fee categories.

The total annual fee recovery of $34.1 million for FY 2020 shown in Table XVI consists of $26.6 million for general costs and $7.5 million for inspection costs. To equitably and fairly allocate the $34.1 million required to be collected among approximately 2,500 diverse materials users licensees, the NRC continues to calculate the annual fees for each fee category within this class based on the 10 CFR 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 materials license, this approach provides a proxy for allocating the generic and other regulatory costs to the diverse fee categories. This fee-calculation method also considers the inspection frequency (priority), which is indicative of the safety risk and resulting regulatory costs associated with the categories of licenses.

The NRC will decrease annual fees for licensees in this fee class in FY 2020 due to the following: (1) The utilization of prior year unobligated carryover funding in FY 2020; (2) reductions of regional resources for the Nuclear Regulatory Apprenticeship Network (formerly the Nuclear Safety Professional Development Program); (3) budget estimates that are better aligned with projected workload; and (4) a decline in the generic transportation costs for materials users. The decline in annual fees for materials users is offset by a reduction of materials users licensees from FY 2019.

A constant multiplier is established to recover the total general costs (including allocated generic transportation costs) of $26.6 million. To derive the constant multiplier, the general cost amount is divided by the sum of all fee categories (application fee plus the inspection fee divided by inspection priority) then multiplied by the number of licensees. This calculation results in a constant multiplier of 1.27 for FY 2020. The average inspection cost is the average inspection hours for each fee category multiplied by the professional hourly rate of $279. The inspection priority is the interval between routine inspections, expressed in years. The inspection multiplier is established in order to recover the $7.5 million in inspection costs. To derive the inspection multiplier, the inspection costs amount is divided by the sum of all fee categories (inspection fee divided by inspection priority) then multiplied by the number of licensees. This calculation results in an inspection multiplier of 1.48 for FY 2020. The unique category costs are any special costs that the NRC has budgeted for a specific category of licenses. Please see the work papers for more detail about this classification.

The annual fee assessed to each licensee also takes into account a share of the approximately $0.051 million fee-relief credit assessment allocated to the materials users fee class (see Table IV, “Allocation of Fee-Relief Adjustment and LLW Surcharge, FY 2020,” in Section IV, “Discussion,” of this document), and for certain categories of these licensees, a share of the approximately $0.089 million in LLW surcharge costs allocated to the fee class. The annual fee for each fee category is shown in the revision to § 171.16(d).

h. Transportation

The NRC will collect $1.0 million in annual fees to recover generic transportation budgeted resources in FY 2020, as shown in Table XVII. The FY 2019 fees are shown for comparison purposes.

In comparison to FY 2019, the total budgeted resources for generic transportation activities decreased due to the following: (1) The utilization of prior year unobligated carryover funding; (2) a reduction in FTE due to decreases in maintenance work associated with the Storage and Transportation Information Management System; and (3) the decline in DOE's percentage of total CoCs as a result of two new CoCs benefitting other fee classes. The 10 CFR part 170 estimated billings decreased primarily due to the issuance of CoCs for NAC International, Inc. and Industrial Nuclear Company, LLC in FY 2019.

Consistent with the policy established in the NRC's FY 2006 final fee rule (71 FR 30721; May 30, 2006), the NRC recovers generic transportation costs unrelated to DOE by including those costs in the annual fees for licensee fee classes. The NRC continues to assess a separate annual fee under § 171.16, fee category 18.A., for DOE transportation activities. The amount of the allocated generic resources 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.

This resource distribution to the licensee fee classes and DOE is shown in Table XVIII. Note that for the research and test reactors fee class, the NRC allocates the distribution to only those licensees that are subject to annual fees. Although four CoCs benefit the entire research and test reactor class, only 4 out of 31 research and test reactors are subject to annual fees. Consequently, the number of CoCs used to determine the proportion of generic transportation resources allocated annual fees for the research and test reactors fee class has been adjusted to 0.7 so these licensees are charged a fair and equitable portion of the total fees. For more information, see the work papers.

The NRC assesses an annual fee to DOE based on the 10 CFR part 71 CoCs it holds. The NRC, therefore, does not allocate these DOE-related resources to other licensees' annual fees because these resources specifically support DOE.

FY 2020—Policy Changes

The NRC is making two policy changes for FY 2020:

Removing the Fee Exceptions in § 170.21, Footnote 1 and § 170.31, Footnote 2

The NRC is eliminating the fee exceptions set forth in footnote 1 to § 170.21 “Schedule of Fees for Production and Utilization Facilities, Review of Standard Referenced Design Approvals, Special Projects, Inspections, and Import and Export Licenses,” and footnote 2 to § 170.31, “Schedule of Fees for Materials Licenses and Other Regulatory Services, Including Inspections, and Import and Export Licenses.” These footnotes contain parallel language stating that the NRC “will not charge fees under 10 CFR part 170 for orders related to civil penalties or other civil sanctions issued by the Commission under § 2.202 or for amendments resulting specifically from the requirements of these orders.”

Currently, footnote 1 to § 170.21 and footnote 2 to § 170.31 provide an exception to the general rule that the NRC recovers review and inspection costs through fees assessed to individuals under 10 CFR part 170. The current language excludes the following activities from 10 CFR part 170 fees if an order relates to a civil penalty or other sanction: (1) Subsequent NRC inspection or review work to ensure compliance with the terms of the order, and (2) subsequent NRC review costs if the order requires the licensee to seek a license amendment. The current language also states, however, that where an order is “unrelated to civil penalties or other civil sanctions,” the NRC will follow its normal practice of assessing fees under 10 CFR part 170.

The language in these footnotes comes from the NRC's FY 2005 fee rule (70 FR 30526; May 26, 2005). Before 2005, the NRC excluded work in connection with all orders from 10 CFR part 170 fees. In the FY 2005 fee rule, the NRC amended the footnotes to narrow the exceptions to just those orders that “relate” to civil penalties or civil sanctions. The NRC made this change because, after September 11, 2001, it had imposed additional security requirements on multiple licensees through orders. As a result of these orders, the NRC performed extensive follow-up activities that, because of the pre-existing broad exceptions in footnotes 1 and 2, were exempt from 10 CFR part 170 fees. Because these activities were exempt from 10 CFR part 170 fees, the NRC recovered the associated costs through annual fees under 10 CFR part 171, even though the work benefited specific licensees (70 FR 30528-30535; May 26, 2005).

Through the FY 2005 fee rule, the NRC attempted to allocate costs more fairly by ensuring that the beneficiaries of its review and inspection services associated with orders of the type issued after September 11, 2001, paid for those services through 10 CFR part 170 fees. At the same time, the NRC retained an exception for orders that relate to a civil penalty or civil sanction. The NRC also explained in the FY 2005 fee rule that it was maintaining its longstanding policy of not charging 10 CFR part 170 fees for the preparation of any order. The costs associated with preparing an order would continue to be recovered through annual fees under 10 CFR part 171.

The authority for assessing the 10 CFR part 171 fees comes from the same statute that provides the authority for the NRC's 10 CFR part 170 fee schedule. The IOAA requires that the NRC assess fees fairly and equitably, and it authorizes the NRC to collect fees whenever the agency provides “a service or thing of value” to a recipient. In addition, OBRA-90 (or, in future fiscal years, NEIMA) and Office of Management and Budget (OMB) Circular A-25, “User Charges,” require that the NRC recover fees from persons who derive a direct benefit from the agency's services.

Even if an order related to a civil penalty or civil sanction has some public benefit, the services the NRC provides in connection with the order, such as inspections and document-review activities, primarily benefit a specific licensee. These services primarily benefit the licensee because they enable the licensee to maintain its NRC license in good standing and continue to operate its facility. Furthermore, regardless of whether the NRC issues an order in a safety, security, or enforcement context, the NRC's follow-up services related to the order—inspections, document review and analysis, and other services—benefit the licensee by contributing to public confidence in the safe operation of the licensee's facility. Charging 10 CFR part 170 fees for services related to all orders is therefore most consistent with the NRC's obligations under the governing fee-recovery statutes and OMB Circular A-25. Transferring the cost of these services to other members of a licensee's fee class, on the other hand, could therefore be viewed as unfair and inconsistent with the governing fee-recovery statutes and OMB Circular A-25.

Accordingly, in this final rule, the NRC is removing the fee exceptions (i.e., the first two sentences) from § 170.21, footnote 1 and § 170.31, footnote 2. Removing the exceptions promotes fairness and equity in the NRC's fees rules, consistent with the IOAA, ensures that licensees who receive special benefits in the form of NRC services pay for those services, consistent with OMB Circular A-25. Removing the exceptions also simplifies the NRC's fee schedules. If there are circumstances in which charging 10 CFR part 170 fees for follow-up activities related to an order would be unfair, the NRC retains the ability under § 170.11 to grant a fee exemption for those services, either on its own initiative or upon request.

Removing the fee exceptions will not, however, change the NRC's longstanding policy regarding the recovery of costs associated with preparing an order. Consistent with this policy, such costs will continue to be recovered through annual fees under 10 CFR part 171.

Amending § 171.15 Regarding the Assessment of Annual Fees for 10 CFR Part 52 Combined License Holders and Future 10 CFR Part 50 Power Reactor Licensees

Based on its review of PRM-171-1 and the public comments, the NRC is amending § 171.15(a) so that the assessment of annual fees for 10 CFR part 52 COL holders commences upon successful completion of power ascension testing, rather than after the Commission makes a finding under § 52.103(g). This approach will also apply this approach to future 10 CFR part 50 power reactor licensees.

Currently, § 171.15 requires a 10 CFR part 52 COL holder to begin paying the annual fee once the Commission finds under § 52.103(g) that all acceptance criteria in the COL are met. Similarly, 10 CFR part 50 licensees begin paying annual fees upon issuance of an operating license. The timing of annual fees reflects the NRC's historical position that a nuclear power reactor licensee receives the benefits of its license, and thus should begin paying annual fees, when the NRC authorizes the licensee to use nuclear materials (i.e., begin operating the reactor).

The NRC is firmly committed to the application of fairness and equity in the assessment of fees to licensees. The NRC recognizes that, subsequent to the § 52.103(g) finding for 10 CFR part 52 COL holders, and issuance of the operating license for 10 CFR part 50 power reactor licensees, fuel must be loaded, and power ascension testing must be completed to provide assurance that the facility is fully operational. As part of this process, 10 CFR part 52 COL holders must provide written notification to the NRC that successful power ascension testing is completed. This notification is the trigger that enables operation at a steady-state reactor core power level equal to 100 percent of reactor thermal power as defined in the facility's final safety analysis report.

As a result, the NRC recognizes that it would be more fair and equitable to change the timing of when annual fees commence for 10 CFR part 52 licensees from when the Commission issues a § 52.103(g) finding to a time that aligns more closely with the licensee's facility becoming fully operational. For that reason, the NRC will defer charging annual fees until after the licensee's start-up and initial-testing phase. The NRC will begin charging annual fees only after the licensee has notified the NRC in writing that it has successfully completed power ascension testing. For similar reasons, the NRC is also applying this change to 10 CFR part 50 power reactor licensees.

Because only current 10 CFR part 52 COLs contain a standard license condition that requires written notification be submitted to the NRC upon successful completion of power ascension testing, the NRC will consider adding a similar license condition to future 10 CFR part 50 operating licenses and 10 CFR part 52 COLs to ensure that they promptly notify the NRC of successful completion of power ascension testing. Upon successful completion of testing and the required notification to the NRC, the power reactor would be fully operational. The annual fee assessment for 10 CFR part 50 power reactor licensees and 10 CFR part 52 COL holders would therefore begin on the date of the licensee's written notification of successful completion of power ascension testing.

Accordingly, the NRC is amending § 171.15(a) so that annual fees commence not upon issuance of the operating license for 10 CFR part 50 power reactors and issuance of the § 52.103(g) finding for 10 CFR part 52 COL holders, but upon written notification to the NRC of successful completion of power ascension testing and making conforming changes to § 171.3, “Scope,” and § 171.17, ”Proration.” The NRC finds this rule change amendment to be reasonable, fair, and equitable, and supported by the public comments the NRC received on PRM-171-1 and on the proposed rule. Finally, the NRC will consider expanding this approach to other 10 CFR part 50 licensees in a future rulemaking.

FY 2020—Administrative Change

The NRC is making one administrative change:

Add a footnote to the table in § 171.16(d) for additional clarity.

The NRC is adding a footnote to the table in § 171.16(d) to clarify that licensees that are subject to annual fees under fee categories 4.A., 4.B. or 4.C. are not subject to annual fees under 3.N. for waste disposal services authorized on the same license.

Update on the Fees Transformation Initiative

In the Staff Requirements Memorandum, dated October 19, 2016, (ADAMS Accession No. ML16293A902) for SECY-16-0097, “Fee Setting Improvements and Fiscal Year 2017 Proposed Fee Rule,” (ADAMS Accession No. ML16194A365), the Commission directed staff to explore, as a voluntary pilot, whether the NRC could establish a flat fee structure for routine licensing matters in the area of uranium recovery, and to accelerate the process improvements for setting fees, including the transition to an electronic billing system. In addition, the Commission also directed the staff to begin the fees transformation activities listed in SECY-16-0097 as “Process Changes Recommended for Future Consideration—FY 2018 and Beyond,” which includes one remaining item to complete regarding the rulemaking to update the NRC's small business size standards in § 2.810, “NRC Size Standards.”

With respect to the uranium recovery flat fee pilot initiative, the NRC explored the feasibility of establishing a flat fee structure for routine licensing matters and inspection activities. The NRC provided a report to Congress on January 9, 2020, describing the results of the pilot initiative and the decision to maintain the current NRC fee billing structure for 10 CFR part 170 fees for service for uranium recovery licensing matters. For more information, the report to Congress can be found at ADAMS Accession No. ML20010D684.

With respect to the NRC's transition to an electronic billing system (eBilling), eBilling went live with a phased implementation on October 1, 2019, which included 9 licensees with 65 dockets. As of May 12, 2020, eBilling currently has 111 licensees with 381 dockets enrolled. Outreach to additional licensees will continue throughout FY 2020 in order to increase enrollment and ensure awareness.

Finally, in order to obtain sufficient information to update the NRC's small business size standard in § 2.810, the NRC conducted a financial survey of materials licensees to determine whether changes to the size standards are needed. The NRC published a document in the Federal Register (85 FR 6225; February 4, 2020) announcing the survey, and requested response by due date of April 30, 2020. The survey results will be analyzed to determine if changes are needed to the current nuclear industry-specific size standards in § 2.810.

For more information, please see our fees transformation accomplishments schedule, located on our license fees website at: https://www.nrc.gov/about-nrc/regulatory/licensing/fees-transformation-accomplishments.html.

IV. Public Comment Analysis

Overview of Public Comments

The NRC published a proposed rule on February 18, 2020 (85 FR 9328) and requested public comment on its proposed revisions to 10 CFR parts 170 and 171. By the close of the comment period, the NRC received eight written comment submissions on the FY 2020 proposed rule. In general, the commenters were supportive of the specific proposed regulatory changes. Some commenters expressed concerns about broader fee-policy issues related to transparency, the overall size of the budget, fairness of fees, and budget formulation.

The commenters are listed in Table XIX.

Information about obtaining the complete text of the comment submissions is available in Section XIV, “Availability of Documents,” of this document.

V. Public Comments and NRC Responses

The NRC has carefully considered the public comments received on the proposed rule. The comments have been organized by topic. Comments from multiple commenters raising similar specific concerns were combined to capture the common essential issues raised by the commenters. Comments from a single commenter have been quoted to ensure accuracy; brackets within those comments are used to show changes that have been made to the quoted comments. The NRC responses are preceded by a short summary of the issues raised by the commenters.

A. Budget Formulation

Comment: “The NRC staff provided a very thorough public briefing about the proposed fee rule on March 5, 2020, including the business line budget utilization of the $40M in carryover funds. Approximately 50 [percent] of the carryover funding was utilized in the Operating and New Reactor business lines, consistent with the business line budgeting information provided in the briefing. However, the fee class budget distribution provided in the briefing shows 86 [percent] of the fee/receipt recoverable budget is allocated to Power Reactors. The Federal Register publication of the proposed fee rule notes that the $40M in carryover results in reduced fees to licensees. In light of the NRC's distribution of its fee-recoverable appropriation, how did the NRC determine the percentage of carryover that would be applied to reduce operating reactor fees?” (Exelon)

Response: One commenter requested that the NRC explain its process to determine the percentage of carryover that was applied to reduce the operating power reactors fees. There is not a separate process to determine the percentage of carryover that would be applied to reduce the fee classes budgeted resources. When determining how to allocate the $40.0 million in carryover funds based on Congressional direction, the NRC used its appropriation funding categories—or control points—and allocated the carryover funds to appropropriate funding categories relative to the percentages of total enacted funding. This allocation was performed without distinguishing the specific fee classes during this process. The fee class distribution is determined as part of the normal fee allocation process after budget allocations are determined. During the March 5, 2020, public meeting, the NRC discussed the allocation process and demonstrated the reconciliation of the FY 2020 business line budgets to the specific fee classes. To increase transparency, NRC has included these reconciliations in the work papers for this final rule. In addition, the work papers include a chart, illustrating the utilization of carryover funding in FY 2019 and FY 2020 by business line and the subsequent allocations for the development of the fee rule.

No changes were made to the final rule as a result of this comment.

Comment: “Related to the use of carryover funds, the $40M amount is very large by historical standards, the FY2019 carryover was $20M. Again, referencing the business line carryover utilization provided in the March 5 briefing, $13M, approximately one third of carryover funding was used to defray corporate support costs. NRC has struggled to contain corporate support costs and is required under NEIMA to reduce these costs to less than 30 [percent], to the maximum extent practicable. Exelon is concerned that without continued use of carryover funds in future years, corporate support will drive licensee fees higher, with uncertain safety benefit. We request that the work papers address the potential for increased industry fees to cover NRC corporate support.” (Exelon)

Response: The agency remains focused on innovative strategies that result in savings, while not jeopardizing the corporate activities necessary to accomplish the agency's mission. The NRC has made significant progress in reducing corporate support in recent years. When compared to the FY 2014 enacted budget, the FY 2021 budget request for corporate support represents a decrease of $74.7 million, or approximately 22 percent. It should be noted that the NRC's annual fee rule and supporting work papers are published so that the public and licensees can understand how fees are calculated based on the budget authority enacted for the current fiscal year, not future fiscal years. The FY 2021 Congressional Budget Justification (CBJ), alternatively, provides the agency's explanation and justification for the resources being requested for the next fiscal year to allow the agency to complete its mission, the CBJ provides the reasoning for changes in the agency resource requests, and is the appropriate source for the agency's explanation and justification for the Corporate Support budget. The NRC's goal is to provide transparency in the fee rule and work papers between fees at the final appropriated budget requirements.

No changes were made to the final rule as a result of this comment.

B. Public Participation in Budget Formulation

Comment: Two commenters expressed a desire for industry to be involved with the NRC directly during the development of the NRC's budget to better determine the sufficiency of the budget and to accurately determine the necessary annual fees. They emphasized the need for the NRC staff to work with industry in an open and transparent fashion regarding the prioritization of annual fee expenditures and the utilization of indirect resources. (NEI and WEC)

Response: The NRC seeks information from licensees and other entities relevant to projected workload, through public meetings and other forms of public outreach, to better inform NRC's budget formulation workload assumptions. However, the NRC is an independent safety regulator, and it would not be appropriate for regulated entities, non-government organizations, and members of the public to be involved in the NRC's budget formulation. In addition, OMB establishes the Executive Branch budget process through OMB Circular No. A-11, “Preparation, Submission, and Execution of the Budget.” Section 22.1 of OMB Circular No. A-11 requires that pre-decisional budget deliberations remain confidential until the release of the CBJ.

No changes were made to this final rule as a result of these comments.

C. Work Papers

Comment: “In prior year comments, we have identified a lack of transparency in the basis for the budget as an area of concern. We acknowledge that several steps have been taken to improve both the types and clarity of information provided in the fee rule work papers and Congressional Budget Justification. There has been a marked improvement in the level of detail provided to stakeholders on the NRC budget, however, we urge that additional steps be taken. In particular, we believe that additional detail should be provided on budgeted work activities, including a level of planned effort for each activity, how this level compares with the prior year, and the rationale for the change. Such detail would enable licensees to better evaluate and understand significant budget changes. Additional information should be provided to enable a better understanding of which actions are recovered through service fees and which actions are recovered through annual fees. We also believe that stakeholders would benefit greatly from an expansion on the narrative discussion in the fee rule work paper explaining significant increases/decreases in product line budget items.” (NEI)

Response: The fee rule and its supporting work papers, are published so the public and licensees can understand how fees are determined for a fee class and a fee category. Consistent with requirements of OBRA-90, license fees are calculated by business lines, product lines, and products based on the budget authority enacted for the current fiscal year. The NRC provides those business lines, product lines, and products in the fee rule work papers. The CBJ provides the agency explanation and justification for the resources being requested for the budget year, including increases and decreases, and the reason for changes in the agency budget request as compared to the prior year, at the business line and product line levels; it also includes the prior year actual amounts at the business line and product line levels.

The commenter is correct that the work papers currently do not distinguish by specific budget line items which fees are recovered through user and annual fees. The fee rule work papers do not draw this distinction because it has been impractical for the NRC to determine in advance what precise percentage of fees for a given business line will be recovered through 10 CFR part 170 user fees versus 10 CFR part 171 annual fees. With respect to 10 CFR part 170 user fees, the NRC staff time spent on licensing and inspection actions is subject to change, depending on the novelty and complexity of the license application under review or the facility being inspected. Similarly, with respect to 10 CFR part 171 annual fees, the nature of the generic research, safety, environmental, or safeguards activities also may vary considerably, given changes in Commission priorities, external events, interactions with Agreement States, other Federal agencies, state, local and tribal governments, the regulated industry, and members of the public.

The NRC notes that the CBJ includes a statement in each business line chapter to indicate which product lines impact fees for services versus annual fees. For all the business lines, except for the nuclear materials users business line, typically resources budgeted in the Licensing and Oversight Product Lines typically affect fees for services, and all other resources affect annual fees. For the nuclear materials users business line, almost all budgeted resources impact annual fees. The NRC is planning for the implementation of NEIMA in FY 2021 and is considering adding additional detail in the fee rule and associated work papers to enhance the transparency of how fees are determined.

The NRC disagrees with the comment recommending that NRC expand the narrative to explain the significant increases and decreases. The NRC has provided improved and detailed explanation in the fee rule of the changes in budgetary resources, changes to 10 CFR part 170 estimated billings, and the impact on annual fees. The budgetary resources by each fee class by business line, product line, and product in the work papers, which show the specific fee class budget increases and decreases. For example, in the FY 2020 proposed fee rule the operating power reactors fee class displayed numerous activities within the licensing and oversight product lines (i.e., delayed construction and operating license application review activities), that affected the fee class budget and caused it to decline from the previous year. To increase transparency, the NRC incorporated a reconciliation of the FY 2020 CBJ resources by business line to the associated fee class in the FY 2020 proposed fee rule work papers. For the first time, stakeholders can trace the CBJ business line budgets to the resources recovered within each fee class budget by product line.

No changes were made to this final rule as a result of this comment.

Comment: “The work papers supporting the FY2020 proposed rule show a detailed breakdown of the products and product lines included in the calculation of the Part 171 Operating Power Reactors annual per-reactor fee, including significant amounts for various research activities. Research for Operating Reactors is shown as $24M in contract dollars, and 128 FTEs. While some research appears explainable for the existing fleet of reactors, e.g., “Aging & Materials,” other descriptors are more cryptic, e.g., “Engineering Research,” “Systems Analysis,” or “Risk Analysis” ($16M contract dollars budgeted for these three.) And others that might appear applicable, e.g., “Digital I&C” have no resources budgeted. It would be helpful to have in the work papers, perhaps as a separate paragraph or table in the Operating Power Reactors section, a brief description of the major efforts for each research Product, the goal of the research, expected completion date, safety issue to be resolved by the research, whether related to specific licensing actions, etc., so that Licensees and the public have confidence that these research dollars are being used to directly support the NRC mission.” (Exelon)

Response: The commenter is requesting additional detail in the work papers in order to better understand the specific budgeted research efforts. The CBJ is the appropriate source for the agency's explanation and justification for the agency's research budget, not the fee rule, which implements the final results of the budget process. The NRC's goal is to provide transparency in the fee rule and work papers between fees at the final appropriated budget requirements. The fee rule and the supporting work papers are published in order for the public and licensees to understand how fees are determined for a fee class and a fee category.

With respect to the commenter's request to expand the fee rule work papers to provide additional information on all research activities with the specific goal of the research, expected completion date, safety issue to be resolved by the research, and whether it is related to specific licensing actions, the NRC does not believe such a change to the fee rule work papers is necessary. The CBJ, which serves a different purpose than the fee rule work papers, provides the overview of the specific research activities being conducted by the NRC during FY 2020. Some examples of NRC research activities discussed in the CBJ include but are not limited to: Seismic and structural stability; probabilistic risk assessment; digital instrumentation and controls and electrical systems; accident tolerant fuel; fuel performance research; and materials performance. Additional information on the regulatory research program, including NUREG-1925, Revision 4, “Research Activities FY 2018-FY 2020,” and the “FY 2020-22 Planned Research Activities,” are available on the NRC's public website at https://www.nrc.gov/about-nrc/regulatory/research.html. Additional information regarding the costs associated with research can be derived by comparing the work papers from the proposed fee rule to the final fee rule, which would allow the impact associated with budget changes, including the use of carryover, to be identified between fiscal years. Work papers for the proposed and final fee rules for the last several years can be readily accessed at https://www.nrc.gov/about-nrc/regulatory/licensing/fees.html.

No changes were made to this final rule as a result of this comment.

Comment: “As Exelon has noted in reviewing proposed fee rules for prior years, this trade-off between Part 170 and Part 171 fees divorces the reactor fee from any actual health and safety benefit to be achieved via the Part 171 fee collection. That is, an increase in per-reactor fee does not necessarily mean greater NRC focus is needed to ensure safety. Exelon notes that under [NEIMA], the reactor fee is limited “to the maximum extent practicable.” Exelon recommends that the work papers address this aspect of the fees so that safety benefit derived from increased Part 171 fees can be better understood. If the fee reflects only the budgeting process and not any change in the need for NRC oversight, that clarity would also be useful for the industry in prioritizing resource allocations.” (Exelon)

Response: The NRC's annual budget request reflects the agency's continued commitment to protecting public health and safety and ensuring the long-term safety and security of nuclear power facilities and nuclear materials, which includes mission-direct, mission-indirect, and agency-support resources, as well as resources that are excluded from the NRC's fee recoverable budget.

Beginning in FY 2021, the NRC will be required to collect 100 percent of its annual budget authority (less certain excluded items), to the maximum extent practicable. Additionally, in accordance with Section 102(b)(3)(B)(i) of NEIMA, the operating power reactors fee class annual fee, to the maximum extent practicable, shall not exceed the operating power reactor annual fee amount established in the FY 2015 final fee rule, adjusted for inflation. On its own initiative, the NRC included an estimate of the operating power reactors annual fee in Appendix C, Estimated Operating Power Reactors Annual Fee,” of the FY 2021 CBJ, with the intent to increase transparency. The NRC developed this estimate based on the NRC staff's allocation of the FY 2021 budget request to fee collections under 10 CFR part 170, and allocations within the operating power reactors fee class under 10 CFR part 171. In addition, the estimated annual fee assumes 93 operating power reactors in FY 2021 and applies various data assumptions from the FY 2019 final fee rule. Collectively, these actions help mitigate impacts on the remaining licensees from licensees that leave a fee class by helping the NRC continue to develop budgets that account for regulating a fee class with a declining number of licensees. Though the FY 2021 estimated operating power reactor fee class annual fee is included in the FY 2021 CBJ, it is subject to changes in those data assumptions as the NRC will conduct an annual rulemaking for FY 2021 fees by publishing a proposed and final rule in order to assess fees. Fee rule estimates during budget formulation are subject to the changes that will occur in the two-year interval between formulation and final appropriation impacting the fee rule.

The commenter is correct that the NRC's FY 2020 work papers do not include the allocation of the FY 2021 budget. The NRC's fee rule and supporting work papers are published in order for the public and licensees to understand how fees are calculated based on the budget authority enacted for the current fiscal year and not future fiscal years. The FY 2021 CBJ, which serves a different purpose than the fee rule work papers, provides the agency's explanation and justification for the resources being requested for the next fiscal year to allow the agency to complete its mission, and it provides the reasoning for changes in the agency resource requests. The NRC is planning for the implementation of NEIMA in FY 2021, and strives to enhance transparency for the annual fee rule and supporting work papers each year.

No changes were made to this final rule as a result of this comment.

D. Operating Reactors Decline in the Budget and 10 CFR Part 170 Estimated Billings

Comment: Several commenters expressed concern regarding the declining fraction of fees recovered under 10 CFR part 170 (service fees) relative to 10 CFR part 171 (annual fees), as well as the NRC's overall budget for the operating power reactors fee class. The commenters noted that these fees were being borne by a decreasing number of facilities with a decreasing number of licensing actions and completion of NRC reviews and certifications. The commenters noted that the high percentage of activities covered by annual fees places an increased importance on transparency of indirect services covered under 10 CFR part 171 fees, and they encourage a continued focus on enhancing transparency. (NEI and Exelon)

Response: The relationship between 10 CFR part 170 (service fees) relative to 10 CFR part 171 (annual fees) is workload driven. The activities covered by 10 CFR part 171 annual fees are necessary for NRC to accomplish its safety mission as described and justified in the CBJ. The amount of user fees collected under 10 CFR part 170 depends on a number of different factors including the professional hourly rate, licensee and applicant decisions to pursue licensing actions, and the number of hours necessary to resolve any licensing actions. Due to OBRA-90 requirements, examining changes in the 10 CFR part 170 fees and the 10 CFR part 171 fees separately may not account for the overall decreases in the fee class budget or the realized efficiencies. Over the last seven years, the fee class budget for operating power reactors has decreased from $734.7 million in FY 2013 to $623.9 million in FY 2020. This represents a reduction of $110.8 million, or 15 percent as a result of the decreasing number of nuclear power reactor licensees, application delays and withdrawals, reduced license amendments, efficiencies gained in office mergers, and long-term project completions.

Over this same period, the 10 CFR part 170 estimated billings for the operating power reactors fee class have declined from $303.8 million in FY 2013 to $186.7 million in FY 2020, which represents a decline of $117.1 million or 38.5 percent. These changes in the budgetary resources and the 10 CFR part 170 estimated billings, ultimately adjust the amount of fee recoverable resources that is required to be collected through 10 CFR part 171 annual fees. As compared to FY 2013, the operating power reactors fee class annual fee has increased from $424.2 million in FY 2013 to $439.0 million in FY 2020, which represents an increase of $14.8 million or 3.5 percent.

With respect to enhancing transparency, the NRC continues to review its budget and will pursue additional efficiency improvements to ensure that its budgetary request accurately reflects the anticipated workload. The NRC considers projected operating power plant closures and other external factors when estimating workload changes in a manner that allows the agency to meet its statutory responsibilities as the industry changes. However, a reduction in the budget is not linearly proportional as there is a cost for the infrastructure that must be maintained independent of the number of operating power reactors in the fleet.

The implementation of NEIMA in FY 2021, will include a cap on annual fees for operating reactors; the NRC continues to evaluate resource requirements and adjustments that can be made to refine the operating power reactors budget. Finally, the NRC remains committed to providing enhanced transparency throughout the development of the annual fee rule and supporting work papers.

No changes were made to this final rule as a result of these comments.

E. Fairness of Fees

Comment: “The work papers also show that approximately 17% of the Nuclear Reactor Safety program budget used in determining the annual Operating Reactor fee comes from the New Reactors product line. Exelon suggests that the new reactor budget be broken out separately, to be paid by those entities pursuing new reactors. Alternately, the work papers should clarify in some detail how new reactor spending benefits the operating reactor fleet.” (Exelon)

Response: The NRC disagrees with the proposed recommendation. To the extent that the NRC's reactor safety work directly benefits a licensee or applicant, the NRC then assesses 10 CFR part 170 user fees upon that licensee or applicant. As a result, existing operating reactor licensees are not paying any fees for new reactor work that directly benefits an entity engaged in new reactor activities. As for the portion of the new reactor work that is not collected through 10 CFR part 170 user fees, OBRA-90, as amended, requires that the NRC allocate the costs for this work fairly and equitably. Because the NRC's generic new reactor activities yield indirect benefits for existing operating reactor licensees, the NRC's current system of allocating all operating reactor costs to existing licensees satisfies OBRA-90's requirements.

While there are generic activities that may preferentially benefit new reactor vendors or licensees, there are activities that appear to be focused on new reactors but have a direct benefit to the operating power reactor licensees. For example, if an existing licensee sought to obtain NRC approval for a design change to a safety significant structure at an operating plant, then the NRC may use guidance that was developed for new reactor applications to analyze the design change. One example is the vendor quality assurance inspection program that develops and maintains the infrastructure for vendor inspections and quality assurance reviews supporting both new and operating reactors. While inspections and allegations specific to operating reactors are funded by operating reactors, many of the vendor inspections and allegations funded by the new reactor program are at vendors that also supply parts for operating reactors. Moreover, entities holding licenses for currently operating reactors may also be, either now or in the future, applicants for new nuclear power plant licenses. Finally, all power plant licensees indirectly benefit from rulemaking or other generic activities that enhance and develop the new reactor licensing framework because these generic activities help to establish and maintain the regulatory infrastructure at the NRC. This provides existing nuclear reactor licensees with regulatory predictability that is useful for business planning purposes.

Along these same lines, the NRC performs generic activities related to license renewal. These costs are spread among all holders of power reactor operating licenses without regard to whether the operating license holder intends to seek renewal. This is because a stable and efficient regulatory regime for license renewal indirectly benefits all existing power plants even if an existing power reactor has no immediate plans to seek license renewal. The same is true for new reactor licensing activities.

Ultimately, identification of fee classes is a matter of drawing practical distinctions. By virtue of being a generic activity without a specific, concrete beneficiary, all the activities that fall in the 10 CFR part 171 annual fee category could be theoretically parsed into an almost infinite amount of fee classes. For example, if the NRC were to base fees on distinctions such as whether generic work benefited boiling-water reactors versus pressurized-water reactors or coastal versus inland reactors, the exercise would result in distinctions that are both artificial and unduly burdensome from an administrative and recordkeeping standpoint. Therefore, the NRC's decision to draw the fee class line in a way that encompasses generic new reactor work satisfies OBRA-90's requirement that costs be allocated fairly and that, “[t]o the maximum extent practicable, the charges shall have a reasonable relationship to the cost of providing regulatory services.”

No change was made to this final rule in response to this comment.

F. Fuel Facilities Matrix

Comment: “The Metropolis facility has been secured in an idle state due to market conditions. The idle state conditions prohibits the production or the creation of liquid UF6 per Honeywell Request for Relaxation Security Order dated April 30, 2018. The NRC approved the request for Relaxation of Security Order in a letter dated March 11, 2019, due to the removal of UF6 from the process equipment. NRC recently acknowledged an 80% reduction in inspection effort due to the idle condition as stated in the NRC Inspection Report 4-339/2020-005 Honeywell Metropolis Works License Performance Review dated March 2, 2020. In the current idle state, MTW will not have liquid UF6 on site, or implement safeguards related to liquid UF6. Therefore, MTW asks that the effort factor for liquid UF6 be revised from 5 to 0 and the safeguards factor for liquid UF6 also be revised from a 5 to 0 to appropriately reflect the effort during the current idle state condition.” (MTW)

Response: Currently, there is one uranium conversion facility, and it is in a “ready-idle” status with no processing operations. The NRC believes that this facility will remain in “ready-idle” position for FY 2020 and will need to be reassessed on an annual basis. Regulatory oversight of processing operations have been curtailed while the operations are shut down. Therefore, the safety and safeguards factors for “Liquid UF6 processing at Uranium Conversion facilities” in the effort factors matrix have been reduced from 5 to 0 to reflect the curtailed regulatory oversight of these processes.

G. Fuel Facilities Fee Class

Comment: “We note that annual fees for Category I Fuel Cycle Facilities (listed under Category “High-Enriched Uranium Fuel”) still exceed operating power reactor fees by roughly half a million dollars ($4.9M vs. $4.5M, respectively). We continue to encourage the NRC to adjust the Category I Fuel Cycle Facility regulatory effort, and in turn fees, to be commensurate with the facility risk profile.” (NEI)

Response: The resources budgeted for each business line reflect the regulatory effort. In this final rule the total required annual fee recovery for the operating power reactor business line is $439.0 million, and the total annual fee recovery for the fuel facility business line is $18.0 million. The lower amount is commensurate with the lower risk at fuel facilities. This amount must be recovered from the 7 existing fuel facilities in the business line. For the Category I fuel facilities, the processes in the matrix are surrogates for the actual processes because the actual processes are classified.

No changes were made to this final rule because of this comment.

Comment: Two commenters welcomed the reductions in the fuel facilities fee class budgetary resources and annual fees in FY 2020, but felt that it is imperative that the OCFO staff take into consideration the Office of Nuclear Materials Safety and Safeguards' (NMSS) ongoing Fuel Cycle Smarter Program initiative, which will likely identify further reductions in FY 2021 fee-billable inspection hours. For planning purposes, a commensurate business line reduction in FY 2021 should closely reflect any final “Smarter Programs” inspection decisions (final reports are anticipated in Spring 2020). In the absence of such adjustments, fuel cycle facilities will experience an unnecessary increase in annual fees for FY 2021. (NEI and WEC)

Response: The fuel facilities business line is responsible for ensuring the safety and security of fuel cycle and greater than critical mass facilities. The business line leads the licensing and oversight of these facilities, as well as domestic material control and accounting and international safeguards implementation activities for the NRC. The business line also supports rulemaking and environmental review activities for fuel facilities. The NRC has taken steps to right-size the fuel facilities budget to ensure that it reflects the reduced workload in the business line. A peak workload was experienced in FY 2012 and since then, the fee class budget has decreased from $54.4 million in FY 2012 to $18.0 million in FY 2020. This represents a reduction of $36.4 million, or 67 percent within the fee class budget. The FY 2020 fuel facilities fee class budget decreased primarily due to an expected decline in license renewal applications, the decrease in the number of license amendments, the termination of the MOX Fuel Fabrication Facility construction authorization, and efficiencies gained because of changes to the Fuel Facilities Inspection Program, and workload projections.

In a public meeting conducted on March 5, 2020, on the FY 2020 proposed fee rule, the NRC provided an overview of the fuel facilities business line budget, major activities, the budget planning process (e.g., workload forecasting, types of work, and inspection activities), the reconciliation from the fuel facilities business line to the fee class budget, and the five-year trend of 10 CFR part 170 user fees and 10 CFR part 171 annual fees. Slides from this public meeting are available at ADAMS Accession No. ML20064G525.

Regarding the assertion that the NRC should reduce the fuel facilities business line budget, the NRC continues to actively evaluate resource requirements, both in terms of overall budget numbers and FTEs, to address changes that occur between budget formulation and execution. The NRC will continue to assess resource requirements and evaluate programmatic efficiencies that could result in additional resource reductions, but a reduction in the budget is not linearly proportional as there is a cost for the infrastructure that must be maintained independent of the number of operational fuel facilities.

In this final rule, the fees assessed to the licensees and applicants by the NRC must conform to OBRA-90, which requires the NRC to collect approximately 90 percent of its FY 2020 budget authority (less certain excluded items) through both user fees and annual fees. The NRC can assess these annual fees only to licensees or certificate holders, and the annual fee schedule must be fair and equitably allocate annual fees among the NRC's many licensees. To ensure compliance with OBRA-90, the NRC makes continual organizational improvements to align the resources needed to support its regulatory activities. These actions help mitigate impacts on the remaining licensees from licensees that leave a fee class by helping the NRC continue to develop budgets that account for regulating a fee class with a declining number of licensees.

Beyond FY 2020, the NRC will continue to look for efficiencies within the fuel facilities program. Going forward, the fuel facilities business line is focusing efforts to align the agency's program of work in the fuel facilities area to workload projections and continuing to risk-inform the regulatory framework for these activities while maintaining adequate protection consistent with our principles of good regulation.

On April 26, 2019, the NRC created two working groups tasked with building smarter Fuel Cycle licensing and oversight programs. The working groups were tasked with conducting a holistic assessment of the fuel cycle licensing and oversight programs for the purpose of improving the effectiveness and efficiency of the programs. The working groups included experienced supervisors and staff members looking for areas of transformation and innovation while adhering to the key principles of good regulation that guide the manner in which we conduct our work and make decisions.

The NRC believes that the implementation of the recommendations resulting from this effort will ensure focus on the areas of greatest safety benefit using the appropriate level of effort. Implementation of the recommendations will begin in FY 2021 and the results will be reflected in future rulemakings.

No changes were made to this final rule because of these comments.

H. Uranium Mill Tailings Radiation Control Act (Work Papers)

Comment: “ The U.S. Department of Energy (DOE) has reviewed the proposed 10 CFR parts 170 and 171 fee schedule for FY 2020. The DOE finds that the basis for the total annual fee amount and the level of effort to support the general licenses for [UMTRCA] sites is not presented in the proposed rule or associated work papers. Additionally, the bases for allocation percentages for DOE and other uranium recovery licensees and the generic/other uranium recovery costs in the proposed rule and work papers are not presented. The DOE requests that the US NRC clarify the rationale for the various fee components that are used to determine the total charge. This will help DOE evaluate whether the proposed NRC scope is consistent with anticipated DOE activities and establish the basis for DOE's estimate of annual uranium licensee fees in its budget request.” (DOE)

Response: The NRC described the overall methodology for determining fees for uranium recovery facilities, including DOE, in the 2002 fee rule (67 FR 42625; June 24, 2002), and the NRC continues to use this methodology. As the NRC explained in the FY 2020 proposed fee rule, the NRC recovers fees from DOE through both user fees charged under 10 CFR part 170 for specific UMTRCA oversight activities and annual fees charged under 10 CFR part 171 for generic and other costs related to UMTRCA and other uranium recovery activities. As shown in the work papers referenced in the proposed fee rule, the NRC calculated the total amount of budgeted resources for UMTRCA activities related to DOE sites in the FY 2020 budget by computing the cost of staff hours budgeted to conduct the work (in terms of full-time equivalent, or FTE) and the budgeted contract costs. The total amount of budgeted resources was reduced by the amount expected to be recovered by 10 CFR part 170 user fees for site-specific UMTRCA activities. The NRC estimated the amount of 10 CFR part 170 user fees by analyzing billing data and the actual contractual work charged to DOE for the previous four quarters. The estimate, therefore, reflects any recent reductions in NRC oversight activities. The remainder of the UMTRCA budgeted amount related to DOE sites is charged to DOE for generic activities. In addition to those generic costs, DOE was charged for 10 percent of the overall generic costs attributable to the uranium recovery program. In other words, the DOE fee includes the costs of generic activities related to DOE sites and 10 percent of the overall generic costs attributable to the uranium recovery program. The remaining 90 percent of the overall generic costs is charged to the other members of the uranium recovery fee class. The work papers also provided information on all the values of the effort/benefit factors used in the uranium recovery matrix for FY 2020.

No changes were made to this final rule because of this comment.

I. Small Entity Size Standards

Comment: “Regarding small entity size standards, the NRC should consider establishing lower licensing fees by creating one or more additional ranges between the $520,000 and $7,000,000 gross annual receipts range. A fee rate schedule with more steps for small businesses would help reduce the license fee burden on the smaller entities and address small business concerns.” (RE)

Response: To reduce the significance of the annual fees on a substantial number of small entities, the 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. Because the NRC's methodology for small entity size standards has been approved by the Small Business Administration, the NRC did not modify its current methodology for this rulemaking. However, as one of the ongoing Fees Transformation initiatives, the NRC conducted a financial survey of materials licensees to determine whether changes to the size standards are needed. The NRC published a document in the Federal Register (85 FR 6225; February 4, 2020) announcing the survey, with a requested due date of April 30, 2020, to complete the survey. The survey results will be analyzed to determine if changes are needed to the current NRC nuclear industry-specific small entity size standards in § 2.810.

No change was made to this final rule in response to this comment.

J. Comments Generally Supporting Actions of the Agency

Several commenters expressed comments generally in favor of actions that the agency is taking with respect to fees, billing, and other aspects of the fee rule process. Comments expressed support for the public meetings NRC held on the proposed fee rule; improved efficiency and clarity of the fee and invoicing process; NRC's eBilling system; the policy change to modify the timing of when annual fees commence for power reactor licensees; actions to decrease and right-size the fuel facilities budget to right-size the budget to reflect a reduced workload; and other improvements made as part of the Fees Transformation Initiative. No change was made to this final rule in response to this comment.

K. Comments on Matters Not Related to This Rulemaking

Several commenters raised issues outside the scope of the FY 2020 fee rule. Commenters raised concerns with the agency's budgeting process and requested public participation on the agency's budget formulation process. A few commenters requested expediting efficiency efforts and engaging industry regarding additional efficiencies and risk-informing the current regulatory program. These matters are outside the scope of this final rule. The primary purpose of the rule is to update the NRC's fee schedules to recover approximately 90 percent of the NRC's budgeted authority for the current fiscal year, and to make other necessary corrections or appropriate changes to specific aspects of the NRC's fee regulations in order to ensure compliance with OBRA-90.

The NRC understands the importance of examining and improving the efficiency of its operations and the prioritization of its regulatory activities. Accordingly, the NRC has undertaken, and continues to undertake, a number of significant initiatives aimed at improving the efficiency of NRC operations and enhancing the agency's approach to regulating. Though comments raising these issues are not within the scope of this final rule, the NRC will consider this input in its future program operations.

VI. Regulatory Flexibility Certification

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the NRC has prepared a regulatory flexibility analysis related to this final rule. The regulatory flexibility analysis is available as indicated in Section XIV, Availability of Documents, of this document.

VII. Regulatory Analysis

Under OBRA-90, the NRC is required to recover approximately 90 percent of its budget authority in FY 2020. The NRC established fee methodology guidelines for 10 CFR part 170 in 1978, and established additional fee methodology guidelines for 10 CFR part 171 in 1986. In subsequent rulemakings, the NRC has adjusted its fees without changing the underlying principles of its fee policy to ensure that the NRC continues to comply with the statutory requirements for cost recovery in OBRA-90.

In this final rule, the NRC continues this longstanding approach. Therefore, the NRC did not identify any alternatives to the current fee structure guidelines and did not prepare a regulatory analysis for this final rule.

VIII. Backfitting and Issue Finality

The NRC has determined that the backfit rule, § 50.109, does not apply to this final rule and that a backfit analysis is not required. A backfit analysis is not required because these amendments do not require the modification of, or addition 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.

IX. Plain Writing

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act, as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31885).

X. National Environmental Policy Act

The rule is limited to amending the NRC's administrative requirements in 10 CFR parts 170 and 171. Therefore, this action is categorically excluded from needing environmental review, as described in § 51.22(c)(1). Consequently, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

XI. Paperwork Reduction Act

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

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

XII. Congressional Review Act

This final rule is a rule as defined in the Congressional Review Act of 1996 (5 U.S.C. 801-808). The Office of Management and Budget has found it to be a major rule as defined in the Congressional Review Act.

XIII. Voluntary Consensus Standards

The National Technology Transfer and Advancement Act of 1995, Public Law 104-113, requires that Federal agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless the use of such a standard is inconsistent with applicable law or 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 2020, as required by OBRA-90. This action does not constitute the establishment of a standard that contains generally applicable requirements.

XIV. Availability of Guidance

The Small Business Regulatory Enforcement Fairness Act 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. The NRC, in compliance with the law, prepared the “Small Entity Compliance Guide” for the FY 2019 proposed fee rule. The NRC plans to continue to use this compliance guide for FY 2020 and has relabeled the compliance guide to reflect the current fiscal year. The FY 2020 version of the compliance guide is available as indicated in Section XIV, Availability of Documents, of this document. The next compliance guide will be developed when the NRC completes the next small entity biennial review in FY 2021.

XV. Availability of Documents

The documents identified in the following table are available to interested persons through one or more of the following methods, as indicated.

List of Subjects

10 CFR Part 170

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

10 CFR Part 171

• Annual charges
• Approvals
• Byproduct material
• Holders of certificates
• Intergovernmental relations
• Nonpayment penalties
• Nuclear materials
• Nuclear power plants and reactors
• Registrations
• Source material
• Special nuclear material

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 170 and 171:

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

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

Authority: Atomic Energy Act of 1954, secs. 11, 161(w) (42 U.S.C. 2014, 2201(w)); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 42 U.S.C. 2214; 31 U.S.C. 901, 902, 9701; 44 U.S.C. 3504 note.

2. In § 170.20, remove the dollar amount “$275” and add in its place the dollar amount “$279”.

3. In § 170.21, in the table, revise the entry for “K. Import and export licenses” and footnotes 1 and 6 to read as follows:

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

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: Atomic Energy Act of 1954, secs. 11, 161(w), 223, 234 (42 U.S.C. 2014, 2201(w), 2273, 2282); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 42 U.S.C. 2214; 44 U.S.C. 3504 note.

6. Revise § 171.3 to read as follows:

7. In § 171.15, revise paragraphs (a), (b)(1), (b)(2) introductory text, (c)(1), (c)(2) introductory text, (d)(1) introductory text, (d)(2) and (3), and (f) to read as follows:

8. In § 171.16, revise paragraphs (c), (d), and (e) introductory text to read as follows:

9. In § 171.17, revise paragraphs (a) introductory text and (a)(1) and (2) to read as follows: