ML20351A351
| ML20351A351 | |
| Person / Time | |
|---|---|
| Issue date: | 01/13/2021 |
| From: | Clay Johnson NRC/OCFO |
| To: | Bingham B Homestake Mining Co of California |
| smh | |
| Shared Package | |
| ML20351A353 | List: |
| References | |
| EA-16-114 | |
| Download: ML20351A351 (3) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001 January 13, 2021 Mr. Brad R. Bingham Closure Manager Homestake Mining Company of California P.O. Box 98 Grants, NM 87020
Dear Mr. Bingham:
On behalf of the U.S. Nuclear Regulatory Commission (NRC), I am responding to your letter dated November 19, 2020 (Agencywide Documents Access and Management System (ADAMS)
Accession No. ML20325A350). In your letter, you request a fee exemption under Section 170.11(b) of Title 10 of the Code of Federal Regulations (10 CFR) for costs related to Confirmatory Order EA-16-114, which the NRC issued to Homestake Mining Company of California (HMC) on March 28, 2017.
The NRC has established regulations for the granting of fee exemptions. In this case, the applicable regulation is 10 CFR 170.11, Exemptions, and a person may apply for an exemption in accordance with 10 CFR 170.5, Communications.1 The NRC staff has reviewed your request based on the following provisions:
10 CFR 170.11(b) The Commission may, upon application by an interested person, or upon its own initiative, grant such exemptions from the requirements of this part as it determines are authorized by law and are otherwise in the public interest. Applications for exemption under this paragraph may include activities such as, but not limited to, the use of licensed materials for educational or noncommercial public displays or scientific collections.
10 CFR 170.11(a)(13) All fee exemption requests must be submitted in writing to the Chief Financial Officer in accordance with § 170.5, and the Chief Financial Officer will grant or deny such requests in writing.
In your letter you state that you are seeking an exemption from future 10 CFR Part 170 fees (user fees) for (1) NRC inspection or review work to ensure compliance with the terms of the confirmatory order, and (2) NRC review of license amendment requests that in your view are directed by the [c]onditions of the order. You state that an exemption is appropriate because, during the alternative dispute resolution sessions that preceded the confirmatory order, HMC did not understand that NRC activities related to the order would generate user fees. Additionally, you state that, if HMC had understood these activities were fee-recoverable, it could have attempted to negotiate different terms for the order.
1 10 CFR 170.5 provides that All communications concerning the regulations in this part should be addressed to the NRCs Chief Financial Officer, either by mail to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRCs offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD-ROM.
B. Bingham Unfortunately, this reasoning does not support granting an exemption. There is nothing in the confirmatory order suggesting that NRC activities related to the order are exempt from user fees; in fact, the order does not mention fees at all. Moreover, if HMC believed the NRC should not charge user fees for the agencys work related to the order, it had ample opportunity to raise that issue in a timely manner. The NRC issued the confirmatory order to HMC in March 2017.
The NRC thereafter charged HMC user fees related to the order for approximately two years, before pausing these fees as the agency considered changes to relevant provisions in its fee rules. HMC paid these user fees, and at no time did it dispute the fees as being inconsistent with either the terms of the order or with the NRCs fee rules. In particular, HMC never filed a timely fee dispute under 10 CFR 15.31, Disputed debts.
You also state that an exemption is appropriate because, although the NRC recently removed a regulatory provisionfootnote 2 of 10 CFR 170.31excluding services related to certain orders from user fees, the NRCs stated purpose in removing this exclusion was to recover costs where the NRCs services enable the licensee to maintain its NRC license in good standing and continue operating its facility. You state that this rationale does not apply to HMC, where the operation of its facility is directed toward the goal of completing cleanup activities and eventually decommissioning the facility, and where there is no commercial recovery or use of licensed materials involved.
Likewise, this reasoning does not support granting an exemption either. As the NRC explained in the Federal Register notice for its rule change, under the Independent Offices Appropriation Act (31 U.S.C. 9701) and Office of Management and Budget Circular A-25 (User Charges), the NRC must collect user fees from any person who derives a direct benefit from the agencys services.2 As the fee schedules in 10 CFR 170.21 and 170.31 reflect, commercial operating facilities are not the only persons who receive a direct benefit from the NRCs services.
Furthermoreand as the NRC explained in the Federal Register noticeeven if a licensee is not using licensed materials for commercial purposes, user fees are appropriate where the licensee derives other benefits from the NRCs services, such as the ability to maintain its license in good standing or increased confidence that its facility is operating safely.
As such, your request does not support the NRC granting an exemption pursuant to 10 CFR Part 170.11(b). I also do not find any other basis that would support the NRC granting an exemption on its own initiative.
If you have any questions regarding this matter, please contact Mr. William Blaney, of my staff, at 301-415-5092.
Sincerely, Signed by Johnson,Cherish on 01/13/21 Cherish K. Johnson Chief Financial Officer 2
Revision of Fee Schedules; Fee Recovery for Fiscal Year 2020, 87 Fed. Reg. 37,250, 37,262 (June 19, 2020).
SUBJECT:
LETTER TO BRAD BINGHAM RESPONSE TO FEE EXEMPTION FOR HOMESTAKE MINING COMPANY OF CALIFORNIA FOR COSTS RELATED TO CO EA 114 DATED:
January 13, 2021 DISTRIBUTION:
K.Riner, OCFO NAridi, OCFO RidsOeMailCenter Resource RidsNmssOd Resource ADAMS:
- Yes No Initials: WB SUNSI Review: WB
- Publicly Available Non-Publicly Available Sensitive
- Non-Sensitive ADAMS Accession No: ML20351A353 (package); ML20351A350 (incoming);
ML20351A351 (letter)
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