Revision of Fee Schedules; Fee Recovery for Fiscal Year 2016

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Proposed rule.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is proposing to amend the licensing, inspection, special project, and annual fees charged to its applicants and licensees and, for the first time, the NRC is proposing to recover its costs when it responds to third-party demands for information in litigation where the United States is not a party (“Touhy requests”). These proposed 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.

DATES:

Submit comments by April 22, 2016. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date. Because OBRA-90 requires the NRC to collect the fiscal year (FY) 2016 fees by September 30, 2016, the NRC will not grant any requests for an extension of the comment period.

ADDRESSES:

You may submit comments by any of the following methods (unless this document describes a different method for submitting comments on a specific subject):

• Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0223. 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 proposed rule.
• Email comments to: Rulemaking.Comments@nrc.gov. If you do not receive an automatic email reply confirming receipt, then contact us at 301-415-1677.
• Fax comments to: Secretary, U.S. Nuclear Regulatory Commission at 301-415-1101.
• Mail comments to: Secretary, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, ATTN: Rulemakings and Adjudications Staff.
• Hand deliver comments to: 11555 Rockville Pike, Rockville, Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal workdays; telephone: 301-415-1677.

For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT:

Michele Kaplan, Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: 301-415-5256, email: Michele.Kaplan@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Obtaining Information and Submitting Comments

II. Background; Statutory Authority

III. Discussion

IV. Regulatory Flexibility Certification

V. Regulatory Analysis

VI. Backfitting and Issue Finality

VII. Plain Writing

VIII. National Environmental Policy Act

IX. Paperwork Reduction Act

Public Protection Notification

X. Voluntary Consensus Standards

XI. Availability of Guidance

XII. Public Meeting and Request for Information

XIII. Availability of Documents

I. Obtaining Information and Submitting Comments

A. Obtaining Information

Please refer to Docket ID NRC-2015-0223 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 Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0223.
• 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 “ADAMS Public Documents” and then 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 in this document (if that document is available in ADAMS) is provided the first time that a document is referenced. For the convenience of the reader, the ADAMS accession numbers are provided in a table in the “Availability of Documents” section of this document.
• NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

Please include Docket ID NRC-2015-0223 in the subject line of your comment submission in order to ensure that the NRC is able to make your comment submission publicly available in this docket.

The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC posts all comment submissions at http://www.regulations.gov as well as entering the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment submissions into ADAMS.

II. Background; Statutory Authority

The NRC's fee regulations are primarily governed by two laws: (1) The Independent Offices Appropriations Act of 1952 (IOAA) (31 U.S.C. 9701), and (2) OBRA-90. The OBRA-90 statute requires the NRC to recover approximately 90 percent of its budget authority through fees; this fee-recovery requirement excludes amounts appropriated for Waste Incidental to Reprocessing, generic homeland security activities, and Inspector General (IG) services for the Defense Nuclear Facilities Safety Board, as well as any amounts appropriated from the Nuclear Waste Fund. The OBRA-90 statute first requires the NRC to use its IOAA authority to collect user fees for NRC work that provides specific benefits to identifiable applicants and licensees (such as licensing work, inspections, special projects). The regulations at part 170 of title 10 of the Code of Federal Regulations (10 CFR) authorize these fees. But, because the NRC's fee recovery under the IOAA (10 CFR part 170) does not equal 90 percent of the NRC's budget authority, the NRC also assesses generic “annual fees” under 10 CFR part 171 to recover the remaining fees necessary to achieve OBRA-90's 90 percent fee recovery. These annual fees recover generic regulatory costs that are not otherwise collected through 10 CFR part 170.

III. Discussion

FY 2016 Fee Collection—Overview

The NRC is issuing the FY 2016 proposed fee rule based on the Consolidated Appropriations Act, 2016 (Pub. L. 114-113), amount of $1,002.1 million, a decrease of $13.2 million from FY 2015. As explained previously, certain portions of the NRC's total budget are excluded from the NRC's fee-recovery amount—specifically, these exclusions include: $1.3 million for waste-incident-to-reprocessing activities, $1.0 million for IG services for the Defense Nuclear Facilities Safety Board, and $18.8 million for generic homeland security activities. Additionally, 10 percent of the NRC's budget is recovered through this congressional appropriation. After accounting for the OBRA-90 exclusions, this 10-percent appropriation and net billing adjustments—i.e., the sum of unpaid current year invoices (estimated) minus payments for prior year invoices and the prior year billing credit issued to the U.S. Department of Energy (DOE) for the transportation fee class—approximately $883.9 million in FY 2016 must be billed as fees to licensees. Of this amount, the NRC estimates that $325.8 million will be recovered through 10 CFR part 170 user fees; that leaves approximately $558.1 million to be recovered through 10 CFR part 171 annual fees. Table I summarizes the fee-recovery amounts for the FY 2016 proposed fee rule using the enacted budget, and taking into account excluded activities, the 10-percent appropriation, and net billing adjustments (individual values may not sum to totals due to rounding).

FY 2016 Fee Collection—Hourly Rate

The NRC uses an hourly rate to assess fees for specific services provided by the NRC under 10 CFR part 170. The hourly rate also helps determine flat fees (which are used for the review of certain types of license applications). The NRC's hourly rate is derived by dividing the sum of recoverable budgeted resources for: (1) Mission-direct program salaries and benefits; (2) mission-indirect program support; and (3) agency support—which includes corporate support, office support (FY 2015 only), and the IG. In FY 2016, the agency eliminated the office support category for budgetary resources. Created in FY 2011, office support included indirect resources that sustained an individual office—such as supervisory, administrative assistant, and other support staff full-time equivalent (FTE) hours. In FY 2015, the agency contracted with consultants EY to provide a study of NRC support costs and budget structure in comparison to other Federal peer agencies. Based on recommendations in this study, starting in FY 2016, resources formerly budgeted in office support have been reclassified into either mission-indirect program support or corporate support, depending upon whether the resources were budgeted in support of a program office or a corporate support office.

The mission-direct FTE hours are the product of the mission-direct FTE multiplied by the estimated annual hours per direct FTE. The only budgeted resources excluded from the hourly rate are those for contract activities related to mission-direct and fee-relief activities. Billable contract activities are included as a separate line item on the 10 CFR part 170 invoice.

For FY 2016, the NRC is proposing to decrease the hourly rate from $268 to $266. The hourly rate decrease is due to a reduced budget and an increase in the estimated direct hours worked per mission-direct FTE during the year. The FY 2016 estimated annual direct hours per staff is 1,440 hours, up from 1,420 hours in FY 2015. Assuming a constant budget, as the FTE hours per staff increases, the hourly rate decreases. Table II shows the hourly rate calculation methodology. The FY 2015 amounts are provided for comparison purposes.

FY 2016 Fee Collection—Flat Application Fee Changes

The NRC proposes to amend the flat application fees that it charges to applicants for import and export licenses, applicants for materials licenses and other regulatory services, and holders of materials, import, and export licenses in its schedule of fees in §§ 170.21 and 170.31 to reflect the revised hourly rate of $266. The NRC calculates these flat fees by multiplying the average professional staff hours needed to process the licensing actions by the proposed professional hourly rate for FY 2016. The NRC analyzes the actual hours spent performing licensing actions and then estimates the average professional staff hours that are needed to process licensing actions as part of its biennial review of fees, which is required by Section 902 of the Chief Financial Officers Act of 1990 (31 U.S.C. 902(8)). The NRC performed this review in FY 2015 and will perform this review again in FY 2017. The lower hourly rate of $266 is the primary reason for the decrease in application fees.

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 proposed licensing flat fees are applicable for import and export licensing actions (see fee categories K.1. through K.5. of § 170.21), as well as 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). Applications filed on or after the effective date of the FY 2016 final fee rule will be subject to the revised fees in the final rule.

FY 2016 Fee Collection—Fee-Relief and Low-Level Waste (LLW) Surcharge

As previously noted, Congress provides 10 percent of the NRC's recoverable budget authority through an appropriation. The NRC applies this 10-percent Congressional appropriation to offset certain budgeted activities—please see Table III for a full listing. These activities are referred to as “fee-relief” activities. Any difference between the 10-percent appropriation and the budgeted amount of these fee-relief activities results in a fee adjustment (either an increase or decrease) to all licensees' annual fees, based on their percentage share of the NRC's budget.

In FY 2016, the NRC's budgeted fee-relief activities fall below the 10-percent appropriation threshold—therefore, the NRC proposes to assess a fee-relief adjustment (i.e., credit) to decrease all licensees' annual fees based on their percentage share of the budget. Table III summarizes the fee-relief activities for FY 2016. The FY 2015 amounts are provided for comparison purposes.

Table IV shows how the NRC allocates the -$1.5 million fee-relief adjustment (credit) to each license fee class.

In addition to the fee-relief adjustment, the NRC also assesses a generic LLW surcharge of $3.3 million. The LLW disposal occurs at commercially-operated LLW disposal facilities licensed by either the NRC or the Agreement States. There are three existing low-level waste disposal facilities in the United States that accept various types of low-level waste. All are in Agreement States and, therefore, regulated by the State authority. The NRC allocates this surcharge to its licensees based on data available in DOE's Manifest Information Management System. This database contains information on total LLW volumes and NRC usage information from four generator classes: academic, industry, medical, and utility. The ratio of utility waste volumes to total LLW volumes over a period of time is used to estimate the portion of this surcharge that should be allocated to the power reactors, fuel facilities, and materials fee classes. The materials portion is adjusted to account for the fact that a large percentage of materials licensees are licensed by the Agreement States rather than the NRC.

Table IV shows the surcharge, and its allocation across the various fee classes.

FY 2016 Fee Collection—Revised Annual Fees

In accordance with SECY-05-0164, “Annual Fee Calculation Method,” dated September 15, 2005 (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 proposes to revise its annual fees in §§ 171.15 and 171.16 to recover approximately 90 percent of the NRC's FY 2016 budget authority (less non-fee amounts and the estimated amount to be recovered through 10 CFR part 170 fees). The total estimated 10 CFR part 170 collections for this proposed rule total are $325.8 million, an increase of $4.1 million from the FY 2015 fee rule. The NRC, therefore, must recover $558.1 million through annual fees from its licensees, which is a decrease of $8.9 million from the FY 2015 final rule.

Table V shows the rebaselined fees for FY 2016 for a representative list of categories of licensees. The FY 2015 amounts are provided for comparison purposes.

The work papers (ADAMS Accession No. ML16056A437) that support this proposed rule show in detail how the NRC allocated the budgeted resources for each class of licenses and how the fees are calculated. The work papers are available as indicated in Section XIII, “Availability of Documents.”

Paragraphs a. through h. of this section describe budgetary 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.

a. Fuel Facilities

The NRC proposes to collect $31.8 million in annual fees from the fuel facility class.

In FY 2016, the fuel facilities budgetary resources decreased due to continued construction delays at multiple sites, which caused delays in NRC operational readiness reviews and NRC inspections. These delays further caused the estimated 10 CFR part 170 billings for FY 2016 to remain stable compared to FY 2015. Specifically, significant construction delays are noted for the Shaw Mixed Oxide Fuel Fabrication Facility, the International Isotopes facility, and the AREVA NC facility.

As for the annual fees, the NRC allocates 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, that matrix groups licensees into various categories. The NRC's fuel facility project managers determine the effort levels associated with regulating each category. This is done by assigning separate effort factors for the safety and safeguards activities associated with each category (for more information about this matrix, see the work papers). These effort levels are reflected in Table VII.

For FY 2016, the total budgeted resources for safety activities are $16.3 million. To calculate the annual fee, the NRC allocates this amount to each fee category based on its percent of the total regulatory effort for safety activities. Similarly, the NRC allocates the budgeted resources for safeguards activities ($13.9 million) to each fee category based on its percent of the total regulatory effort for safeguards activities. Finally, the fuel facility fee class' portion of the fee-relief adjustment/LLW surcharge—$1.7 million—is allocated to each fee category based on its percent of the total regulatory effort for both safety and safeguards activities. The annual fee per licensee is then calculated by dividing the total allocated budgeted resources for the fee category by the number of licensees in that fee category. The fee for each facility is summarized in Table VIII.

b. Uranium Recovery Facilities

The NRC proposes to collect $0.9 million in annual fees from the uranium recovery facilities fee class, a small decrease from FY 2015.

In comparison to FY 2015, the FY 2016 budgetary resources for uranium recovery licensees increased due to additional work expected for the Uranerz Energy-Jane Doe and Strata Energy-Kenderick expansions, increased inspection activities for Strata Energy-Ross (a new licensee to fleet), increased hearing activities, and the Uranium Mill Tailings Radiation Control Act (UMTRCA) bio-sequestration review for DOE-Monument Valley.

The NRC computes the annual fee for the uranium recovery fee class by dividing the total annual fee recovery amount among DOE and the other licensees in this fee class. The annual fee increase for fee categories 2.A.(2)(a-c), 2.A.(4), and 2.A.(5) is mainly due to the increase in budgetary resources for increased hearing activities and a reduction in the number of licensees over which to spread the budget. The NRC regulates DOE's Title I and Title II activities under UMTRCA. The proposed annual fee assesses to DOE 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 DOE's UMTRCA annual fee decreased because of an increase in estimated 10 CFR part 170 billings for DOE's UMTRCA site at Monument Valley. This decrease caused the total overall fee recovery amount to decrease for this fee class. The NRC assesses the remaining 90 percent of its budgeted costs to the rest of the licensees in this fee class, as described in the work papers. This is reflected in Table X as follows:

Further, for the non-DOE licensees, the NRC continues to use a matrix (which is included in the work papers) to determine the effort levels associated with conducting the generic regulatory actions for the different (non-DOE) licensees in this fee class; this is similar to 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). Table XI displays the benefit factors per licensee and per fee category, for each of the non-DOE fee categories included in the uranium recovery fee class as follows:

Applying these factors to the approximately $381,993 in budgeted costs to be recovered from non-DOE uranium recovery licensees results in the total annual fees for each fee category. The annual fee per licensee is calculated by dividing the total allocated budgeted resources for the fee category by the number of licensees in that fee category, as summarized in Table XII.

c. Operating Power Reactors

The NRC proposes to collect $471.2 million in annual fees from the power reactor fee class in FY 2016, as shown in Table XIII. The FY 2015 values and percentage change are shown for comparison.

In comparison to FY 2015, the operating power reactors budgetary resources decreased in FY 2016 due to a decrease in the budgeted activities for new-reactor activities. This decrease is attributable to delays in application submittals and a slowdown in requests for design certification renewal and construction permits. Accordingly, the FY 2016 operating power reactor annual fee decreased. In addition to decreased budgetary resources, an additional licensee (Watts Bar) was added to the operating fleet, which increases the number of licensees paying this annual fee—this also, therefore, lowers annual fees compared to FY 2015.

Compared with FY 2015, 10 CFR part 170 estimated billings decreased due to both the issuance of the Fermi Unit 3 combined operating license and the hourly rate decrease.

The recoverable budgeted costs are divided equally among the 100 licensed power reactors resulting in a proposed annual fee of $4,712,000 per reactor. Additionally, each licensed power reactor is assessed the FY 2016 spent fuel storage/reactor decommissioning annual fee of $211,000 (see the discussion that follows). The combined FY 2016 annual fee for power reactors is, therefore, $4,923,000.

d. Spent Fuel Storage/Reactors in Decommissioning

The NRC proposes to collect $25.7 million in annual fees from 10 CFR part 50 power reactors and 10 CFR part 72 licensees who do not hold a 10 CFR part 50 license to collect the budgeted costs for spent fuel storage/reactor decommissioning.

In comparison to FY 2015, the annual fee decreased due to a decline in budgetary resources for rulemaking security guidance and waste research. This decrease is partially offset by the slight decline in 10 CFR part 170 billings, which resulted from completing the license renewal for Prairie Island in late FY 2015 and the lower hourly rate.

The required annual fee recovery amount is divided equally among 122 licensees, resulting in an FY 2016 annual fee of $211,000 per licensee.

e. Research and Test Reactors (Nonpower Reactors)

The NRC proposes to collect $0.33 million in annual fees from the research and test reactor licensee class.

In FY 2016, the annual fees decreased due to a decline in contract support for the non-power reactors and an increase in estimated 10 CFR part 170 billings for non-power production and utilization facility applications to produce molybdenum-99. The required annual fee-recovery amount is divided equally among the four research and test reactors subject to annual fees and results in an FY 2016 annual fee of $82,500 for each licensee.

f. Rare Earth

The agency anticipates receiving an application for a rare-earth facility this fiscal year. The NRC has allocated approximately $460,000 in budgeted resources to this fee class. But, because all of these budgetary resources will be recovered through 10 CFR part 170, the NRC will not propose an annual fee in FY 2016 for this fee class.

g. Materials Users

The NRC proposes to collect $35.2 million in annual fees from materials users licensed under 10 CFR parts 30, 40, and 70.

To equitably and fairly allocate the $35.2 million in FY 2016 budgeted costs among approximately 2,900 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 license, this approach provides a proxy for allocating the generic and other regulatory costs to the diverse categories of licenses based on the NRC's cost to regulate each category. 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 annual fee for these categories of materials users' licenses is developed as follows:

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

For FY 2016, the constant multiplier necessary to recover approximately $25.5 million in general costs (including allocated generic transportation costs) is 1.51. The average inspection cost is the average inspection hours for each fee category multiplied by the hourly rate of $266. The inspection priority is the interval between routine inspections, expressed in years. The inspection multiplier is the multiple necessary to recover approximately $8.9 million in inspection costs, and is 1.77 for FY 2016. The unique category costs are any special costs that the NRC has budgeted for a specific category of licenses. For FY 2016, approximately $249,000 in budgeted costs for the implementation of revised 10 CFR part 35, “Medical Use of Byproduct Material (unique costs),” has been allocated to holders of NRC human-use licenses.

The annual fee to be assessed to each licensee also includes a share of the fee-relief assessment of approximately −$47,000 allocated to the materials users fee class (see Table IV, “Allocation of Fee-Relief Adjustment and LLW Surcharge, FY 2016,” in Section III, “Discussion,” of this document), and for certain categories of these licensees, a share of the approximately $526,400 surcharge costs allocated to the fee class. The annual fee for each fee category is shown in § 171.16(d).

h. Transportation

The NRC proposes to collect $8.4 million in annual fees to recover generic transportation budgeted resources. The FY 2015 values are shown for comparison.

In comparison to FY 2015, the total budgetary resources for generic transportation activities increased due to the rulemaking activities involving 10 CFR part 71 Compatibility with IAEA (International Atomic Energy Agency) Transportation Standards and Improvements, and continuous licensing reviews for Holtec International, EnergySolutions and Areva Federal Services.

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 as part of existing annual fees for license 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 Certificates of Compliance (CoCs) used by each fee class (and DOE) by the total generic transportation resources to be recovered. The DOE annual fee decrease is mainly due to 10 CFR part 171 billing adjustments.

This resource distribution to the licensee fee classes and DOE is shown in Table XVIII. Specifically for the research and test reactors fee class, the NRC allocates the distribution to only the licensees that are subject to annual fees. Three CoCs benefit the entire research and test reactor class, but only 4 out of 31 research and test reactors are subject to annual fees. The number of CoCs used to determine the proportion of generic transportation resources allocated to research and test reactors annual fees is adjusted to 0.4 so that the licensees subject to annual fees are charged a fair and equitable portion of the total. 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 2016—Fee Policy Change

The NRC also proposes a policy change:

Charging User Fees for NRC Work Spent on Responding to Touhy Requests

The NRC proposes to assess 10 CFR part 170 user fees to recover the NRC staff's costs when responding to significant Touhy requests. The NRC's Touhy regulations—found at 10 CFR 9.200 through 9.204—govern the manner in which the NRC responds to third-party subpoenas or demands for official information served on agency employees. Those third-party subpoenas seek NRC employees to produce documents, to testify, or to do both, in outside litigation in which neither the NRC nor the United States is a named party.

Currently, NRC regulations do not authorize the NRC to collect user fees for the work it performs either collecting and providing documents or providing oral testimony in depositions or before an administrative or judicial tribunal. Yet, NRC work on some Touhy requests can be quite substantial. Without an existing regulation authorizing the NRC to collect user fees, the costs of this work must be recovered through annual fees under 10 CFR part 171. Therefore, the NRC proposes to amend its regulations to begin assessing Touhy fees in certain circumstances. The authority for assessing these fees comes from the same statute that provides the authority for the NRC's 10 CFR part 170 fee schedule. That statute—the IOAA—sets forth Congressional policy that “each service or thing of value provided by an agency . . . to a person . . . is to be self-sustaining to the extent possible.” Here, when the NRC complies with a third-party demand for information, the NRC is bestowing a benefit on a private litigant because the NRC is aiding that private litigant in its litigation by providing the information. That benefit is not shared by other members of society. The NRC's work on substantial Touhy requests should, therefore, be recovered under 10 CFR part 170 rather than the current process, which bins those costs to 10 CFR part 171.

To achieve this goal, the NRC proposes to amend 10 CFR part 170.12 to authorize full-cost recovery for all NRC work spent processing Touhy requests above a certain threshold. This work would be recovered under 10 CFR 170.12 as a “special project” fee because it constitutes specific services provided by the NRC to an individual. The NRC also proposes a conforming change to the NRC's existing Touhy regulations in 10 CFR 9.201 to clarify that any production or disclosure of records under that subpart triggers fee payment in accordance with 10 CFR part 170. Further, the NRC proposes amending the “Scope” section in 10 CFR 170.2 to clarify that 10 CFR part 170 applies to Touhy requesters. Finally, the NRC proposes amending the “Definitions” section in 10 CFR 170.3 to define “Touhy request” to identify the requests under 10 CFR 9.201 that are subject to “special project fees” under 10 CFR part 170. This full-cost recovery under 10 CFR part 170 would apply to both requests for documents and requests for oral testimony. Additionally, the NRC proposes creating a 50-hour de minimis fee exception to ensure that 10 CFR part 170 fees are assessed for only significant Touhy requests. This is because the NRC believes that non-corporate Touhy requests for a limited set of documents should not be subject to fees. Once NRC work on a Touhy exceeds 50 hours, however, the Touhy requester will be billed for the full amount of work—this provides an incentive for Touhy requesters to keep their requests from becoming overly burdensome.

An alternative to the NRC's proposed fee collection for Touhy requests exists. That alternative entails amending 10 CFR part 9 to authorize the collection of Touhy fees through the NRC's existing Freedom of Information Act (FOIA) fee schedule instead of 10 CFR part 170. With respect to Touhy requests for documents, this option would impose the following search/review fees (in lieu of the hourly fee in 10 CFR part 170):

(1) Clerical search and review at a salary rate that is equivalent to a GG-7/step 6, plus 16-percent fringe benefits;

(2) Professional/managerial search and review at a salary rate that is equivalent to a GG-13/step 6, plus 16-percent fringe benefits; and

(3) Senior executive or Commissioner search and review at a salary rate that is equivalent to an ES-Maximum, plus 16-percent fringe benefits.

But, because the FOIA fee schedule is designed for document requests only, even under this option, the NRC would still need to recover fees for oral testimony through 10 CFR part 170.

In this fee rule, the NRC proposes to use 10 CFR part 170 for all components of Touhy requests, rather than just requests for oral testimony. This is because 10 CFR part 170 fees are designed to recover the “full cost” of the service provided, while FOIA fees are not. As explained by the Seventh Circuit in Mississippi Power & Light Co. v. NRC, the IOAA authorizes agencies to collect administrative and agency support costs (such as rent and electricity) because those are part of the full cost of the provided service. These support charges ultimately become bundled into the NRC's calculation of its hourly rate, which represents the full cost of the NRC's professional services. Although FOIA fees collected include 16 percent for fringe benefits, they do not include the support charges that are included within the 10 CFR part 170 hourly rate. So, if the NRC used the FOIA fee schedule, then the NRC would not be recovering the full cost of its work spent on processing Touhy requests. Second, applying 10 CFR part 170 fees for document production simplifies the fee structure by charging Touhy requesters the same fee whether the requester is seeking documents or oral testimony. Further, even under the NRC's proposed 10 CFR part 170 fee recovery for Touhy requests, a prospective Touhy requester could still elect to forego the Touhy process altogether for document requests and instead just submit a FOIA request for the documents that it wants. Imposing 10 CFR part 170 fees, therefore, provides a choice for Touhy requesters whether to use the FOIA process or Touhy process when seeking documents from the NRC.

The NRC welcomes public feedback on the desirability and practicability of both the NRC's proposed fee-recovery option and the alternate option.

FY 2016—Administrative Changes

The NRC also proposes three administrative changes:

1. Increase Direct Hours per Full-Time Equivalent in the Hourly Rate Calculation

The hourly rate in 10 CFR part 170 is calculated by dividing the cost per direct FTE by the number of direct hours per direct FTE in a year. “Direct hours” are hours charged to mission-direct activities in the Nuclear Reactor Safety Program and Nuclear Materials and Waste Safety Program. The FY 2015 final fee rule used 1,420 hours per direct FTE in the hourly rate calculations. During the FY 2016 budget formulation process, the NRC staff reviewed and analyzed time and labor data from FY 2014 through FY 2015 to determine whether it should revise the direct hours per FTE. Between FY 2014 and FY 2015, the total direct hours charged by direct employees increased. The increase in direct hours was apparent in all mission business lines. To reflect this increase in productivity as demonstrated by the time and labor data, the NRC staff determined that the number of direct hours per FTE should increase to 1,440 hours for FY 2016.

2. Amend Language Under 10 CFR 170.11 To Clarify Exemption Requirements

The NRC proposes to amend the language under 10 CFR 170.11(a)(1) to clarify when stakeholders can receive a fee exemption after submitting a report to the NRC for review. Paragraph (a)(1) currently contains three distinct criteria that stakeholders can use to receive a fee exemption after NRC review of a “special project that is a request/report submitted to the NRC.” These three fee exemptions—in paragraphs (a)(1)(i), (a)(1)(ii), and (a)(1)(iii)—are all largely similar and are intended to provide exemptions to stakeholders when the NRC's review of their report does not provide unique benefits to the report's submitter. Yet the existing language in paragraph (a)(1)(iii) is ambiguous because it requires that the NRC be the “primary beneficiary” of its review of the submitted documents; in practice, it can be difficult to precisely determine whether the NRC or the document submitter is actually the “primary beneficiary” of the NRC's review. This language, therefore, has been a source of confusion between the NRC and its stakeholders. The NRC proposes to remove paragraph (a)(1)(iii) and instead rely on the related criteria in exemptions in paragraphs (a)(1)(i) and (a)(1)(ii) for this kind of work. The NRC also proposes to move the requirements in current paragraph (a)(1)(iii)(C) that require stakeholders to submit their fee exemption requests in writing to the Chief Financial Officer to a new paragraph (a)(13). These requirements would now apply to all fee exemption criteria, not just special projects.

3. Change Small Entity Fees

In accordance with NRC policy, the NRC staff conducted a biennial review in 2015 of small entity fees to determine whether the NRC should change those fees. The NRC staff used the fee methodology developed in FY 2009 that applies a fixed percentage of 39 percent to the prior 2-year weighted average of materials users' fees when performing its biennial review. As a result of the NRC staff's review, the upper tier small entity fee increased from $2,800 to $4,000 and the lower-tier fee increased from $600 to $900. This constituted a 43-percent and 50-percent increase, respectively. Implementing this increase would have had a disproportionate impact upon the NRC's small licensees compared to other licensees, and so the NRC staff revised the increase to 21 percent for the upper-tier fee. The NRC staff chose 21 percent based on the average percentage increase for the prior two biennial reviews of small entity fees. Because of a technical oversight, the change was not included in the FY 2015 final fee rule. Due to last year's oversight, the NRC staff is now proposing to amend the upper-tier small entity fee to $3,400 and amend the lower-tier small entity fee to $700 for FY 2016. The NRC staff believes these fees are reasonable and provide relief to small entities while at the same time recovering from those licensees some of the NRC's costs for activities that benefit them.

IV. Regulatory Flexibility Certification

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the NRC has prepared a Regulatory Flexibility Analysis (RFA) relating to this proposed rule. The RFA is available as indicated in Section XIII, Availability of Documents, of this document.

V. Regulatory Analysis

Under OBRA-90, and the AEA, the NRC is required to recover 90 percent of its budget authority, or total appropriations of $1002.1 million, in FY 2016. 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 and the AEA.

In this rulemaking, the NRC continues this long-standing approach. Therefore, the NRC did not identify any alternatives to the current fee structure guidelines and did not prepare a regulatory analysis for this rulemaking.

VI. Backfitting and Issue Finality

The NRC has determined that the backfit rule, 10 CFR 50.109, does not apply to this proposed 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.

VII. 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 31883). The NRC requests comment on the proposed rule with respect to the clarity and effectiveness of the language used.

VIII. National Environmental Policy Act

The NRC has determined that this rule is the type of action described in 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this proposed rule.

IX. Paperwork Reduction Act

This proposed rule does not contain any new or amended collections of subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Existing collections of information were approved by the Office of Management and Budget, approval number 3150-0043.

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.

X. 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 proposed rule, the NRC proposes to amend 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 2016, as required by OBRA-90, as amended. This action does not constitute the establishment of a standard that contains generally applicable requirements.

XI. 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 2015 final fee rule. This document, which has been relabeled for FY 2016, is available as indicated in Section XIII, 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 2017.

XII. Public Meeting and Request for Information

The NRC will conduct a public meeting on the proposed rule for the purpose of describing the proposed rule and answering questions from the public on the proposed rule.

The NRC will publish a notice of the location, time, and agenda of the meeting on the NRC's public meeting Web site within at least 10 calendar days before the meeting. In addition, the agenda for the meeting will be posted on www.regulations.gov under Docket ID NRC-2015-0223. Stakeholders should monitor the NRC's public meeting Web site for information about the public meeting at: http://www.nrc.gov/public-involve/public-meetings/index.cfm.

The NRC is also conducting a separate effort to obtain public comment on a number of broader issues related to NRC fees. For information on the issues and providing comments, please see http://regulations.gov under Docket ID NRC-2016-0056.

XIII. 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.

Throughout the development of this rule, the NRC may post documents related to this rule, including public comments, on the Federal rulemaking Web site at http://www.regulations.gov under Docket ID NRC-2015-0223. The Federal rulemaking Web site allows you to receive alerts when changes or additions occur in a docket folder. To subscribe: (1) Navigate to the docket folder NRC-2015-0223; (2) click the “Sign up for Email Alerts” link; and (3) enter your email address and select how frequently you would like to receive emails (daily, weekly, or monthly).

List of Subjects

10 CFR Part 9

• Administrative practice and procedure
• Courts
• Criminal penalties
• Freedom of information
• Government employees
• Privacy
• Reporting and recordkeeping requirements
• Sunshine Act

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
• Byproduct material
• Holders of certificates, registrations, approvals
• Intergovernmental relations
• Nonpayment penalties
• Nuclear materials
• Nuclear power plants and reactors
• Source material
• Special nuclear material

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is proposing to adopt the following amendments to 10 CFR parts 9, 170, and 171.

PART 9—PUBLIC RECORDS

1. The authority citation for part 9 continues to read as follows:

Authority: Atomic Energy Act of 1954, sec. 161 (42 U.S.C. 2201); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); 44 U.S.C. 3504 note.

Subpart A also issued under 31 U.S.C. 9701.

Subpart B also issued under 5 U.S.C. 552a.

Subpart C also issued under 5 U.S.C. 552b.

2. Revise § 9.201 to read as follows:

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

3. 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.

4. Revise § 170.1 to read as follows:

5. In § 170.2, add paragraph (u) to read as follows:

6. In § 170.3, add, in alphabetical order, the definition for Touhy request, to read as follows:

7. In § 170.11, revise paragraph (a)(1)(ii), remove paragraph (a)(1)(iii), and add paragraph (a)(13) to read as follows:

8. In § 170.12, revise paragraphs (d)(1)(v) and (vi) and add paragraph (d)(1)(vii) to read as follows:

9. Revise § 170.20 to read as follows:

10. In § 170.21, in the table, revise fee categories J. and K. to read as follows:

11. 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

12. 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.

13. In § 171.15, revise paragraph (b)(1), the introductory text of paragraph (b)(2), paragraph (c)(1), the introductory text of paragraphs (c)(2) and (d)(1), and paragraphs (d)(2) and (d)(3), and revise paragraph (f), as proposed to be redesignated from paragraph (e) at 80 FR 68268 on November 4, 2015, to read as follows:

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