Receipts-Based NRC Size Standards
| Published date | 17 February 2022 |
| Citation | 87 FR 8943 |
| Record Number | 2022-03146 |
| Section | Rules and Regulations |
| Court | Nuclear Regulatory Commission |
Federal Register, Volume 87 Issue 33 (Thursday, February 17, 2022)
[Federal Register Volume 87, Number 33 (Thursday, February 17, 2022)]
[Rules and Regulations]
[Pages 8943-8947]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-03146]
========================================================================
Rules and Regulations
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
========================================================================
Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 /
Rules and Regulations
[[Page 8943]]
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2 and 171
[NRC-2014-0264]
RIN 3150-AJ51
Receipts-Based NRC Size Standards
AGENCY: U.S. Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is amending its
small business size standards, which are used to qualify an NRC
licensee as a ``small entity'' under the Regulatory Flexibility Act of
1980, as amended. The purpose of these size standards is for reducing
annual NRC license fees for small entities. These standards do not
apply to the NRC's contracts for goods and services. The NRC is
increasing the upper and lower tiers for its receipts-based small
entity size standards for small businesses and small not-for-profit
organizations. This change allows NRC standards to remain consistent
with the inflation adjustments made by the Small Business
Administration size standard for nonmanufacturing concerns. In
addition, in accordance with the Small Business Runway Extension Act of
2018, the NRC is changing the calculation of annual average receipts
for the receipts-based NRC size standard for small businesses that
provide a service or small businesses not engaged in manufacturing from
a 3-year averaging period to a 5-year averaging period.
DATES: This final rule is effective on March 21, 2022.
ADDRESSES: Please refer to Docket ID NRC-2014-0264 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-2014-0264. Address
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407;
email: [email protected]. 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 https://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 [email protected]. 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, instructions about obtaining materials referenced in this
document are provided in the ``Availability of Documents'' section of
this document.
FOR FURTHER INFORMATION CONTACT: Jo Jacobs, Office of the Chief
Financial Officer, telephone: 301-415-8388; email: [email protected];
or Billy Blaney, Office of the Chief Financial Officer, telephone: 301-
415-5092; email: [email protected]. Both are staff of the U.S.
Nuclear Regulatory Commission, Washington, DC 20555-0001.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Background
II. Discussion
III. Public Comments
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. Congressional Review Act
XI. Voluntary Consensus Standards
XII. Availability of Guidance
XIII. Availability of Documents
I. Background
The NRC's current size standards are provided under part 2 of title
10 of the Code of Federal Regulations (10 CFR), ``Agency Rules of
Practice and Procedure,'' in Sec. 2.810, ``NRC size standards.'' These
standards were established on December 9, 1985 (50 FR 50241), when the
NRC implemented the requirements of the Regulatory Flexibility Act of
1980, as amended (RFA). The RFA requires agencies to consider the
impact of rulemaking on small entities and, consistent with applicable
statutes, study alternatives to minimize these impacts on applicable
businesses, organizations, and government jurisdictions. The NRC's
regulations in Sec. 2.810 and 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,'' contain the criteria, in Sec. 171.16(a) and (c), ``Annual
fees: Materials licensees, holders of certificates of compliance,
holders of sealed source and device registrations, holders of quality
assurance program approvals, and government agencies licensed by the
NRC,'' that certain licensees use to qualify as small entities for the
purpose of reducing annual license fees. The NRC's current size
standards under Sec. 2.810 are based on the Small Business
Administration's (SBA) receipts-based size standards for small
businesses and small not-for-profit organizations, employee-based size
standards for business concerns that are manufacturing and for small
educational institutions that are not State or publicly supported
entities, and population-based size standards for small governmental
jurisdictions.
In establishing the fiscal year (FY) 1991 fee rule, the NRC
determined that the annual fees would have a significant impact on a
substantial number of small materials licensees. As a result, the NRC
established a small entity fee tier in Sec. 171.16(c), which resulted
in a subsidy program whereby small entities would pay a reduced annual
fee (56 FR 31507; July 10, 1991). In FY 1992, the NRC established a
second tier in Sec. 171.16(c) to benefit the licensees that were very
small entities. Pursuant to Sec. 171.16(c), if a licensee qualifies as
a small entity and provides the Commission with the proper
certification, the licensee may pay a reduced annual fee. As part of
the certification process, a licensee that
[[Page 8944]]
meets the NRC's size standards for a small entity must complete NRC
Form 526, ``Certification of Small Entity Status for the Purposes of
Annual Fees,'' certifying that it meets the NRC's size standards for a
small entity.
The last revisions to the receipts-based size standards in
Sec. Sec. 2.810 and 171.16(c) to adjust for inflation were published
in the Federal Register on July 3, 2012 (77 FR 39385), and in the FY
2013 final fee rule published in the Federal Register on July 1, 2013
(78 FR 39479), respectively. More recently, in FY 2020, the NRC
surveyed its materials licensees to help determine whether to change
the size standards in Sec. 2.810 (85 FR 6225; February 4, 2020). With
the exception of inflation-related increases and adjusting the
methodology for calculating average gross-receipts to be consistent
with the Small Business Runway Extension Act of 2018 (Runway Act) and
SBA regulations, the survey results did not suggest that the NRC should
change its small entity size standards.
The Runway Act amended section 3(a)(2)(C)(ii)(II) of the Small
Business Act (15 U.S.C. 632(a)(2)(C)(ii)(II)), to modify the
requirements for the small business size standards prescribed by an
agency without separate statutory authority to issue size standards.
Subsequently, on December 5, 2019, the SBA published a final rule
modifying its method for calculating average annual receipts used to
prescribe size standards for small businesses (84 FR 66561). As a
result of adjustments for inflation described more fully in the
``Discussion'' section of this document, the NRC must revise its
receipts-based size standards from a 3-year averaging period to a 5-
year averaging period to comply with the Runway Act.
In order to amend Sec. 2.810, the NRC must follow the procedures
of the Small Business Act, and SBA's implementing regulations in 13 CFR
121.903, ``How may an agency use size standards for its programs that
are different than those established by SBA?'' because the NRC does not
have separate statutory authority to issue size standards. Accordingly,
the NRC has sent this final rule to SBA for review and has received the
approval of the SBA Administrator.
II. Discussion
The NRC is amending Sec. 2.810 to increase the receipts-based
small entity size standard from $7.0 million to $8.0 million for small
businesses and small, not-for-profit organizations. These amendments
are to remain consistent with inflation adjustments made by the SBA to
its size standard for nonmanufacturing concerns. Most recently, the SBA
adjusted this standard for inflation on July 18, 2019 (84 FR 34261). In
addition, the NRC is also amending the average gross-receipts
calculation process to change from a 3-year averaging period to a 5-
year averaging period, as required by SBA regulations and in response
to the Runway Act.
Further, and analogous to the inflation adjustment in Sec. 2.810,
the NRC is amending Sec. 171.16(c) to increase the upper-tier
receipts-based small entity size standard from $7.0 million to $8.0
million for small businesses and small, not-for-profit organizations.
Likewise, the NRC is increasing the lower-tier receipts-based size
standard from $485,000 to $555,000, based upon the percent change in
the upper tier.
III. Public Comments
The NRC published a proposed rule on July 26, 2021 (86 FR 39980),
and requested public comment on its proposed revisions to 10 CFR parts
2 and 171. The comment period on the proposed rule closed on August 25,
2021. The NRC did not receive any public comments on the proposed rule.
IV. Regulatory Flexibility Certification
Under the Regulatory Flexibility Act of 1980, as amended (RFA), the
Commission certifies that this final rule, if adopted, will not have a
significant economic impact on a substantial number of small entities.
This final rule is administrative in that this final rule will revise
the criteria in 10 CFR parts 2 and 171 that the NRC uses to determine
which of its licensees qualify as small entities for the purposes of
compliance with the RFA. The amendments to the size standards conform
to the SBA's revised standard and is expected to result in an increase
in the number of NRC licensees that qualify as small entities.
V. Regulatory Analysis
The RFA requires agencies to consider the impact of rulemaking on
small entities and, consistent with applicable statutes, study
alternatives to minimize the impacts on applicable businesses,
organizations, and government jurisdictions. In previous rulemakings to
amend its size standards, the NRC has adjusted the criteria that the
NRC uses to determine which of its licensees qualify as small entities
for the purposes of compliance with the RFA.
For the NRC's size standards, rulemaking is required to amend the
methodology for calculating average gross-receipts and the upper and
lower tier receipts-based size standards to reflect adjustments for
inflation. The NRC has not revised the receipts-based size standards in
Sec. Sec. 2.810 and 171.16(c) since 2012 and 2013, respectively;
therefore, this final rule includes adjustments for inflation. This
final rule amends Sec. Sec. 2.810 and 171.16(c) to increase the NRC's
upper-tier receipts-based size standard from $7.0 million to $8.0
million for small businesses and small not-for-profit organizations, in
order to remain consistent with the adjustments for inflation made to
the SBA's size standard for nonmanufacturing. In addition, this final
rule amends Sec. 171.16(c) to increase the lower-tier receipts-based
size standard from $485,000 to $555,000, consistent with the percentage
change in the upper-tier. Furthermore, for consistency with the Runway
Act and SBA regulations, the NRC is amending its methodology for
calculating the average gross-receipts from a 3-year averaging period
to a 5-year averaging period.
The NRC estimates that the final rule provides the following
benefits and costs:
Benefits
This action will result in continued compliance with the
RFA, since the final rule will reduce the impact of annual fees on
small entities by increasing the receipts-based size standards in Sec.
2.810 and the tiers in Sec. 171.16(c) that licensees use to qualify as
small entities.
While it is not certain how many licensees would qualify
as small entities under the receipts-based size standards that are
being adjusted, the staff estimates that 95 additional licensees (a 12-
percent increase) will potentially qualify as small entities and be
eligible to pay a reduced annual fee.
The licensees can have increased regulatory confidence
that the NRC has amended the agency's receipts-based size standards to
be consistent with the SBA's practices, and, as stated in SECY-20-0111,
``Rulemaking Plan to Amend the Receipts-Based NRC Size Standards (NRC-
2014-0264),'' (ADAMS Accession No. ML20268B327), that the NRC will
review the current size standards and determine whether proposed
amendments are needed every 5 years or sooner based on the SBA's
adjustments.
Costs
The cost impact of changing the average gross-receipts
from a 3-year averaging period to a 5-year averaging period is not
known, as the average gross-receipts have been based on a 3-year
averaging period since the NRC established its size standards in 1985.
Every licensee will likely need to
[[Page 8945]]
expend some effort to evaluate its gross-receipts and may need to
provide additional information if questions arise during the staff's
certification review. Modifying to a 5-year averaging period of gross-
receipts may result in a negative impact in that some licensees that
are close to the upper limit of their size standard could lose their
small entity status, while others may newly qualify as small entities.
Despite this cost, because the NRC is amending the receipts-based size
standards to adjust for inflation, the NRC also is amending the average
gross-receipts from a 3-year averaging period to a 5-year averaging
period pursuant to the Runway Act.
The expected increase in additional licensees qualifying
as small entities could possibly increase the NRC's net budget
authority as a result of additional licensees qualifying as small
entities.
The results of the regulatory analysis are cost-justified because
the final rule would result in an estimated 95 additional licensees (a
12-percent increase) who would qualify as small entities and be
eligible to pay a reduced annual fee and the identified cost impacts
are expected to be small and would not be passed onto other NRC's
applicants and licensees. The NRC did not identify any other
alternatives to amend the receipts-based size standards under Sec.
2.810, which are consistent with the adjustments made by the SBA. In
addition, the NRC did not identify any alternatives to rulemaking to
amend the upper and lower tiers under Sec. 171.16(c) to reflect
adjustments for inflation.
VI. Backfitting and Issue Finality
The NRC has determined that the backfit rule, Sec. Sec. 50.109,
70.76, 72.62, and 76.76 and the issue finality provisions in 10 CFR
part 52 do not apply to this final rule and that an analysis is not
required because these amendments do not require the modification of,
or addition to, (1) systems, structures, components, or the design of a
facility; (2) the design approval or manufacturing license for a
facility; or (3) 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 wrote 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).
VIII. National Environmental Policy Act
The NRC has determined that this final rule is the type of action
described in Sec. 51.22(c)(1). Therefore, neither an environmental
impact statement nor environmental assessment has been prepared for
this final rule.
IX. 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 Act.
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. Congressional Review Act
This final rule is a rule as defined in the Congressional Review
Act (5 U.S.C. 801-808). However, the Office of Management and Budget
has not found it to be a major rule as defined in the Congressional
Review Act.
XI. 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 action
does not constitute the establishment of a standard that contains
generally applicable requirements.
XII. Availability of Guidance
The NRC publishes a fee guidance document for small entities
annually in conjunction with the NRC's annual rule to revise its fee
schedules. The ``Small Entity Compliance Guide'' is designed to assist
businesses, organizations, educational institutions, and governmental
jurisdictions in determining whether they qualify as small entities by
providing the qualifying factors that make up the NRC's definition of
``small entity,'' and the current small entity fees. The NRC will
update the compliance guide each year when issuing the final fee rule
and to align with the fee schedule of that year. As part of a future
fee rule, the NRC will update the Small Entity Compliance Guide to
reflect to changes in Sec. Sec. 2.810 and 171.16(c). The FY 2021 Small
Entity Compliance Guide is available as indicated in the ``Availability
of Documents,'' section of this document.
XIII. Availability of Documents
Documents identified in the following table are available to
interested persons through one or more of the following methods, as
indicated.
------------------------------------------------------------------------
ADAMS accession No./web link/
Document Federal Register Citation
------------------------------------------------------------------------
Public Law (Pub. L.) 115-324, ``Small https://www.congress.gov/115/
Business Runway Extension Act of plaws/publ324/PLAW-
2018''. 115publ324.pdf.
NRC Size Standard for Making 50 FR 50241.
Determinations Required by the
Regulatory Flexibility Act of 1980
(December 9, 1985).
Revision of Fee Schedules; 100 Percent 56 FR 31507.
Fee Recovery (July 10, 1991).
NRC Form 526, ``Certification of Small https://www.nrc.gov/reading-rm/
Entity Status for the Purposes of doc-collections/forms/
Annual Fees Imposed under 10 CFR Part nrc526.pdf.
171''.
Receipts-Based, Small Business Size 77 FR 39385.
Standard; Direct Final Rule (July 3,
2012).
Revision of Fee Schedules; Fee Recovery 78 FR 39479.
for Fiscal Year 2013 (July 1, 2013).
Survey of NRC's Materials Licensees.... 85 FR 6225.
Small Business Size Standards: 84 FR 66561.
Calculation of Annual Average
Receipts; Final Rule (December 5,
2019).
Small Business Size Standards: 84 FR 34261.
Adjustment of Monetary-Based Size
Standards for Inflation.
Receipts-Based NRC Size Standards; 86 FR 39980.
Proposed Rule (July 26, 2021).
SECY-20-0111, ``Rulemaking Plan to ML20268B327.
Amend the Receipts-Based NRC Size
Standards (NRC-2014-0264).
[[Page 8946]]
FY 2021 U.S. Nuclear Regulatory ML21105A750.
Commission Small Entity Compliance
Guide.
------------------------------------------------------------------------
List of Subjects
10 CFR Part 2
Administrative practice and procedure, Antitrust, Byproduct
material, Classified information, Confidential business information,
Environmental protection, Freedom of information, Hazardous waste,
Nuclear energy, Nuclear materials, Nuclear power plants and reactors,
Penalties, Reporting and recordkeeping requirements, Sex
discrimination, Source material, Special nuclear material, Waste
treatment and disposal.
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 amending
10 CFR parts 2 and 171 as follows:
PART 2--AGENCY RULES OF PRACTICE AND PROCEDURE
0
1. The authority citation for part 2 continues to read as follows:
Authority: Atomic Energy Act of 1954, secs. 29, 53, 62, 63, 81,
102, 103, 104, 105, 161, 181, 182, 183, 184, 186, 189, 191, 234 (42
U.S.C. 2039, 2073, 2092, 2093, 2111, 2132, 2133, 2134, 2135, 2201,
2231, 2232, 2233, 2234, 2236, 2239, 2241, 2282); Energy
Reorganization Act of 1974, secs. 201, 206 (42 U.S.C. 5841, 5846);
Nuclear Waste Policy Act of 1982, secs. 114(f), 134, 135, 141 (42
U.S.C. 10134(f), 10154, 10155, 10161); Administrative Procedure Act
(5 U.S.C. 552, 553, 554, 557, 558); National Environmental Policy
Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 3504 note.
Section 2.205(j) also issued under 28 U.S.C. 2461 note.
0
2. In Sec. 2.810, revise paragraphs (a)(1) and (b) to read as follows:
Sec. 2.810 NRC size standards.
* * * * *
(a) * * *
(1) Concern that provides a service or a concern not engaged in
manufacturing with average gross receipts of $8.0 million or less over
its last 5 completed fiscal years; or
* * * * *
(b) A small organization is a not-for-profit organization which is
independently owned and operated and has annual gross receipts of $8.0
million or less.
* * * * *
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
0
3. 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. 2215; 44 U.S.C. 3504
note.
0
4. In Sec. 171.16, revise paragraph (c) to read as follows:
Sec. 171.16 Annual fees: Materials licensees, holders of certificates
of compliance, holders of sealed source and device registrations,
holders of quality assurance program approvals, and government agencies
licensed by the NRC.
* * * * *
(c) A licensee who is required to pay an annual fee under this
section, in addition to 10 CFR part 72 licenses, may qualify as a small
entity. If a licensee qualifies as a small entity and provides the
Commission with the proper certification along with its annual fee
payment, the licensee may pay reduced annual fees as shown in table 1
to this paragraph (c). Failure to file a small entity certification in
a timely manner could result in the receipt of a delinquent invoice
requesting the outstanding balance due and/or denial of any refund that
might otherwise be due. The small entity fees are as follows:
Table 1 to Paragraph (c)
------------------------------------------------------------------------
Maximum annual
fee per
NRC small entity classification licensed
category
------------------------------------------------------------------------
Small Businesses Not Engaged in Manufacturing (Average
gross receipts over the last 5 completed fiscal years):
$555,000 to $8 million.............................. $4,900
Less than $555,000.................................. 1,000
Small Not-For-Profit Organizations (Annual Gross
Receipts):
$555,000 to $8 million.............................. 4,900
Less than $555,000.................................. 1,000
Manufacturing Entities that Have An Average of 500
Employees or Fewer:
35 to 500 employees................................. 4,900
Fewer than 35 employees............................. 1,000
Small Governmental Jurisdictions (Including publicly
supported educational institutions) (Population):
20,000 to 49,999.................................... 4,900
Fewer than 20,000................................... 1,000
Educational Institutions that are not State or Publicly
Supported, and have 500 Employees or Fewer:
35 to 500 employees................................. 4,900
Fewer than 35 employees............................. 1,000
------------------------------------------------------------------------
[[Page 8947]]
* * * * *
Dated: January 27, 2022.
For the Nuclear Regulatory Commission.
Cherish K. Johnson,
Chief Financial Officer.
[FR Doc. 2022-03146 Filed 2-16-22; 8:45 am]
BILLING CODE 7590-01-P
