2020-10831. Categorization of the Licensee Fee Category for Full-Cost Recovery

AGENCY:

Nuclear Regulatory Commission.

ACTION:

Petition for rulemaking; closure of petition.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) has partially granted and partially denied a request to amend the NRC's regulations for licensing fees assessed to certain water treatment facilities. The request was submitted by Christopher S. Pugsley, Esq., on behalf of Water Remediation Technology, LLC (WRT), in a petition for rulemaking. This action closes the petition docket.

DATES:

The docket for the petition for rulemaking, PRM-170-7, closed on June 4, 2020.

ADDRESSES:

Please refer to Docket ID NRC-2018-0172 when contacting the NRC about the availability of information for this petition. You may obtain publicly-available information related to this action by any of the following methods:

• Federal Rulemaking Website: Public comments and supporting materials related to this petition can be found at https://www.regulations.gov by searching on the petition Docket ID NRC-2018-0172 or the fiscal year (FY) 2019 proposed and final fee rules Docket ID NRC-2017-0032. Address questions about NRC dockets to Carol Gallagher; telephone: [phone]; email: [e-mail]. For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.
• The NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Document 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, at 301-415-4737, or by email to [e-mail]. The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in the SUPPLEMENTARY INFORMATION section.
• Attention: The Public Document Room (PDR), where you may examine and order copies of public documents is currently closed. You may submit your request to the PDR via email at [e-mail] or call 1-800-397-4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Anthony Rossi, Office of the Chief Financial Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: [phone]; email: [e-mail].

SUPPLEMENTARY INFORMATION:

I. The Petition

The NRC received and docketed a petition for rulemaking (PRM) (ADAMS Accession No. ML18214A757), PRM-170-7, dated July 2, 2018, filed by the petitioner on behalf of WRT. On November 2, 2018 (83 FR 55113), the NRC published a notice of docketing. The NRC did not institute a public comment period for this PRM because the NRC considered the issues raised in the petition in the FY 2019 proposed fee rule (84 FR 578; January 31, 2019), and the public had an opportunity to comment during that process.

The NRC identified three issues in the petition, as follows:

Issue 1: The petitioner requested that the NRC amend its regulations under part 171 of title 10 of the Code of Federal Regulations (10 CFR), “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,” to re-categorize licensees performing water treatment services (e.g., WRT) from a full-cost recovery category to a category with a fixed annual fee.

Issue 2: The petitioner requested that the NRC address consistency issues between 10 CFR part 170, “Fees for Facilities, Materials, Import and Export Licenses, and Other Regulatory Services under the Atomic Energy Act of 1954, as Amended,” and 10 CFR part 171 for small entities.

Issue 3: The petitioner requested that the NRC consider amending language under § 170.11, “Exemptions,” to extend the timeframe within which a licensee may appeal the assessment of fees and apply for a fee exemption from 90 days to 180 days.

Before filing this petition, the petitioner had made similar requests in public comments (ADAMS Accession No. ML18057B073) submitted on the FY 2018 proposed fee rule (83 FR 29622; June 25, 2018). In PRM-170-7, the petitioner asked the NRC to consider the rule changes in the FY 2019 fee rulemaking.

II. Public Comments on the Petition

The notice of docketing of PRM-170-7 did not request public comments; however, the NRC did request comments on the issues raised in the petition in the FY 2019 proposed fee rule. The comment period closed on March 4, 2019, and the NRC received one comment submission (ADAMS Accession No. ML19064B347) that was from the petitioner and expressed support for the proposed changes with respect to PRM-170-7.

III. Reasons for Consideration

The petitioner assists small community water systems with compliance with uranium drinking water standards. The petitioner asserted that its licensed operations are not intended to produce source material for its commercial value, thereby reducing the financial benefit to the licensee as compared to uranium recovery facilities that process ore primarily for its source material content. Further, the petitioner stated that it treats the source material as a contaminant, rather than as a commodity. The petitioner explained that it only receives payment for services to remove uranium from drinking water or other water sources; therefore, it does not profit from processing the source material itself. The petitioner asserts that uranium water treatment licensees should be re-categorized from their current designation of full-cost fee recovery licensees under fee category 2.A.(5), “Licenses that authorize the possession of source material related to removal of contaminants (source material) from drinking water,” to the annual fee category 2.F, “All other source material licenses,” of 10 CFR 170.31 and 171.16.

Additionally, the petitioner asserted that, because small entities have limited employees, market share, and revenue, it makes sense to charge small entities fixed fee amounts. The petitioner concluded that because of its current small entity designation for 10 CFR part 171 annual fees under the NRC's regulations, and the nature of its licensed operations, it should be re-designated under the 10 CFR part 170 fee category and charged a fixed-fee amount.

The NRC reviewed PRM-170-7, WRT's public comment on the FY 2018 proposed fee rule, and related documentation and addressed the first two requests raised in the petition in its FY 2019 fee rule, issued on May 17, 2019 (84 FR 22331). At the time of filing of the petition, an entity that removed uranium from drinking water at community water systems (e.g., WRT) was viewed as a fee category 2.A.(5) licensee under §§ 170.31 and 171.16. Additionally, at that time, fee category 2.A.(5) required full-cost recovery of fees under 10 CFR part 170 for all licensing and inspection activities and assessed an annual fee.

Based on its review, the NRC concluded that full-cost recovery is not warranted for licensees that remove contaminants from drinking water. Therefore, in its FY 2019 fee rule, the NRC addressed the first two of the three petition requests by eliminating fee category 2.A.(5) under §§ 170.31 and 171.16, and categorizing existing and future uranium water treatment licensees as fee category 2.F. Because of the elimination of fee category 2.A.(5) and the use of category 2.F., uranium water treatment licensees such as WRT shifted from a 10 CFR part 170 full-cost fee category to a flat-fee category. Moreover, licensees in the 2.F. fee category, including WRT, may qualify for the small entity reduced fee. Therefore, the NRC finds this action addresses the first two issues submitted in the petition.

IV. Reasons for Denial

The NRC is denying the third change requested by the petitioner, which was related to the timeframe to appeal the assessment of fees under § 170.11(c). The petitioner stated that it disagrees with the 90-day timeframe in § 170.11(c), which was added in the FY 2018 fee rule, and requested that the NRC extend the timeframe to apply for a fee exemption to 180 days. The petitioner asserted that the current regulation does not allow an applicant or licensee enough time to assess NRC's billings, its progress on an application or other work, and whether there are grounds for an exemption request. The petitioner also stated that an applicant or licensee should not be restricted regarding when it can request an exemption.

The 90-day timing requirement only applies to those exemption requests for special projects submitted under § 170.11(a)(1), which states that no application fees, license fees, renewal fees, inspection fees, or special project fees shall be required for a special project that is a request/report submitted to the NRC. Therefore, the 90-day timeframe is limited to only those who are seeking fee exemptions after submitting a request or report to the NRC under § 170.11(a)(1). This timing requirement does not apply to applicants or licensees that submit an application for the routine licensing activities addressed in the petition. For these licensing activities, an applicant or licensee may request an exemption pursuant to § 170.11(b) at any time. In addition, § 170.51, “Right to review and appeal of prescribed fees,” all debtors' requests for review of the fees assessed and appeal or disagreement with the prescribed fee (staff hours and contractual) must be submitted in accordance with the provisions of 10 CFR 15.31, “Disputed Debts.” Under § 15.31(a), a debtor who disputes a debt shall explain why the debt is incorrect in fact or in law within 30 days from the date that the initial demand letter was mailed or hand-delivered. The petitioner did not indicate any concerns related to these requirements. For these reasons, the NRC is denying the third change requested by the petitioner.

V. Conclusion

For these reasons, the NRC granted the first two requested changes in PRM-170-7 in the FY 2019 final fee rule, and is denying the third requested change. This action closes docket PRM-170-7.

Dated: May 14, 2020.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook,

Secretary of the Commission.