    Authority of the Nuclear Regulatory Commission to Collect
              Annual Charges from Federal Agencies


T h e N u clear R eg u latory C om m ission has statutory authority to collect annual charges from
     fed eral ag en cies th at hold licenses issued by the NRC.


                                                                                        July 30, 1991

                 M e m o r a n d u m O p in io n   fo r th e   G e n e r a l Co u n s e l
                           N u c l e a r Re g u l a t o r y Co m m   is s io n




   This memorandum responds to your request for our opinion whether sec­
tion 6101 o f the Omnibus Budget Reconciliation Act of 1990 (OBRA), Pub.
L. No. 101-508, 104 Stat. 1388, 1388-298, authorizes the Nuclear Regula­
tory Commission (“NRC”) to collect annual charges from federal agencies
that hold NRC licenses. We conclude that section 6101 of OBRA does
authorize the NRC to collect such charges.

                                                   I.


    Section 6101(a) of OBRA requires that the NRC “shall annually assess
and collect such fees and charges as are described in subsections (b) and
(c).” Id. § 6101(a)(1), 104 Stat. at 1388-298. Subsection (b) sets forth the
user fees that the NRC shall collect:

         (b) Fees for Service or Thing o f Value. — Pursuant to sec­
         tion 9701 of title 31, United States Code, any person who
         receives a service or thing of value from the Commission shall
         pay fees to cover the Commission’s costs in providing any
         such service or thing of value.

Id. § 6101(b), 104 Stat. at 1388-298 to 299. Section 9701 of title 31, United
States Code, authorizes federal agencies to collect fees for “each service or
thing of value provided by [the agency] to a person (except a person on
official business o f the United States Government).” 31 U.S.C. § 9701(a).

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It is settled law that federal agencies may not charge other federal agencies
user fees under section 9701,1 see 56 Comp. Gen. 275, 277 (1977), and we
understand that you are not intending to do so.

    Subsection (c) of section 6101 sets forth the annual charges that the NRC
is to collect:

          (c) Annual Charges. —

               (1) Persons Subject to Charge. — Any licensee of the
          Commission may be required to pay, in addition to the fees
          set forth in subsection (b), an annual charge.
               (2) Aggregate Amount of Charges. — The aggregate
          amount of the annual charge collected from all licensees shall
          equal an amount that approximates 100 percent of the budget
          authority of the Commission in the fiscal year in which such
          charge is collected, less any amount appropriated to the Com­
          mission from the Nuclear Waste Fund and the amount of fees
          collected under subsection (b) in such fiscal year.
               (3) Amount Per Licensee. — The Commission shall es­
          tablish, by rule, a schedule of charges fairly and equitably
          allocating the aggregate amount of charges described in para­
          graph (2) among licensees. To the maximum extent practicable,
          the charges shall have a reasonable relationship to the cost of
          providing regulatory services and may be based on the alloca­
          tion of the Commission’s resources among licensees or classes
          of licensees.

OBRA § 6101(c), 104 Stat. at 1388-299. On April 12, 1991, the NRC
published a proposed rule that would establish annual charges pursuant to
section 6101(c). See 56 Fed. Reg. 14,870 (1991). In the proposed rule, the
NRC stated its intention to levy annual charges on all licensees, including
federal agencies. Ten federal agencies submitted comments opposing the
proposed rule on the grounds that the NRC should not impose annual charges
on other government agencies.2 You then requested a legal opinion from this
Office on the legality of imposing annual charges on federal agencies.3 We



  1 O f course, other statutes may authorize the collection of user fees from government agencies. See 42
U.S.C. § 2201(w) (authorizing the NRC to collect certain fees “ from any other Government agency” ).
  ! The ten agencies are the Departments of Commerce, Energy, Interior, and Veterans Affairs, the E nvi­
ronm ental Protection Agency, the National Aeronautics and Space Administration, the Defense N uclear
Agency, and the m ilitary Departments of the Army, Navy and Air Force.
  5 You have agreed to be bound by our opinion. See Letter for J. Michael Luttig, Assistant Attorney
General, Office of Legal Counsel, from William C. Parler, General Counsel, Nuclear Regulatory C om ­
mission (May 20, 1991).

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requested the views o f the ten interested agencies and all but one have re­
sponded.4 Two agencies (Commerce and NASA) expressed the view that the
NRC lacked legal authority to impose annual charges on them. Two agen­
cies (EPA and Veterans Affairs) took no position on the legal issue. The
Department of Defense, representing five of the interested agencies, con­
cluded that the NRC could impose annual charges. We will refer to these
comments as appropriate in this memorandum.

                                                      II.

   By its terms, section 6101(c)(1) provides that “[a]ny licensee o f the Com­
mission" may be required to pay an annual charge. The term “licensee of
the Commission” is not defined in section 6101 or elsewhere in OBRA.
Nevertheless, the structure o f the Atomic Energy Act of 1954 as a whole
makes clear that federal agencies are within the class of licensees. The Act
requires “any person” to obtain a license from the Commission5 in order to
conduct activities regulated under the Act, 42 U.S.C. §2131, and the term
“person” is defined in section 11 (s) of the Act to include “Government
agencfies] other than the Commission.”6 42 U.S.C. § 2014(s). Additionally,
the Act expressly permits federal agencies authorized to engage in the pro­
duction, marketing and distribution of electric energy to obtain commercial
licenses. See 42 U.S.C. § 2020. Thus, because the NRC’s regulatory au­
thority clearly extends to the licensing of federal agencies, the term “licensee
o f the Commission” as used in OBRA refers to all licensees, including gov­
ernment agencies.
    The conclusion that section 6101(c)(1) covers all licensees of the Com­
mission is reinforced by the requirements of paragraphs (2) and (3) o f that
section. Paragraph (2) requires that the aggregate amount of the annual
charges collected from “all licensees” approximate 100% of the Commission’s
budget authority (less the amount of user fees collected and other specified
amounts). Paragraph (3) requires that, to the extent practicable, annual charges
shall have a “reasonable relationship” to the cost of providing regulatory
services to the particular licensee or class of licensees being charged. If the
Commission were to exempt federal licensees, other licensees would have to
bear costs not directly related to the cost of providing service to them.
  4 We requested that the Defense Nuclear Agency and the military departments consolidate their views
into a single subm ission from the Departm ent of Defense. The Department of Energy informed us that
the view s o f its one interested component. Naval Reactors, would also be incorporated into D efense's
subm ission. The D epartm ent of the Interior did not subm it any views.
  ’ The “Com m ission” referenced throughout the Atomic Energy Act is the Atomic Energy Commission,
which has been abolished. See 42 U.S.C. § 2014(f) (defining the “Commission"); 42 U.S.C. § 5814(a)
(abolishing the Com m ission). The functions of the Atomic Energy Commission were transferred to the
N RC and the Energy Research and Developm ent Administration in the Department o f Energy. See 42
U.S.C . § 5 8 4 1 (0 , (g );4 2 U.S.C. § 5814(b), (c). Because all o f the licensing functions are assigned to the
NRC , see 42 U.S.C. § 5841 (0 , (g), we will treat all references to the “Commission” in the Atomic Energy
Act as references to the NRC.
  6 "G overnm ent agency” is broadly defined to include "any executive departm ent,. . . or other establish­
m ent in the executive branch o f the Governm ent.” 42 U.S.C. § 2014(1).

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Given the “reasonable relationship” requirement, it would be anomalous to
construe the statute so that the Commission is prohibited from setting the
charges based on a direct, one-to-one relationship to the costs of providing
services to a licensee or class of licensees.
    In its response to our request for comments, the Department of Com­
merce argues that the dependent clause in section 6101(c)(1), “in addition to
the fees set forth in subsection (b),” limits the universe of licensees subject
to the annual charge. Under Commerce’s view, Congress intended that the
annual charge be levied as an additional element to the user fees authorized
under section 6101(b) and 31 U.S.C. § 9701. Thus, only those licensees that
are subject to a user fee under 31 U.S.C. § 9701, which excludes govern­
ment agencies, would be subject to the additional annual charge. We disagree.
    Under the ordinary rules of English grammar, the dependent clause “in
addition to” cannot be construed as modifying the subject of the sentence,
“ [a]ny licensee of the Commission.” Rather, the clause modifies “to pay . . .
an annual charge,” making explicit that a licensee paying user fees under
section 6101(b) must pay the annual charge in addition to the user fees and
may not offset the expense of the user fees against the annual charge. A
licensee that pays an annual charge but, for whatever reason, pays no user
fees under section 6101(b) can still be described as paying its annual charge
“in addition to the fees set forth in subsection (b).” The annual fee is “in
addition to” the licensee’s user fee liability, which, in the case of federal
agencies, happens to be zero.
    While the legislative history of OBRA does not expressly address the
NRC’s authority to assess annual charges against federal agencies, two state­
ments in the legislative history tend to confirm the plain meaning of section
6101(c). First, the Conference Report states that section 6101(c) authorizes
the NRC “to assess annual charges against all of its licensees.” H.R. Conf.
Rep. No. 964, 101st Cong., 2d Sess. 961 (1990) (emphasis added). This
statement is perhaps even more explicit than the text of section 6101(c)(1).
Second, in 1986, when the first provision that authorized the NRC to collect
annual charges was enacted into law, see the Consolidated Omnibus Budget
Reconciliation Act of 1985, Pub. L. No. 99-272, § 7601, 100 Stat. 82, 146
(1986), the conference managers explained that the annual charges were
“intended . . . to establish a standard separate and d istin ct from the
Commission’s existing authority under [31 U.S.C. § 9701].” 132 Cong. Rec.
4887 (1986) (emphasis added) (adoption of statement in Senate); id. at 3797
(same in House). See also H.R. Conf. Rep. No. 964, at 961 (reaffirming the
statement of the managers). This statement militates against construing the
annual charges provision consistent with the limitations of 31 U.S.C. § 9701.
                                     III.
   Based on a plain meaning of the text of section 6101(c) of OBRA, we
conclude that the NRC can impose annual charges on government agencies.


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Both agencies that argued against the legality o f the NRC’s action, however,
argued that such a result should be rejected in the absence of an explicit
 statem ent o f Congressional intent. Assuming arguendo that the plain mean­
 ing of the text does not provide such a statement, we have searched to see if
any background principle of law or canon of construction would require a
clear statement of Congressional intention. We have found none.
    The Department of Commerce argues that the NRC proposal violates
established fiscal law. Contrary to Commerce’s views, agencies that pay the
annual charges out of their appropriations will not violate 31 U.S.C. § 1301(a),
which requires that appropriated funds be applied only to the objects for
which the appropriations were made. An agency that holds an NRC license
as part o f its mission already expends appropriations in obtaining the license
(e.g., the salary of the employee who fills out the application for the li­
cense). Paying an annual charge will be just an additional expenditure.
    Nor does 31 U.S.C. § 1532, which requires authorization by law to with­
draw funds from the appropriation account and credit them to another, preclude
annual license charges to federal agencies where those charges are deposited
into the general fund of the Treasury. The annual charges collected by the
NRC are not credited to an “appropriation account” but are deposited into
the general fund of the Treasury pursuant to the miscellaneous receipts stat­
ute, 31 U.S.C. § 3302(b). Funds deposited into the general fund of the
Treasury are not appropriated funds and are not available for expenditure.
    We have also determined that the so-called “anti-augmentation” principle
is inapplicable in these circumstances. The “anti-augmentation” principle is
“a general rule that an agency may not augment its appropriations from
ou tside sources without specific statutory authority.” Principles o f Federal
A ppropriations Law 5-62 (GAO 1982) (emphasis added). The anti-augmen­
tatio n p rin c ip le prohibits augm entation from both governm ent and
non-government sources. This principle is not applicable here because sec­
tion 6101(c) provides express statutory authority for the NRC to recover
100% o f its budget authority through user fees and annual charges from
outside sources. Moreover, the user fees and annual charges will not aug­
m ent the N R C ’s budget because, as previously mentioned, they will be
deposited into the general fund of the Treasury.7



   7 We note in passing that it is not unprecedented for one government agency to charge another for goods
or services, or even to impose fines on another, even though the authorizing statutory section does not
expressly reference governm ent agencies. See, e.g., FBI Authority To Charge User Fees For Record
C heck Services, 15 Op. O.L.C. 18 (1991) (concluding that Pub. L. No. 101-162, 103 Stat. 988, 998-99
(1989) authorizes the FBI to collect user fees from the State Department to process fingerprint identifi­
cation records and name checks); Memorandum for J. Paul McGrath, Assistant Attorney General, Civil
D ivision, from Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Recov­
ery o f Costs o f Representing Copyright R oyalty Tribunal in Distribution Disputes Pursuant to 17 U.S.C.
§ I I I (July 1, 1983) (Civil Division may charge the Copyright Royalty Tribunal for the provision of
certain legal services); Constitutionality o f N uclear Regulatory Commission's Im position o f Civil Pen­
a ltie s on the A ir Force, 13 Op. O.L.C. 131 (1989) (concluding that NRC could impose penalties on
ex ecu tiv e agency).

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                            CONCLUSION

   We conclude for the reasons stated that section 6101(c) of OBRA autho­
rizes the NRC to collect annual charges from other government agencies.

                                          JOHN O. MCGINNIS
                                    Deputy Assistant Attorney General
                                        Office o f Legal Counsel




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