User Fees for Radon Proficiency Programs; Final Rule ENVIRONMENTAL PROTECTION AGENCY

SUMMARY: This rule establishes fees that EPA will collect annually to

support its voluntary radon proficiency programs. The rule requires

individuals and organizations applying to or participating in the

National Radon Measurement Proficiency (RMP) or the National Radon

Contractor Proficiency (RCP) programs to pay annual fees. Thirty days

after publication of the rule, primary measurement service

organizations in the RMP must pay an annual fee of $375 per device

entered or listed in the RMP program. Secondary measurement service

providers in the RMP must pay an annual fee of $75. Participants in the

individual proficiency component of the RMP program must pay an annual

fee of $150. Participants in the RCP program must pay an annual fee of

$200. State and local governments are exempted from these fees under

section 305 of the Toxic Substances Control Act, 15 U.S.C. 2665. Fees

for other proficiency program elements, such as training courses or

exams, may be proposed at a later date.

EFFECTIVE DATE: April 18, 1994.

FOR FURTHER INFORMATION CONTACT:

James W. Long, (202) 233-9433, U.S. EPA, Office of Radiation and Indoor

Air, 401 M Street SW. (6604J), Washington, DC 20460.

SUPPLEMENTARY INFORMATION:

I. Authority

Section 305 of the Toxic Substances Control Act, 15 U.S.C. 2665,

specifically, the Indoor Radon Abatement Act (IRAA) of 1988, 15 U.S.C.

2661 et seq., authorizes the Administrator of EPA to assess fees ``as

may be necessary to defray the costs'' associated with operating its

radon proficiency programs. This rule establishes fees for two

proficiency programs: The National Radon Measurement Proficiency

Program and the National Radon Contractor Proficiency Program. Fees for

other proficiency program elements, such as training courses or exams,

may be proposed later. Fees are authorized to be deposited into a

special account in the United States Treasury with amounts in the

account to be appropriated for administering these programs. State and

local governments are exempt from paying a fee to participate in the

programs covered by this rule.

This rule is cross-referenced to title 40 of the Code of Federal

Regulations (CFR) chapter I, subchapter R, part 700 that lists

regulations promulgated under the Toxic Substances Control Act (TSCA).

Although the IRAA was enacted as Title III of TSCA, this regulation is

listed under subchapter F of the CFR because it deals solely with a

radiation program.

II. Background

Radon is a naturally occurring odorless, invisible radioactive gas.

Radon comes from the radioactive decay of uranium. Radon can be found

in high concentrations in soils and rocks containing uranium, granite,

shale, phosphate, and pitchblende.

EPA, the American Lung Association, the American Medical

Association, and the U.S. Surgeon General have identified radon as the

second leading cause of lung cancer in the United States. EPA estimates

that between 7,000 to 30,000 lung cancer deaths are attributable to

exposure to radon in the U.S. each year. Homes with radon problems

occur in every State. EPA estimates that nearly 1 out of every 15 homes

in the U.S. has elevated radon levels.

EPA has developed proficiency programs to assist States in

addressing the radon problem. These proficiency programs are part of a

comprehensive Agency program to address the radon problem nationwide.

The IRAA directed EPA to develop voluntary proficiency programs to

evaluate the effectiveness of radon devices, organizations, and

operators. EPA operates two major proficiency programs to implement

this directive: the Radon Measurement Proficiency Program and the Radon

Contractor Proficiency Program. These programs assist States and

consumers in identifying capable radon service providers. The statute

also authorizes the collection of a user fee from applicants to each of

these programs.

EPA also established four Regional Radon Training Centers (RRTCs)

authorized by the IRAA. These centers provide a variety of radon

training courses, some of which train individuals seeking to enter the

radon measurement and mitigation business. They also assist States by

tailoring training programs to meet specific State needs.

EPA issued a proposed rule in the Federal Register, 55 FR 50492

(December 6, 1990), to establish a fee of $1,000 for each primary

device application to the RMP, $200 for each secondary method

application to the RMP, and $200 for each applicant for the RCP exam.

The proposed rule also included fees for EPA-provided training courses.

The comment period for the proposed rule closed on February 4, 1991.

About 100 comments were submitted to the Public Docket on the proposed

rule. This preamble includes responses to significant comments and

indicates changes to the rule, where applicable, as the result of the

public comments. Specific responses to comments and changes to the rule

are discussed in section IV to this preamble.

The fees that the Agency is initially establishing pursuant to

section 305 of the TSCA will recover less than the total costs of

administering the proficiency programs. For Fiscal Year (FY) 1992,

total Agency costs to operate the radon proficiency programs, including

both direct and indirect costs, were estimated as $2.6 million. EPA

expects similar costs for fiscal year 1994. The Agency expects to

collect about $830,000 during the first year that this rule is in

effect. EPA shall adjust the fees over the next five years to a level

that will ultimately be sufficient to recover the full annual costs of

the proficiency programs. Fees may also be adjusted to account for

inflation, changes in programs costs, etc. EPA will evaluate the

potential of its fee adjustments on the radon industry.

A. Overview of the National Radon Measurement Proficiency (RMP) Program

1. Overview of the RMP

EPA established the RMP program in 1986 to assist States and the

public in selecting qualified organizations to measure indoor radon and

radon decay products. Radon decay products are the radioactive isotope

which follow radon-222 in the decay chain, primarily polonium-218,

lead-214, bismuth-214, and polonium-214. Measurement organizations and

each of their primary radon measurement devices are tested. Those

organizations which meet the program's quality assurance requirements

are listed as successful participants in the ``National Radon

Measurement Proficiency (RMP) Program--National Proficiency Report.''

The RMP program is voluntary proficiency program.

The program emphasizes evaluating the proficiency of organizations

that provide radon measurement services and providing the public with

information on proficient radon measurement services organizations. The

RMP program also promotes the use of standard operating procedures and

improved quality assurance and control among members of the radon

measurement community.

Any individual or organization that provides indoor radon

measurement services may apply to RMP program. The application (EPA

520/1-91-008) and Radon Measurement Proficiency (RMP) Program Handbook

(EPA 520/1-91-006) may be obtained by calling the Radon Proficiency

Program Information Service (RIS) at (205) 272-2797 or by FAX at (205)

260-9051 or by writing to the Radon Proficiency Program Information

Service, c/o Sanford Cohen and Associates, Inc., 1418 I-85 Parkway,

Montgomery, AL, 36016. EPA will accept first-time applications or

application amendments any time during the year. Organizations in the

RMP program can be listed for two general types of radon measurement

service categorized as ``primary'' or ``secondary.'' It is possible

that organizations may be listed for both primary and secondary

services. Participants who offer radon measurement services that

include the capability to analyze or read radon measurement devices are

defined as ``primary'' for that device. Passage of a radon measurement

performance test is required for a participant offering primary

services to become listed as proficient. The test requires that

participants demonstrate their ability to analyze accurately the level

of radon to which their device was exposed and to report the correct

result. Successful participants are listed are proficient for a

specific type of radon measurement device. Participants are also tested

periodically to maintain their primary listing with a given device.

Participants who provide primary services must also operate using an

acceptable quality assurance plan, and meet other requirements as

described in the Radon Measurement Proficiency (RMP) Program Handbook,

EPA 520/1-91-006, February 1991.

Organizations that offer radon measurement services, but rely on

another party (a primary organization) for analysis or reading of the

measurement device, are defined as ``secondary'' for that method. This

type of service may include consulting with the consumer, placing and

retrieving the measurement device, or providing consumers with

measurement results. A provider of secondary measurement services does

not include over-the-counter retailers of measurement devices.

Requirements for secondary participants include operating according

to an acceptable quality assurance plan, using listed primary devices

and analysis services, and using appropriate procedures for conducting

radon measurements. Participants for secondary services also must meet

other requirements as described in the application package in the Radon

Measurement Proficiency (RMP) Program Handbook. Secondary measurement

service providers that meet program requirements are listed by the

measurement method they use instead of a specific device. It is

possible that organizations may be listed for both primary and

secondary services.

Currently, devices are classified within fifteen radon measurement

methods. There are twelve radon measurement methods for radon gas:

Alpha track detection (AT), activated charcoal adsorption (AC),

unfiltered track detection (UT), charcoal liquid scintillation (LS),

long-term and short-term electret-ion chamber ((EL) and (ES)

respectively), continuous radon monitoring (CR), grab radon/activated

charcoal (GC), grab radon/pump-collapsible bag (GB), grab radon/

scintillation cell (GS), evacuated scintillation cell (SC), and pump-

collapsible bag (PB). Currently, there are three working level radon

decay product measurement methods tested in the RMP: grab sampling-

working level (GW), continuous working-level monitoring (CW), and radon

progeny integrating sampling unit (RPISU). Additional methods may be

tested in the future as methods and protocols are developed.

As of October 1991, EPA estimated that approximately 600 firms are

participating in the RMP program and offering primary services with

about 1,200 devices. There are approximately 1,000 listed secondary

firms in the RMP program. The most recent National Proficiency Report

was published in October, 1993. Letters indicating participants'

current status in the program are issued on an ongoing basis.

2. Improvements to the RMP Since the Proposed Rule

Between 1989 and 1991, EPA conducted a major evaluation of the RMP

program. The program was also reviewed by EPA's Science Advisory Board

and the General Accounting Office. These reviews have resulted in a

number of program improvements, which include the following. 1. An

application may be submitted to EPA at any time rather than in

announced testing ``rounds,'' as was done prior to 1990. 2.

Organizations offering only secondary measurement services must submit

their own application, and must use RMP-listed organizations and

devices for the analysis or reading of the radon measurement devices

used. 3. The passing criteria for radon measurement proficiency tests

for primary devices were made more stringent. Prior to 1991, the

average error during performance tests had to be less than or equal to

25%. Now each device tested must have an error of less than or equal to

25%. EPA also now provides an opportunity to the organization to retest

if the test outcome for any device in a specific measurement method is

greater than 25% but less than 50% of EPA's target value. 4.

Proficiency determinations are now based on testing and listing

participants for a specific device within a measurement method. In the

past, those participants who successfully tested with a specific device

were sometimes listed for an entire method (a method may include many

different devices). 5. All participants are now required to adhere to a

valid Quality Assurance Plan. 6. Specific requirements intended for

individuals who provide radon measurements services to consumers on-

site (e.g., in a residence) have been developed by EPA. By April 1993,

organizations that participate in the RMP program must provide on-site

measurement services using individuals who have met the requirements of

the individual proficiency component of the RMP program. Organizations

who do not meet this requirement will be removed from listing in the

RMP program and its proficiency reports. EPA began a measurement

proficiency examination program in December 1991 as part of a larger

effort to ensure the proficiency of individuals who provide on-site

measurement services.

B. Individual Measurement Proficiency and the RMP Exam

EPA established individual proficiency requirements because the

quality and reliability of radon measurement services depend on the

ability of individual measurement contractors. Additionally, testing an

individual's knowledge should ensure that he or she is able to provide

informed answers to radon questions from the public.

The ``centerpiece'' of these requirements is the RMP measurement

exam. The RMP measurement exam tests an individual's ability to provide

radon measurement services in a residential environment. Other

individual proficiency requirements include: (1) Passing a biennial

reexamination; (2) meeting RMP program requirements for using listed

devices with listed organizations; and, (3) maintaining an affiliation

with an RMP listed organization. Upon completing the requirements,

participants will be listed in ``The National RMP Program--Individual

Proficiency Report.''

C. National Radon Contractor Proficiency (RCP) Program

EPA established the RCP program in the Fall of 1989 as required by

Congress under Section 305 of TSCA. The RCP program was developed to

evaluate radon mitigation contractors and provide information on

proficient radon mitigation contractors to the public. Like the RMP, it

is a voluntary proficiency program.

Randon mitigation contractors are typically construction and

residential service contractors who provide radon mitigation services

to the public. To participate successfully in the program, a radon

mitigation contractor must meet the following requirements: (1)

Successfully complete an EPA approved 16-hour hands-on mitigation

training course; (2) pass the national mitigation proficiency exam; (3)

conduct business according to EPA's Radon Mitigation Standards; and (4)

pass a re-examination every two years. The names of those applicants

who meet program requirements are listed in the EPA ``National Radon

Contractor Proficiency (RCP) Program--Proficiency Report.''

III. Provisions of the Rule

A. Activities for Cost Recovery

EPA is setting in place a mechanism by which, under phased-in

implementation, the Agency shall recover its full annual operating

costs by the end of the fifth year. By means of the fees established in

this final rule, EPA intends to recover a portion of both direct and

indirect costs for the various activities conducted under both the RMP

and RCP programs. Direct costs include personnel benefits and salaries,

travel, equipment costs, and contractor expenses. Indirect costs are

those resources, outside of direct program costs, used to manage,

oversee, and provide counsel to program offices. These include costs

such as those incurred by EPA's management, administrative, policy, and

research staff. Indirect costs also include overhead costs, such as

utilities and rents.

In this rule, EPA sets fees to partially recover operating costs

for the RMP and RCP programs. The Agency is initially setting fees at

partial cost recovery levels in this rule in response to concerns

expressed in comments about the negative impacts that proposed full-

cost recovery fee levels would have on the participation of

organizations in the proficiency programs. However, EPA is authorized

by section 305 of the TSCA to recover its full operating costs.

Therefore, the Agency shall adjust user fee levels each year over the

next five year period to ultimately recover all of its annual costs to

operate the proficiency programs. The period of time between the

promulgation of this rule and the establishment of full cost recovery

fees should enable the radon industry to adjust gradually to the burden

of paying fees, thus maintaining sufficient radon measurement and

mitigation service capacity to meet consumer demand and, at the same

time, assuring some level of recovery of EPA program costs.

The mechanism used for setting fees for each of these programs is

to calculate their average costs, which are defined as the total cost

of the activities of the programs divided by the expected number of

participants in the program. In the proposed rule, EPA indicated an

intent to charge fees that were lower than the average full cost to EPA

for the RCP program and the classroom and field radon training courses

for the first year of fee collection. EPA no longer offers the

classroom and field radon training courses and therefore, will not

specify a fee for these training courses in this final rule. Subsequent

to publication of the proposed rule, EPA added individual proficiency

elements to the RMP Program. Because TSCA requires EPA to impose fees

on all persons applying for a proficiency rating, an annual fee for

this portion of the program is included in this final rule.

Specific activities for cost recovery for each program are

described below. A detailed description of costs and how they were

calculated is presented below in section V of this preamble, entitled

``Economic Impacts'' and in the Economic Impact Analysis of the Radon

Proficiency Program User Fee Rule, U.S. EPA/Office of Radiation and

Indoor Air, November 17, 1993.

1. National Radon Measurement Proficiency Program

The costs for this program include both direct and indirect costs,

such as salaries and equipment, and a proportion of indirect costs.

Direct costs include printing, mailing, and processing applications;

calibration, exposure of detectors and measurement analysis;

notification of results; update and maintenance of the data base; and,

preparation of the proficiency report. Indirect costs include

management and supervisory costs.

EPA's total cost for the RMP program for Fiscal Year 1992 was

estimated at $1.6 million. As of October 1991, EPA had listed

approximately 1,200 primary device applications and approximately 1,000

secondary firm applications. If the RMP fees were set at a full cost

recovery level in the first year (as considered under Option 2 of the

Economic Impact Analysis of Radon Proficiency Program User Fee Rule,

U.S. EPA/Office of Radiation and Indoor Air, November 17, 1993), the

fee for a primary device application would be about $1,825 per

application, and a fee of $250 would be assessed for each secondary

firm applying to the RMP program. The difference between the fees for

primary devices and secondary firms reflect differences in EPA's costs

to process each type of applicant through the RMP program.

2. Individual Measurement Proficiency

The costs for this component of the RMP program include both direct

and indirect costs, such as salaries, and a proportion of indirect

costs. Direct costs cover exam administration, periodic updates,

proficiency reports, and data base management. Indirect costs include

management and supervisory costs.

The total cost of the individual proficiency component of the RMP

program in Fiscal Year 1992 was estimated to be $435,000. As of October

1991, it was estimated that approximately 1,500 individuals would

participate in the individual proficiency program in FY92. The full

cost recovery fee for this program would be about $290 per individual.

3. National Radon Contractor Proficiency Program

The costs for this program include both direct and indirect costs,

such as salaries, and a proportion of indirect costs. Direct costs

cover such activities as periodic updates, exam administration,

proficiency reports, and data base management. Indirect costs include

management and supervisory costs.

The total cost for the RCP program was estimated to be $552,000 in

fiscal year 1992. Estimated participation in this program is about 700

as of October 1991. The full cost recovery fee for this program would

be about $790 per individual.

B. Fee Schedule

The Agency had to weigh a number of factors in establishing the

following fee schedule. On the one hand, EPA is committed to ensuring a

sufficient number of proficient radon measurement and mitigation

organizations and individuals are available for consumers. On the other

hand, EPA is authorized to assess fees to recover its costs associated

with operating the RMP and RCP programs.

The proposed rule specified the collection of fees sufficient to

recover all of the Agency's costs related to operating the RMP program.

For the RCP program, the Agency recognized that a fee set at a full

cost recovery level would discourage participation in this new program.

Also, a full cost recovery fee for the RCP program would be

significantly higher than the costs charged for other environmental

risk mitigation courses currently being offered in the marketplace

(e.g., NJ State inspector training courses, asbestos inspector and

remediation courses, etc.). Accordingly, EPA proposed a less-than-full

cost recovery RCP fee.

Comments received on the proposed rule indicated that the radon

testing and mitigation industry is in a period of contraction. These

comments are further substantiated by a comparison of the number of

participating organizations in the RMP program at the time of the

proposed rule (about 6,670) and those currently in the RMP program

(about 1,600). Comments also expressed concern that the proposed fees

would drive a significant number of industry members out of business.

In selecting fee levels for the final rule, EPA considered a number of

factors including the revenue to be collected, estimated program

participation rates, and the average radon firm profits. EPA then

assessed the effects different fee levels would have on participation

rates in the proficiency programs and the amount of revenue that would

be collected. In developing the final rule, the Agency analyzed five

different formulas, including the fee levels in the proposed rule, for

cost recovery ranging from 20% program cost recovery to 100% recovery.

Specific details regarding EPA's sensitivity analysis for options for

the final rule can be found in the Economic Impact Analysis of the

Radon Proficiency Program User Fee Rule, U.S. EPA/Office of Radiation

and Indoor Air, November 17, 1993.

Due to concerns raised in public comments regarding the ability of

the radon industry to bear the costs of the proposed rule, as well as

its own economic analysis, the Agency has decided to establish fees at

a level lower than that which it proposed and is sufficient to collect

30 percent of its operating costs for the RMP program in the first year

of fee collection. RMP fees, as a percentage of the average radon

firm's annual profits, range from 40% to 60% in the final rule, in

contrast to 80% to 95% in the proposed rule. EPA estimates that

participation rates at this fee level will range from 85% to 90%. In

contrast, the proposed rule would have resulted in participation rates

ranging from 50% to 75%. The Agency considers the impacts of this final

rule to be acceptable for the following reasons: (1) EPA expects that

an adequate supply of proficient radon measurement and mitigation

service providers will remain after this rule becomes effective to meet

the anticipated consumer demand with reasonably priced services, and

(2) since virtually all radon firms can be considered small, this rule

does not place an undue burden on small businesses and it does not give

an unfair advantage to large businesses.

Further, EPA is adopting the proposed fee level for the RCP

program. The Agency received no comments indicating that the proposed

fee level would decrease participation in the RCP program

significantly. Therefore, EPA also believes the proposed fee level for

the RCP program is appropriate and will not discourage participation in

this element of the proficiency program. Consistent with its authority

under TSCA, the Agency shall adjust fees for its proficiency programs

as necessary to achieve the full recovery of the cost to operate its

proficiency programs within the next five years. EPA will also consider

potential industry impacts as it adjusts to fee levels which achieve

full cost recovery.

1. Fee Amounts

Applicants to and participants in the RMP and RCP programs are

required to pay fees according to the following fee schedule:

a. RMP Program Primary Organizations

(1) In order to remain a listed participant, each primary

organization that is a listed participant in the RMP program on the

effective date of this rule shall pay an initial annual fee of $375

for each device listed in the program.

(2) Each primary organization that is not a listed participant

in the RMP program on the effective date of this rule and submits an

initial application after the effective date of this rule shall pay

an initial annual fee of $375 per device. This fee will be prorated

quarterly, based on the acceptance date of an organization's

application.

(3) Primary organizations that have or are seeking secondary

listings for their primary devices are not required to pay

additional fees applicable to secondary organizations.

b. RMP Program Secondary Organizations

(1) In order to remain a listed participant, each secondary

organization that is a listed participant in the RMP program on the

effective date of this rule shall pay an initial annual fee of $75.

(2) Each secondary organization that is not a listed participant

in the RMP program on the effective date of this rule and submits an

initial application after the effective date of this rule shall pay

an initial annual fee of $75. This fee will be prorated quarterly,

based on the acceptance date of an organization's application.

(3) Primary organizations that have or are seeking secondary

listings for methods other than those for which they are listed as a

primary, are subject to this fee.

c. Individual Proficiency Component of the RMP Program

(1) In order to remain a listed participant, each individual who

is a listed participant in the RMP individual proficiency program on

the effective date of this rule shall pay an initial annual fee of

$150.

(2) Each individual who is not a listed participant in the RMP

program on the effective date of this rule and submits an initial

application after the effective date of this rule shall pay an

initial annual fee of $150. This fee will be prorated quarterly,

based on the acceptance date of an individual's application.

(3) Individuals in the individual proficiency component of the

RMP program who fail the exam and wish to re-take the exam shall pay

an application processing charge of $50. Individuals wishing to re-

take the exam will not be reassessed the fees required under section

III.B.1.c. (1) and (2) above.

(4) Individuals who have or are seeking listing status as a RMP

primary or secondary organization are subject to the applicable fees

required in section III.B.1.a. and b. above.

d. RCP Program

(1) In order to remain a listed participant, each individual who

is a listed participant in the RCP program on the effective date of

this rule shall pay an initial annual fee of $200.

(2) Each individual who is not a listed participant in the RCP

program on the effective date of this rule and submits an initial

application after the effective date of this rule shall pay an

initial annual fee of $200. This fee will be prorated quarterly,

based on the acceptance date of an individual's application.

(3) Individuals in the RCP program who fail the exam and wish to

re-take the exam shall pay an application processing charge of $50.

Individuals wishing to re-take the exam will not be reassessed the

charge under section III.B.1.d. (1) and (2) above.

An organization or individual who is not a listed participant in

EPA's radon proficiency programs on the effective date of this rule

and/or whose proficiency program application has not yet been accepted

by EPA becomes subject to the fees described above once its application

has been accepted by EPA. Fees for such organizations or individuals

will be prorated quarterly, based on the acceptance date of the

application. To remain listed, each participant in the RMP or RCP

programs, whether individual or organization, shall submit a renewal

application and appropriate annual fee to EPA each year.

2. Exemptions

State and local governments are exempted from these fees under

section 305(e)(2) of TSCA, 15 U.S.C. 2665.

3. Determination of Fees

Participants listed in the RMP and RCP programs on the effective

date of this rule will be sent, by EPA, an annual renewal application

with appropriate fee calculation at least 30 days prior to the payment

due date. This renewal application also serves as an organization's or

individual's payment invoice. Fees will be assessed based on the

information in EPA's proficiency program data bases. Participants who

intend to pay the invoiced fee amount shall complete the renewal

application and send the appropriate payment to EPA following the

procedures in section B.3. Organizations or individuals who believe the

invoiced fee amount is incorrect or wish to amend or adjust their

listing status shall do so by indicating the appropriate corrections or

adjustments on their renewal application. Corrected renewal

applications for the RMP Program or the RCP Program shall be sent to:

Radon Proficiency Program Information Service, c/o Sanford Cohen and

Associates, Inc., 1418 I-85 Parkway, Montgomery, AL 36016. EPA will

review the corrected renewal application, adjust the payment invoice

amount (if appropriate) and issue a revised invoice. Participants shall

pay the corrected amount within 30 days of receipt of the revised

invoice.

If the appropriate fee or revised renewal application for an

individual or organization participating in the RMP or RCP program has

not been received by EPA on or before the payment due date, EPA will

send, by certified mail, notice to the individual or organization that

they will be delisted from the proficiency program unless they pay the

fee within 30 days of receipt of this second notice. If payment has not

been received by EPA within 30 days of the participant's receipt of the

second payment invoice, the organization's or individual's listing will

be removed from the proficiency program.

New or initial applicants to the RMP or RCP programs will be

assessed a fee at the time of their initial application. EPA will send

a payment invoice to the new applicant upon acceptance of its initial

application. The invoice will state that the applicant will be given 30

days to remit payment. The fee assessed will be prorated quarterly,

based on the acceptance date of the application. If the appropriate fee

has not been received by EPA by the payment due date, the application

will be returned to the submitter and the applicant will not be listed

in the proficiency program.

4. Payment Procedures

Each remittance to EPA under this rule shall be in United States

currency and shall be paid by certified check, personal check, or money

order made payable to the order of the ``U.S. Environmental Protection

Agency'' and sent to: U.S. Environmental Protection Agency,

Headquarters Accounting Operations Branch, Radon Proficiency Program

User Fees, P.O. Box 952491, St. Louis, MO 63195-2491. The fee shall be

submitted with the original copy of the EPA invoice. Collection of fees

shall begin in the fiscal year beginning October 1, 1993. Additional

specific information on how and when fees must be paid can be found in

the guidance document How to Pay Your Fees, U.S. EPA/Office of

Radiation and Indoor Air. Copies of this document can be obtained by

contacting the RIS at (205) 272-2797 or by FAX at (205) 260-9051.

5. Failing the RMP Measurement Test

Organizations that fail the initial measurement performance test or

the re-test for a particular device must re-apply to the RMP program

for that device. EPA notifies all primary participants in writing of

their measurement performance test results and listing status. Any fee

paid to EPA in the process of attaining a listing of a particular

device will not be refunded if the device fails to meet the RMP program

criteria as stated in the Radon Measurement Proficiency (RMP) Program

Handbook, EPA 520/1-91-006, February 1991. Should the organization

elect to re-apply, EPA will assess a new fee based on the information

provided in the organization's reapplication.

6. Failing the RMP Individual Proficiency and RCP Exams

Applicants to the RCP program and/or the individual proficiency

component of the RMP program may take the written examinations as often

as they wish. However, each request for a re-test must include a $50.00

processing fee. This processing fee reimburses EPA for the data-entry

of the re-test request and for scheduling a new examination date for

the applicant. As with the RMP program, EPA notifies participants in

writing of their results.

If an individual decides not to take the individual proficiency

exam or the RCP exam within the fiscal year the application and

appropriate fee were submitted, a new application must be submitted

with the appropriate fee. Fees will not be refunded in the event an

applicant fails the exam and/or chooses not to re-take the exam.

7. Implementation Guidance

EPA will make available detailed implementation guidance prior to

effective date of this rule. Copies of this document can be obtained by

contacting the RIS at (205) 272-2797 or by FAX at (205) 260-9051.

8. Adjustment of fees

EPA shall collect 100 percent of its operating costs associated

with its radon proficiency programs within five years of the effective

date of this rule. In order to do this, EPA shall adjust the initial

fees established by this rule each year over the next five years to

collect the following percentages of program costs:

------------------------------------------------------------------------

Initial Fees

-------------------------------------------------------------------------

Year 1 Year 2 Year 3 Year 4 Year 5

------------------------------------------------------------------------

30%.......... 47.5% 65% 82.5% 100%

------------------------------------------------------------------------

Assuming that the Agency's cost of running the proficiency programs

remains unchanged over the next five years and assuming that the level

of participation in the proficiency programs remains constant, the fee

schedule for the next five years would be as follows:

------------------------------------------------------------------------

Fee Fee Fee Fee

Program element year 2 year 3 year 4 year 5

------------------------------------------------------------------------

RMP program:

Primary........................... $875 $1,200 $1,500 $1,825

Secondary......................... 125 175 200 250

RMP individual proficiency: 150 200 250 300

RCP program......................... 375 525 650 800

------------------------------------------------------------------------

The actual fees for each fiscal year will be calculated based on

program costs and participation rates. New fee schedules will be

published in the Federal Register by January 1 of each year as a

technical amendment final rule to become effective 30 days or more

after publication.

EPA will use a three-step process to adjust fees annually. First,

EPA will estimate the costs of providing each of the proficiency

programs for the upcoming year. EPA will account for future additional

fixed costs (e.g., updating examinations) and increases/decreases in

variable costs due to inflation and other factors. In order to

calculate increases/decreases in cost due to inflation, EPA may use one

of the three following indices: The Federal General Schedule (GS) pay

scale, the Consumer Price Index (CPI), and/or a component of the CPI,

such as services. Second, EPA will estimate the number of participants

for each program. At a minimum, these participation rates will be based

on past and current program participation rates. Third, EPA shall

calculate the per capita costs that individuals or organizations should

pay to enable it to recover its fixed and variable costs each year for

each program. EPA shall also consider potential industry impacts as it

adjusts to levels to ultimately achieve full cost recovery over the

period of five years.

IV. Response to Comments

EPA received comments to the proposed rule covering a broad range

of subjects and concerns relating to the proficiency programs, the fees

proposed and the impact of the fees on various segments of the

industry. Comments also focused on the effects of fees on the

availability of quality radon services to consumers. The following

section summarizes the major comments received and discusses the

changes, where applicable, in the final rule in response to those

comments.

A. Industry Impacts

1. Impact of Fees on Demand for Radon Services

Most of the comments received focused on the impact of fees on the

radon industry. Comments suggested that all government-imposed fees

will likely be passed on to the consumer in the form of higher prices

for services, thus leading to a decrease in radon testing and

mitigation. These comments suggested that a decrease in the number of

tests and mitigations will undermine the Agency's desired goal of

reducing radon-related health risks.

Response: The Agency recognizes that all or some of the costs to

firms of radon user fees may be passed on to consumers in the form of

higher prices for radon services. However, since firms would spread out

the costs of compliance across the total number of measurements, any

potential increases in service costs are likely to be only a small

portion of the total costs of the service. Further, as a result of

comments received on the proposed rule and EPA's analysis of the

economic impacts of the fees, this final rule establishes fees for the

RMP program that are significantly lower than those in the proposed

rule. EPA does not believe that the imposition of the user fees in this

final rule will have a significant deleterious effect on the number of

radon tests or mitigations conducted.

2. Impact of Fees on Participation

Several comments indicated that imposing fees will reduce

participation in EPA's voluntary proficiency programs. Some comments

suggested that the proposed fee structure would lead to a greater

reduction in participation than predicted in the economic analysis

prepared for the proposed rule. Several comments suggested that

organizations will only participate in the RMP program with one device

to minimize their fees, although they will continue to provide

measurement services with a number of devices. Comments further

suggested that firms might continue to provide radon services without

the benefit of an EPA listing. Still other comments suggested that the

proposed fees would lead them to discontinue their radon business

altogether.

Response: EPA is sensitive to the concern that user fees could

reduce participation in its proficiency programs. The Agency conducted

additional economic analyses in the development of this final rule to

address this concern. As a result of its analysis, EPA has selected a

fee level substantially lower than the proposed rule so as not to

discourage participation in the program. Drop off rates for

participation in the RMP program are predicted to range between 10 and

15% for the final rule in contrast to the drop off rates with the

proposed rule of between 25 and 50%.

While the Agency cannot directly address the potential for an

organization to misrepresent the number or types of RMP-listed devices

it offers, EPA will take a strong role in working with the States to

communicate to consumers the importance of verifying an organization's

listing status before using its services. EPA will certainly take

action to delist an organization if the Agency confirms a case of

misrepresentation. State certification programs provide consumers

further assurance that the services they use are RMP listed or have met

equivalent standards as outlined in the Strategy on Federal/State

Cooperation for Radon Certification Program Development, EPA 22A-5000,

January 1992.

3. Device Bias

Comments suggested that the fees will drive firms away from the

electret measurement method and toward other less accurate devices.

Many organizations provide primary services with different types of

electret devices (e.g., short-term, long-term, etc.). These comments

expressed concern that the device-specific fees included in the

proposed rule would provide an incentive for them to switch to

participation with a single charcoal canister device in order to reduce

their fee.

Response: The Agency evaluates participants in the RMP program with

each device type separately to ensure that they are capable of making

accurate measurements with that specific device. EPA's costs to process

a primary device through the RMP program are similar, regardless of

whether electret or charcoal canister devices are used. Furthermore,

the reduced fees being promulgated in this final rule will probably

minimize any potential incentives to switch devices as a result of the

imposition of fees. The Agency is currently reviewing the way it

evaluates electret and other devices that are used to provide

measurement services to the home. If this review yields changes in the

RMP program and thus, in its costs, EPA will reconsider its fee

structure.

With regard to variations in device accuracy, all devices that have

met the requirements of EPA's RMP program are capable of accurately

measuring radon and/or its decay products. Both charcoal canister and

electret measurement devices have been used successfully in the RMP

program on numerous occasions.

4. Private Sector Certification

Some comments suggested that the imposition of fees on the radon

industry will provide an incentive for private trade associations to

develop their own certification and accreditation programs with

potentially lower standards than EPA's RMP and RCP programs. These

comments further suggest that organizations will be driven away from

EPA's proficiency programs in favor of private sector certification or

accreditation programs. This approach was supported by comments

identifying other industries that successfully self-certify and test

themselves.

Response: Private sector certification programs do not currently

exist within the radon industry. There is reason to believe that even

in States where an EPA listing is not required, firms will gain a

benefit from participating in the EPA programs due to the public

service messages and guidance documents which suggest that consumers

look for the EPA-listed firm or individual when deciding on radon

measurements or mitigations. However, if the private sector were to

develop a self-certification program, the Agency would support industry

efforts to establish requirements that supplement and re-enforce

existing Federal and State quality assurance programs.

B. Fairness Issues

1. State and Local Government Exemption for Fees

Comments suggested that government and private sectors should pay

equal fees. The comments suggested that exempted government agencies

will use the subsidized proficiency program participation to take

business away from the private sector.

Response: Section 305(e)(2) of the IRAA specifically exempts State

and local government agencies from paying fees to participate in the

proficiency programs. There are currently 17 listed State or local

government entities in the RMP program with 34 devices. This number

represents approximately 4% of all listed participants in the RMP.

There are currently 39 individuals who are State or local government

agency employees in the RCP. This number represents about 4.5% of all

listed participants in the RCP. There is a direct benefit of having

these individuals and governments in the EPA proficiency programs in

terms of quality assurance. The Agency does not believe that this level

of participation by State or local governments is a threat to the

industry or would pose a burden to the other participants in the

program.

2. Small Business Impacts

A number of comments suggested that EPA's fees would impose a

significant burden on small businesses and stifle competition between

smaller and larger firms within the radon industry. They went on to

suggest that the Agency should consider a lower fee for smaller

businesses or fees based on the volume of radon tests conducted

annually.

Response: EPA acknowledges that a significant number of firms

affected by this rule can be considered small businesses under most

definitions used by the Small Business Administration. About 90% of

radon service providers have fewer than 10 employees. The Agency is

concerned about the effects that this rule might have on small

businesses, particularly in the current economic climate. This concern

led EPA to establish its user fees at a level that will only recover

30% of its operating costs in the first year. Based on its economic

analysis, EPA believes that the fee schedule promulgated in this final

rule will not place an undue burden on small businesses, or provide an

unfair advantage to large businesses. The Agency's phased approach to

recovering its operating costs of the proficiency programs will allow

small businesses to adjust to incremental increases in the fees, rather

than having to absorb a fee set at a level sufficient to recover the

Agency's full costs. In addition, EPA is continually looking for ways

to reduce its operating costs.

3. Device-Based Fees

A number of comments suggested that the Agency establish fees on

the basis of measurement methods, rather than measurement devices. For

example, several comments recommended that program participants pay

only one fee for testing a variety of devices within the electret

method categories.

Response: The intent of this rule is to recover Agency costs

associated with operating its proficiency programs. The RMP program

requires testing each specific type of measurement device, within

particular method categories. Conducting these tests is the single

largest component of the RMP program's operating costs. For this

reason, the Agency has decided to collect fees from organizations on

the basis of the number of specific types of devices tested and not on

the number of measurement methods used.

C. Economic Analysis

Comments also expressed concerns about the Agency's analysis of the

economic impacts of its proposed rule. Specific comments focused on the

methodologies used to determine program costs and industry impacts;

equity issues within the industry; and, the long term effects of the

Agency's fees on the radon industry.

Response: The Agency has considered these comments in preparing its

new economic analysis of the final rule. For further explanation on the

development of EPA's economic analysis for this final rule, see section

V, ``Economic Impacts,'' and Economic Impact Analysis of the Radon

Proficiency Program User Fee Rule, U.S. EPA/Office of Radiation and

Indoor Air, November 17, 1993. Specific comments are addressed below.

1. Inadequate Sample Size

Several comments suggested that the survey used to determine the

impacts of the fee on the radon industry was too small to adequately

characterize potential effects of the fee.

Response: At the time of the survey used in the proposed rule, it

was estimated that there would be approximately 800 companies

participating in the RMP program with about 1,200 primary device

applications and an estimated 6,000 secondary firms in the RMP program

in the first year of fee collection. As of October 1991, there are

approximately 600 primary participants with about 1,200 primary devices

and about 1,000 secondary firms participating in the EPA RMP program.

Of those organizations and individuals surveyed in 1989, approximately

63% are still participating in the EPA proficiency programs. The Agency

believes that this survey data is still relevant and can be applied to

the industry as it is today. Since the time of the proposed rule, the

Agency has developed several data bases from elements of the RMP

program application's supplemental data and from the RCP program. These

data were used to validate the assumptions of the proposed rule and to

develop models of ``typical'' radon firms used to further analyze the

impacts of various fee levels on participation and program cost

recovery. EPA believes that the sample size used to develop the final

rule was adequate to assess the potential economic impacts of the

various options considered.

2. Explain All Assumptions

Several comments suggested that the Agency break out the category

``Other Activities'' in the economic analysis that comprised about 70%

of the Agency program costs.

Response: The economic analysis for the proposed rule has been

extensively reviewed and updated to reflect the program costs

associated with EPA's proficiency programs as they are currently

operating. All of the pertinent program activities and analytical

assumptions have been provided in the appendices B and C of the

Economic Impact Analysis of the radon Proficiency Program User Fee

Rule, U.S. EPA/Office of Radiation and Indoor Air, November 17, 1993.

3. Consider All Inputs of Costs to Industry

Several comments suggested that the Agency did not consider other

costs of doing business such as travel to test chambers, lost business

due to training, and travel to training. Other comments indicated that

the economic analysis for the proposed rule did not consider the issue

of duplication of fees and multiple State certifications. Comments also

suggested that the RMP program fees in the proposed rule were not

comparable to other State certification fees. These comments suggested

that the Agency consider certification costs for termite inspectors,

home inspectors, etc.

Response: EPA did not do a detailed analysis of other compliance

costs faced by firms in the radon industry because of the wide

variability of those costs and the difficulties in fully documenting

these costs. The Agency does recognize that its fees are not the only

compliance costs a radon firm may incur. This was a key consideration

in EPA's decision to promulgate fees lower that those in the proposed

rule and to pursue a staged approach to recovering its operating costs.

Appendix A, ``State Certification Programs,'' of the Economic Impact

Analysis for the Radon Proficiency Program User Fee Rule, U.S. EPA/

Office of Radiation and Indoor Air, November 17, 1993 provides a list

of States that currently require the payment of radon user fees. Fee

levels in this final rule are comparable to those charged by States.

4. Economic Analysis Should Reflect Current Program and Costs

Several comments suggested that the assumptions used for the

economic analysis were based on a program that was significantly

changed by the time the proposed rule was published. These comments

indicated that the analysis should reflect the current program costs

and participation rates. Comments suggested that this will

significantly change the estimated amount of drop out in participation.

Response: The Agency has updated the fees in this final rule to

reflect the current structure of the radon proficiency programs, as

well as the current participation rates and program costs. These

programmatic updates are outlined in the economic analysis.

5. Analysis Should Reflect More Than One Year of Costs

Comments suggested that the first year fees do not reflect the real

costs that could be imposed on participants in the second and

subsequent years. A comment offered the scenario that after the first

year, participant fees would have to more than triple to support full

cost recovery in the face of declining participation.

Response: While the Agency does anticipate that some firms will not

participate in EPA's voluntary proficiency programs as a result of the

imposition of user fees, this drop off will also reduce the costs the

Agency is seeking to recover. By adopting a staged approach to full

cost recovery, EPA believes that the industry will have sufficient time

to adjust to the user fees and the impacts in future years are expected

to be minimal. Furthermore, the Agency is always evaluating ways in

which it can reduce the cost of operating its proficiency programs.

D. Non-Fee Related Comments

The Agency received a number of comments relative to the overall

operation of EPA's proficiency programs. These comments were generally

unrelated to the issue of fees. Many of the comments suggested

improvements to the programs' structure and operation. Other comments

addressed the relationship between Federal and State quality assurance

programs and the adequacy of EPA's public information activities as

they affect consumer demand for radon testing and mitigation. The

Agency will consider these comments as it continues to make

improvements in its proficiency programs and other radon-related

programs.

V. Economic impacts

A. Introduction

EPA analyzed the estimated costs of each of the proficiency

programs, estimates of participation, and the effects of fees on

program participation. In addition, the Agency considered comments

received on its ``Economic Analysis'' of the proposed rule. EPA's final

analysis is contained in Economic Impact Analysis of the Radon

Proficiency Program User Fee Rule, U.S. EPA/Office of Radiation and

Indoor Air, November 17, 1993.

B. Methodology

Three methodologies were employed for evaluating the economic

impacts of the imposition of fees for radon proficiency programs. The

first methodology formed the basis of the participation drop off

numbers in the proposed rule. This methodology used data from selected

interviews with industry representatives to help EPA predict the impact

of several levels of fees, and estimates the potential reduction in

participation as the fee level increased. The Agency has updated this

analysis to account for current estimates of program participation and

operating costs. A second methodology involved the design of model

firms to evaluate the effects of differing fee levels on estimated

radon revenues and profits. A third methodology involved examining fees

charges for similar programs, both in the public and private sector.

The first and second methodologies were used in setting the fee

schedule for participation in the RMP program. The third methodology

was used to develop fees for the RCP program and for the individual

proficiency component of the RMP program.

C. Impacts

1. Total Costs

The total annual cost of operating EPA's radon proficiency programs

was estimated at $2.6 million. This number is based on budget estimates

for operating the proficiency programs during FY92. The proposed rule

estimated the total program costs at $3.4 million annually. The

difference of about $800,000 results from EPA's adoption of a

continuous program and privatization of the training courses that were

part of the proposed rule, as well as the decline in the number of

organizations applying to the proficiency programs. The Agency will

continue to work toward reducing its costs of operating the proficiency

programs.

2. Radon Measurement Proficiency (RMP) Program

EPA'S analysis indicates that its final fee structure promulgated

in this rule will have minimal impacts on the radon industry and the

general public. According to the demand/response curve developed in the

``Economic Analysis,'' drop off in participation is estimated to be

about 10% of primary measurement devices; in contrast, the proposed

rule would have resulted in drop off of about 25% for primary devices.

Secondary firm drop off is expected to be approximately 15%; the

proposed rule would have resulted in a drop off rate of about 50%. Any

level of fees is likely to have resulted in some participation drop

off. The Agency was sensitive, however, to the concerns raised by

comments that the proposed rule fees would have led to a dramatic

reduction in the number of organizations participating in the RMP

program. These comments were further substantiated by EPA's model firm

analysis which indicated that the proposed fees would have represented

a 80-95% of the average firm's radon profits. As a result of the lower

fees in the final rule, EPA believes that the drop off will be small

enough to maintain the availability of listed measurement service

providers throughout the country.

The total estimated cost of the RMP program is about $1.6 million

and the fees recovered from the RMP program are expected to equal about

30% of this cost during the first year of fee collection, or about

$470,000.

3. Individual Measurement Proficiency and the RMP Exam

EPA is publishing an annual fee of $150 for participation in the

individual proficiency component of the RMP program. The estimated

Agency cost of operating the individual proficiency component of the

RMP program is $435,000. The Agency is establishing a fee that will

maintain participation in this program and achieve the Agency's goal of

measuring the proficiency of individuals who provide ``in-house'' radon

measurement services. EPA expects to collect approximately $225,000 the

first year of fee collection. The fee was set at a level expected to

maintain a high level of existing participants. The fee also reflects a

fee that is comparable to existing environmental-related proficiency

testing programs.

4. Radon Contractor Proficiency (RCP) Program

As in the case of the individual measurement proficiency component

of the RMP, EPA is promulgating a fee that it believes will maintain

participation in the RCP. EPA has chosen to finalize the proposed

annual fee of $200 based on the analysis conducted for the proposed

rule. Comments received did not indicate that this fee would result in

significant drop off of the RCP program participants. The $200 per RCP

program applicant fee is consistent with fees established by State

radon mitigation certification programs and other comparable federal

programs. EPA expects to collect $140,000 in the first year of the

estimated program costs of $550,000.

VI. Rulemaking Record

EPA established a record for this rulemaking (docket control number

A-90-09). The record for this rulemaking is available to the public in

the Clean Air Act Docket, located in M1500, first floor Waterside Mall,

U.S. Environmental Protection Agency, 401 M St., SW, Mail Stop LE-131,

Washington, DC, 20460, from 8:30 a.m. to 12 p.m. and 1:30 p.m. to 3:30

p.m., Monday through Friday, excluding legal holidays.

The record includes information considered by EPA in developing

this rule. The record contains the following categories of information:

(1) Federal Register notices; (2) Support Documents; and, (3) Public

Comments.

VII. Other Regulatory Requirements

A. Executive Order 12291

This rule was submitted to the Office of Management and Budget

(OMB) for review under the provisions covered under Executive Order

(E.O.) 12291, which required the Agency to judge whether this

regulation is ``major'' and was therefore subject to the requirement to

conduct a regulatory impact analysis. This rule was not considered a

``major'' rule as that term is defined in section 1(b) of E.O. 12291

because the annual effect of the rule on the economy will be less than

$100 million; this rule is not expected to cause significant increases

in costs or prices for significant sectors of the economy or geographic

region; and because the programs are voluntary in nature, they are not

expected to result in significant adverse effects on competition,

investment, productivity, or innovation or on the ability of United

States enterprises to compete with foreign enterprises in domestic or

foreign markets.

The same conclusion reached under E.O. 12291 would also apply to

the provisions of E.O. 12866. Also, under the provisions of E.O. 12866,

this rule is not considered as ``significant,'' but because this rule

is revenue generating it was submitted to OMB for review. This rule was

cleared by OMB on November 17, 1993.

B. Regulatory Flexibility Act

This rule has been reviewed under the Regulatory Flexibility Act of

1980 (5 U.S.C. 60 et seq.). EPA has determined that a significant

number of small businesses are affected by this regulation. Under the

proposed rule, EPA defined small businesses as those with less than 10

employees. This definition was reviewed and approved by the Small

Business Administration. Approximately 10% of the primary device

applicants and 15% of the secondary firms are estimated to drop off of

the RMP program as a result of the imposition of fees. This drop off

from the program is not considered significant because EPA has

determined that if the estimated 10-15% drop off rate does occur, an

adequate number of proficient radon measurement firms will be available

to the public. In addition, since virtually all radon firms can be

considered small, this rule does not place an undue burden on small

businesses nor does it give an unfair advantage to large businesses.

Estimates of drop off have not been quantified for the RCP program

or the individual proficiency component of the RMP program. The Agency

believes, however, that its fees will not result in a substantial

adverse impact because the fees were established at a level designed to

maintain participation in the program. Further, EPA received no

comments that indicated that fees of this magnitude would lead to a

significant decline in participation.

C. Paperwork Reduction Act

The information associated with the Radon Proficiency Programs will

be submitted for approval to the Office of Management and Budget (OMB)

under the Paperwork Reduction Act of 1980, 44 U.S.C. 3501 et seq. A

separate Federal Register notice will be published requesting comments

on the information collection requirements. The Agency will respond to

all OMB or public comments prior to receiving approval for these

information requirements. A Federal Register notice will be published

announcing approval of these information requirements, the OMB control

number and the expiration date.

List of Subjects

40 CFR Part 195

Environmental protection, Radon, Proficiency programs, User fees.

40 CFR Part 700

Environmental protection, Radon, Proficiency programs, User fees.

Dated: March 8, 1994.

Carol M. Browner,

Administrator.

Therefore, 40 CFR chapter I is amended as follows.

1. Subchapter F, by adding a new part 195 to read as follows:

PART 195--RADON PROFICIENCY PROGRAMS

Subpart A--General Provisions

Sec. 195.1 Purpose and applicability.

Sec. 195.2 Definitions.

Subpart B--Fees

Sec. 195.20 Fee payments.

Sec. 195.30 Failure to remit fee.

Authority: 15 U.S.C. 2665.

Subpart A--General Provisions

Sec. 195.1 Purpose and applicability.

(a) Purpose. The purpose of this part is to establish and collect

the fees from applicants and participants required by section 305 of

the Toxic Substances Control Act, U.S.C. 2665 to defray the cost to EPA

for operating the following programs: The National Radon Measurement

Proficiency (RMP) Program, the individual proficiency component of the

RMP Program, and the National Radon Contractor Proficiency (RCP)

Program.

(b) Applicability. This part applies to all applicants and

participants in the following EPA programs: The National Radon

Measurement Proficiency Program, the individual proficiency component

of the RMP Program, and the National Radon Contractor Proficiency

Program.

Sec. 195.2 Definitions.

Definitions in 15 U.S.C. 2602 and 2662 apply to this part unless

otherwise specified in this section. In addition, the following

definitions apply:

Acceptance date means the date on which EPA enters the application

into the data system.

Accepted application refers to an application that has been entered

into the data system.

Applicant means an individual or organization that submits an

application to the RMP program, including the individual proficiency

component of the RMP program, or the RCP program. An applicant to the

RMP program must submit a separate application for each location from

which it provides radon measurement services. After the application is

accepted by EPA, the applicant becomes a ``participant'' in the

proficiency programs.

Application means the documents submitted to EPA by applicants to

the RMP and RCP programs which request participation in a program.

Device/measurement device means a unit, component, or system

designed to measure radon gas or radon decay products.

EPA means the U.S. Environmental Protection Agency.

Individual proficiency/RMP exam means the exam which evaluates

individuals who provide radon measurement services in a residential

environment.

Listed participant in an individual or organization who has met all

the requirements for listing in the RMP and RCP programs.

Measurement method is a means of measuring radon gas or radon decay

products encompassing similar measurement devices, sampling techniques,

or analysis procedures.

Organization is any individual, sole proprietorship, partnership,

business, company, corporation, college or university, government

agency (includes Federal, State and local government entities),

laboratory, or institution.

Participant is an individual or organization engaged in radon

measurement and/or mitigation activities or in offering radon

measurement and/or mitigation services to consumers and others, whose

proficiency program application EPA has accepted.

Primary measurement services (primary) refers to radon measurement

services using a specific device which services include the capability

to read and/or analyze the results generated from the device.

Radon Contractor Proficiency (RCP) program refers to EPA's program

to evaluate radon mitigation contractors and the contractor's ability

to communicate information to the public.

Radon Measurement Proficiency (RMP) program refers to EPA's program

to evaluate organizations and individuals offering measurement services

to consumers. It provides a means for organizations to demonstrate

their proficiency in measuring radon and its decay products in indoor

air.

Radon mitigation contractor means a contractor who provides radon

mitigation services to the public.

Secondary radon measurement services (secondary) refers to radon

measurement services that do not include the reading or the ability to

analyze the results of the measurement devices used. These services may

include placement and retrieval of devices, reporting results, and/or

consultation with consumers.

Subpart B--Fees

Sec. 195.20 Fee payments.

(a) Fee amounts. Applicants to and participants in the RMP and RCP

programs shall pay fees according to the following fee schedule:

(1) RMP program primary organizations.

(i) In order to remain a listed participant, each primary

organization that is a listed participant in the RMP program on

April 18, 1994 shall pay an initial annual fee of $375 for each

device listed in the program.

(ii) Each primary organization that is not a listed participant

in the RMP program on April 18, 1994 and submits an initial

application after April 18, 1994 shall pay an initial annual fee of

$375 per device. This fee will be prorated quarterly, based on the

acceptance date of an organization's application.

(iii) Primary organizations that have or are seeking secondary

listings for their primary devices are not required to pay

additional fees applicable to secondary organizations.

(2) RMP program secondary organizations.

(i) In order to remain a listed participant, each secondary

organization that is a listed participant in the RMP program on

April 18, 1994 shall pay an initial annual fee of $75.

(ii) Each secondary organization that is not a listed

participant in the RMP program on the effective date of this section

and submits an initial application after the effective date of this

section shall pay an initial annual fee of $75. This fee will be

prorated quarterly, based on the acceptance date of an

organization's application.

(iii) Primary organizations that have or are seeking secondary

listings for methods other than those for which they are listed as a

primary, are subject to this fee.

(3) Individual proficiency component of the RMP program.

(i) In order to remain a listed participant, each individual who

is a listed participant in the RMP individual proficiency program on

the effective date of this section shall pay an initial annual fee

of $150.

(ii) Each individual who is not a listed participant in the RMP

program on the effective date of this section and submits an initial

application after the effective date of this section shall pay an

initial annual fee of $150. This fee will be prorated quarterly,

based on the acceptance date of an individual's application.

(iii) Individuals in the individual proficiency component of the

RMP program who fail the exam and wish to re-take the exam shall pay

an application processing charge of $50. Individuals wishing to re-

take the exam will not be reassessed the fees required under

paragraphs (a)(3) (i) and (ii) of this section.

(iv) Individuals who have or are seeking listing status as an

RMP primary or secondary organization are subject to the applicable

fees required in paragraphs (a) (1) and (2) of this section.

(4)(i) RCP Program.

(A) In order to remain a listed participant, each individual who

is a listed participant in the RCP program on the effective date of

this section shall pay an initial annual fee of $200.

(B) Each individual who is not a listed participant in the RCP

program on the effective date of this section and submits an initial

application after the effective date of this section shall pay an

initial annual fee of $200. This fee will be prorated quarterly,

based on the acceptance date of an individual's application.

(C) Individuals in the RCP program who fail the exam and wish to

re-take the exam shall pay an application processing charge of $50.

Individuals wishing to re-take the exam will not be reassessed the

charge under paragraphs (a)(4)(i) (A) and (B) of this section.

(ii) An organization or individual who is not a listed participant

in EPA's radon proficiency programs on the effective date of this

section and/or whose proficiency program application has not yet been

accepted by EPA becomes subject to the fees described above once its

application has been accepted by EPA. Fees for such organizations or

individuals will be prorated quarterly, based on the acceptance date of

the application. To remain listed, each participant in the RMP or RCP

programs, whether individual or organization, shall submit a renewal

application and appropriate annual fee to EPA each year.

(b) Exemptions. State and local governments are exempted from these

fees under section 305(e)(2) of TSCA, 15 U.S.C. 2665.

(c) Determination of fees. (1) Participants listed in the RMP and

RCP programs on the effective date of this section will be sent, by

EPA, an annual renewal application with appropriate fee calculation at

least 30 days prior to the payment due date. This renewal application

also serves as an organization's or individual's payment invoice. Fees

will be assessed based on the information in EPA's proficiency program

data bases. Participants who intend to pay the invoiced fee amount

shall complete the renewal application and send the appropriate payment

to EPA following the procedures in Sec. 195.20(d). Organizations or

individuals who believe the invoiced fee amount is incorrect or wish to

amend or adjust their listing status shall do so by indicating the

appropriate corrections or adjustments on their renewal application.

Corrected renewal applications for the RMP Program or the RCP Program

shall be sent to: Radon Proficiency Program Information Service, c/o

Sanford Cohen and Associates, Inc., 1418 I-85 Parkway, Montgomery, AL,

36016. EPA will review the corrected renewal application, adjust the

payment invoice amount (if appropriate) and issue a revised invoice.

Participants shall pay the corrected amount within 30 days of receipt

of the revised invoice.

(2) If the appropriate fee or revised renewal application for an

individual or organization participating in the RMP or RCP program has

not been received by EPA on or before the payment due date, EPA will

send, by certified mail, notice to the individual or organization that

they will be delisted from the proficiency program unless they pay the

fee within 30 days of receipt of this second notice. If payment has not

been received by EPA within 30 days of the participant's receipt of the

second payment invoice, the organization's or individual's listing will

be removed from the proficiency program.

(3) New or initial applicants to the RMP or RCP programs will be

assessed a fee at the time of their initial application. EPA will send

a payment invoice to the new applicant upon acceptance of its initial

application. The invoice will state that the applicant will be given 30

days to remit payment. The fee assessed will be prorated quarterly,

based on the acceptance date of the application. If the appropriate fee

has not been received by EPA by the payment due date, the application

will be returned to the submitter and the applicant will not be listed

in the proficiency program.

(d) Payment procedures. Each remittance to EPA under this rule

shall be in United States currency and shall be paid by certified

check, personal check, or money order made payable to the order of the

``U.S. Environmental Protection Agency'' and sent to: U.S.

Environmental Protection Agency, Headquarters Accounting Operations

Branch, Radon Proficiency Program User Fees, P.O. Box 952491, St.

Louis, MO 63195-2491. The fee shall be submitted with the original copy

of the EPA invoice. Collection of fees shall begin in the fiscal year

beginning October 1, 1993. Additional specific information on how and

when fees must be paid can be found in the guidance document How to Pay

Your Fees, U.S. EPA/Office of Radiation and Indoor Air. Copies of this

document can be obtained by contacting the RIS at (205) 272-2797 or by

FAX at (205) 260-9051.

(e) Adjustment of fees. (1) EPA shall collect 100 percent of its

operating costs associated with its radon proficiency programs within

five years of the effective date of this section. In order to do this,

EPA shall adjust the initial fees established by this subpart each year

over the next five years to collect the following percentages of

program costs:

------------------------------------------------------------------------

Initial fees

-------------------------------------------------------------------------

Year 1 Year 2 Year 3 Year 4 Year 5

------------------------------------------------------------------------

30%.......... 47.5% 65% 82.5% 100%

------------------------------------------------------------------------

The actual fees for each fiscal year will be calculated based on

program costs and participation rates. New fee schedules will be

published in the Federal Register by January 1 of each year as a

technical amendment final rule to this part to become effective 30 days

or more after publication.

(2) EPA will use a three-step process to adjust fees annually.

First, EPA will estimate the costs of providing each of the proficiency

programs for the upcoming year. EPA will account for future additional

fixed costs (e.g., updating examinations) and increases/decreases in

variable costs due to inflation and other factors. In order to

calculate increases/decreases in costs due to inflation, EPA may use

one of the three following indices: the Federal General Schedule (GS)

pay scale, the Consumer Price Index (CPI), and/or a component of the

CPI, such as services. Second, EPA will estimate the number of

participants for each program. At a minimum, these participation rates

will be based on past and current program participation rates. Third,

EPA shall calculate the per capita costs that individuals or

organizations should pay to enable it to recover its fixed and variable

costs each year for each program. EPA shall also consider potential

industry impacts as it adjusts to levels to ultimately achieve full

cost recovery over the period of five years.

Sec. 195.30 Failure to remit fee.

EPA will not process an application or continue a participant's

listing in the National Radon Measurement Proficiency program,

individual proficiency component of the RMP program, or the National

Radon Contractor Proficiency program until the appropriate remittance

provided in Sec. 195.20(a) has been received by EPA. Failure by a

currently EPA-listed organization or individual to remit the required

fees in a timely manner will result in the loss of that organization's

or individual's listing status as specified in Sec. 195.20(c).

PART 700--[AMENDED]

2. In subchapter R, by amending part 700 as follows:

a. By revising the authority citation for part 700 to read as

follows:

Authority: 15 U.S.C. 2625 and 2665.

b. By adding Sec. 700.41 to read as follows:

Sec. 700.41 Radon user fees.

User fees relating to radon proficiency programs authorized under

the Toxic Substances Control Act appear at 40 CFR part 195.

[FR Doc. 94-6156 Filed 3-17-94; 8:45 am]

BILLING CODE 6560-50-P