ML19332B488
| ML19332B488 | |
| Person / Time | |
|---|---|
| Issue date: | 09/20/1986 |
| From: | Rich Smith NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Holloway C NRC OFFICE OF ADMINISTRATION (ADM) |
| Shared Package | |
| ML19332B436 | List: |
| References | |
| FRN-54FR49763, RULE-PR-170, RULE-PR-170-MISC AD23-1-12, NUDOCS 8610240395 | |
| Download: ML19332B488 (3) | |
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UNITED STAfts.
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NUCLE AR REGULATORY COMMISSION a
a wasenwetow.e.c. puts stP to as6 l
Mrh10RANDUf.1 FOR: C. Jamer.- Holloway, Jr..
I Acting-Director License Fee finnpment Sttsff ADM i
FRO!.1:
Ronald M. Smith, Attorney g
Office of the General Counsel I
SUBJECT:
EXEMPTIONS FROM FEES PURSUANT TD}(
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10 CFR 170.11(A)(4) 9 Reference is made to your' memoranda of Septemtbr$.-4 sintI 1
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- 1986, respectively, which requested our: opinion regarding - the interpretation and appHeation of the exemption provisions contained-in 10 i
CFR 170.11(a)(4).
Specincally, you provided further background on the issue of how this provision should be interpreted, particularly in light of i
l past agency practice.
To summarise, the NRC has Mmited. exemptions under-thic provision to those, instances where the Heensed material < was used in the teaching, and training; of students.
SimHarly. use or i
possession of licensed material.. by nonpront educational. institutions! for i'
" medical purposes" has been' limited. for exemption-purposes, to those-instances where the " medical purpose
- directly involved the teaching. and j
training of students.
Further examination of the-issue-results. in essentiauy the same advloe as provided in the March 31,1986' opinion' regarding an exemption from -fees
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for Marine Biological Laboratory.
Although not directly on point, it is notaworthy that in estabushing the annual. charge requirement for the NRC under sectnen 7601 of the: ConsoHdated-Budget Reconciliation Act of 1985 l
(COBRA), 99 - P. Law-272 ~ (1988), bothn houses = of Congress - expressed concern' with. the impact of: current fee-schedules on some entitles.
I Spadha.ny, it was-statedtin' Me-House - and Senatet ' Statement of Managers re NRC Fees" that "It is the intention of the conferees = that, because, certain Commission: Hoensees, such-as universities, hospitals, research and medical institutions,
- and, uranium procuoers e nave j
undted absnty to pass through the-oost of these' charges 1(annual; cheiges)-
to the ultimate consumer, thes r-4malan should take this factor ;into account in deteredning whetherr to-modify - the: r'-ta= tan's current isee-schedule 8er such 38a=====a(emphassa acced). Based on the 6 in COBRA, it would not-be unreasonable to conclude that the stated ooneern of Congress goes beyond the subject of ar.nual fees or charges.
Closer exandnation of section 170.11(a)(4) indicates that it lends itself to 1
much broeder interpretation.
When read in its entirety, this section also provides that the exemption from fees apphes to a 'Heense... issued' to a l
nonprofit educational institution...for-byproduct material...to be used...in j
' connection with a faciHty...used for teaching, trainin r, or medical purposes, except-human uso" (emphaess, added).
Read It erally, it could. be concluded that. any use of the Hoense, so long, as that:use is aa==aatec to i
gsto.z%3W XA y.
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l the nonprofit educational institution, would be exempt from fees.
l However, such a broad application of the exemption could be considered to be contrary to the public policy contained in the exemption.
For example, j
some work donc by nonprofit educational institutions may not be done -
purely for educational purposes.
l Based on this opinion and the opinion in our March 31 memorandum l
referenced above, the_ra_ is no Im-al chiection to applying an exemption - l l
under 10 CFR' 171.11(a)(4) more* broadly.
E=ah - m_chan in practice l
would be prospective in appucation.
It would not be soary to makes any refund of fees previously collected.
The recently stated intent of Congress in relation to this class of Heensees, referenced above, could be--
cited as the basis for this change in practice.
Accordingly, it is recommended
- that, consistent with the criteria in our March 31 i
memorandum and this opinion, appropriate exemptions be acknowledged under the provisions of section 170.11(a)(4).
The. criteria for applying an 1
exemption are:
(1) nonprofit educational institutions l
(2) licensed material used for teaching, training, or medical purposes, except human use; and.
(3) use of licensed material for medical purposes must (a) be directly related to leaching er training of students,sor (b) be accompHahed in support of or for the purpose of advancing the teaching or training students, e.g.,
i medical research by faculty or others in support-of
, teaching or training objectivos.
This approach does not greatly expand prior paractice and is centered on education, i.e., teaching and training.
However, not addressed-is: the issue of pure research or research done under Government contract by nonprofit educational institutions, as raised-in some of the examples. you provided.
There may be k practical problem of determining whether research using licensed materials is for pure research, that is research done primarily to advance knowledge-(no fee ?), or toward a commercial end.
Secondly, it may be unHkely that licensed material would be used exclusively for pure research or solely to carry out Government contracts.
l Nevertheless,' if such were thet case, it would' Seet: appropriate to exempt those Hoenses under section'170.11(a)(4), as well. But, the key would be' exclusive-use of the licensed-material; for one or more of the purposes l
addressed in this. opinion if further-problems of interpretation are to be e 'nindsed.. If these two categories were to be added the criteria might be as follows:
Pure research: (1) nonprofit educational institution:
(2) licensed material used exclusively for research for the purpose of advancing knowledge, i.e., pure 4
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research, rather than toward a profit making resulti/
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(3) the research is connected with teaching, training or medical purposer, except human use.
Government contract:
(1) nonprofit educational institutien,
(3) licensed material used exclusively to meet i
contractual requirements with the Federa!
government: *-d.
(3) the contract concerns teaching, training, or i
medical purposes, except human use.
- m. M i
aid M. Smith, Attorney noe of the General Counsel i
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