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Federal Register / Vol. 86, No. 114 / Wednesday, June 16, 2021 / Rules and Regulations
service fees collected under 10 CFR part 170, on the other hand, depends on several 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.
Since FY 2016, the fee class budget for operating power reactors has decreased from $750.4 million in FY
2016 to $611.8 million in FY 2021. This represents a reduction of $138.6 million, or approximately 18 percent, as a result of the decreasing number of nuclear power reactor licensees, application delays and withdrawals, fewer license amendment requests being submitted, efficiencies gained with the merger of the Office of Nuclear Reactor Regulation and the Office of New Reactors, 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 $287.8 million in FY 2016 to $157.0 million in FY 2021, which represents a decline of $130.8 million, or approximately 45 percent. As compared to FY 2016, the operating power reactors fee class annual fee has declined from $465.9 million in FY
2016 to $446.8 million in FY 2021, which represents a decrease of $19.1
million, or approximately 4 percent.
These changes in the budgetary resources and the 10 CFR part 170
estimated billings, as well as other adjustments including billing adjustments, generic transportation, and the LLW surcharge and the elimination of the fee-relief surcharge or credit in FY
2021, alter the amount of feerecoverable budgeted resources that are required to be collected through 10 CFR
part 171 annual fees from the operating power reactors fee class.
With respect to expediting efficiency efforts, the NRC continues to review its budget and pursue additional efficiency improvements related to budget formulation such as pursuing the use of analytical tools e.g., dashboards, to help the NRC analyze and report data quicker and more consistently and to support a more efficient and riskinformed budget formulation process.
When formulating the budget, the NRC
takes into consideration: 1 Projected operating power plant closures; 2
workload forecasting, including workload drivers, analysis of historical data and trends, and communication with stakeholders; 3 the estimated level of effort for regulatory activities and yearly recurring activities; and 4
other external factors that may impact how the NRC meets its statutory responsibilities as the industry changes.

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However, the NRC budget is not linearly proportional to the size of the operating power reactor fleet, as there is a cost for the infrastructure that must be maintained independent of the number of operating power reactors in the fleet.
The NRC is required by NEIMA to recover, to the maximum extent practicable, approximately 100 percent of its annual budget authority, less the budget authority for excluded activities.
NEIMA also caps the per-licensee annual fee for operating reactors, to the maximum extent practicable, at the FY
2015 annual fee amount as adjusted for inflation. 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.
Comment: The FY 2021 Proposed Fee Rule continues to shift the burden created by overestimating Part 170 fee collections reflected in the NRCs appropriated budget to the recovery of Part 171 annual fees. While Exelon appreciates the challenge of precisely estimating the amount of Part 170 fees that will be recovered two years in advance due to the budget cycle, we note that this is precisely the problem that NEIMA intended to address. The Conference Report for NEIMA describes exactly this challenge in explaining the basis for the law: Several problems arise from the OBRA90 structure. If the NRC overestimates the amount of revenue it expect sic to collect under Part 170, it must recover the resulting revenue shortfall through Part 171 fees in order to meet the OBRA90 mandate for 90 percent fee recovery. The Congress noted that this situation highlights the need for the NRC to budget more accurately and recover fees for work that is actually conducted. It is clear, therefore, that Congress designed NEIMA with the existing challenges of the budget cycle in mind.
Notwithstanding Congresss clear intent in this regard, the FY 2021 Proposed Fee Rule would continue to shift the impacts of Part 170 overbudgeting to Part 171 annual fees, which does not appear to take advantage of the significantly greater flexibilities in NEIMA with respect to the portions of its appropriated budget that the NRC
must collect through fees. In addition to this comment submission, this response addresses similar comments made during the March 18, 2021, public
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meeting to discuss the FY 2021
proposed fee rule. Exelon Response: The NRC disagrees with the commenters suggestion that the allocation of service fees versus annual fees in the FY 2021 proposed fee rule might be inconsistent with congressional intent underlying NEIMA.
Under NEIMA, the NRC is still required to recover through fees the total appropriated budget with the exception of discrete categories of budget authority, and to do so through a combination of both service fees and annual fees. Specifically, NEIMA
requires the NRC to recover, to the maximum extent practicable, approximately 100 percent of its total budget authority for the fiscal year, less the budget authority for excluded activities.
The NRC is fully in compliance with NEIMA. The NRC identified fee-relief activities in the FY 2021 CBJ which were consistent with the fee-relief activities identified in the FY 2020 fee rule, with the exception of international activities, not including the resources for import and export licensing and the FY 2021 final fee rule maintains those same fee-relief activities. The Congressional report referenced by the commenter as support for the proposition that NEIMA was intended to provide the NRC significantly greater flexibilities regarding fee collection is not a conference report, but rather a report issued by the Senate Committee on Environment and Public Works Senate Report 11586. At the time when the bill was reported by the Senate Committee on Environment and Public Works, the bill would have limited fee-relief activities to those identified in the FY 2015 final fee rule.
This is inconsistent with the commenters suggestion that this Congressional report reflects an intent for NEIMA to provide the NRC with greater flexibility in determining what portions of the appropriated budget are recovered through fees. The Congressional report in fact contains statements reflecting an intention that the NRC, under NEIMA, would collect fees based on the agencys workload, but the amount not recovered through fees would generally be unaffected. For example, the report states that consistent with current practice, the taxpayer continues to pay only for the items explicitly outlined in the law as appropriated items and the rest of the NRCs budget is to be recovered through fees; as such, the cost to the taxpayer is generally unaffected but the fee recovery will be determined by the agencys workload rather than a mandated percentage.

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