Fee for Services To Support FEMA's Offsite Radiological Emergency Preparedness Program

SUMMARY: This rule establishes the policies and administrative basis

for FEMA to assess fees from the Nuclear Regulatory Commission's (NRC)

licensees to recover the full amount of the appropriated funds

obligated by FEMA to provide services for offsite radiological

emergency planning and preparedness for FY (FY) 1995.

EFFECTIVE DATE: This rule is effective March 24, 1995.

FOR FURTHER INFORMATION CONTACT: Anne Marie T. SuPrise, Chief, State

and Local Regulatory Evaluation and Assessment Branch, Exercises

Division, Preparedness, Training, and Exercises Directorate, Federal

Emergency Management Agency, 500 C Street SW., Washington, DC 20472,

(202) 646-4065.

SUPPLEMENTARY INFORMATION: On March 6, 1991, FEMA published in the

Federal Register (56 FR 9452-9459) a final rule, 44 CFR part 353, that

established a structure for assessing and collecting user fees from NRC

licensees. Under 44 CFR part 353, Radiological Emergency Preparedness

(REP) services provided by FEMA personnel and FEMA contractors were

reimbursable only if these services were site-specific in nature and

directly contributed to the fulfillment of emergency preparedness

requirements needed for licensing by the NRC under the Atomic Energy

Act of 1954, as amended. Although FEMA is publishing a new approach for

the assessment and collection of fees from licensees for FY 1995, part

353 remains in effect and will apply in any subsequent fiscal year for

which FEMA is not authorized to collect user fees for generic services.

Public Law 102-389, October 6, 1992, 106 Stat. 1571-1619, expanded

reimbursable REP Program activities by authorizing FEMA to charge

licensees of commercial nuclear power plants fees to recover the full

amount of the funds anticipated to be obligated for FEMA's REP Program

for FY 1993. On July 1, 1993, FEMA published in the Federal Register

(58 FR 35770-35775) an interim rule, 44 CFR part 354, to establish and

set forth the policies and administrative basis for assessing and

collecting these fees. FEMA reserved the option of reissuing or

amending part 354 for other fiscal years provided that appropriate

authority was enacted. Public Law 103-124, September 23, 1993, 107

Stat. 1297, directed FEMA to continue assessing and collecting fees to

recover the full amount of the funds anticipated to be obligated for

FEMA's REP Program for FY 1994. In addition, the Administration

proposed to assess such fees for subsequent fiscal years.

Using the methodology established by the interim rule, 44 CFR part

354, the final hourly user fee rate for FEMA personnel during FY 1993

was calculated at $122.88. On December 13, 1993, a notice to this

effect was published in the Federal Register (58 FR 65274). The notice

also explained that FEMA would not publish a final rule at that time,

pending a reconsideration of the methodology used for FY 1993, taking

into consideration the comments received on interim rule 44 CFR part

354. The methodology established by the interim rule 44 CFR part 354

was continued in effect for FY 1994 by notice in the Federal Register

(59 FR 26350) published May 19, 1994. Using the methodology established

by the interim rule, the final hourly user fee rate for FEMA personnel

during FY 1994 was calculated at $120.79. On November 28, 1994, a

notice to this effect was published in the Federal Register (59 FR

60792-60793).

On July 27, 1994, FEMA published a proposed rule, 44 CFR part 354,

in the Federal Register (59 FR 38306). This proposed rule, predicated

upon Congress passing the authorizing legislation, would establish fees

for FY 1995 assessed at a flat rate based on fiscal year budgeted funds

for REP Program services performed by FEMA personnel and FEMA

contractors whether or not these services directly support NRC

licensing requirements. Public comments on this proposed rule were

solicited.

Under FEMA's appropriation for FY 1995, Public Law 103-327,

September 28, 1994, 108 Stat 2323-2325, the Congress authorized FEMA to

assess and collect fees from Nuclear Regulatory Commission (NRC)

licensees to recover approximately, but not less than, 100 per centum

of the amounts anticipated by FEMA to be obligated for its Radiological

Emergency Preparedness (REP) Program. This appropriations act further

required the Director of FEMA to promulgate, through rulemaking, a fair

and equitable methodology for the assessment and collection of fees

applicable to persons subject to FEMA's radiological emergency

preparedness regulations. Public Law 103-327 grants authority for these

user fees to be assessed and collected for fiscal year 1995 services

only. Although the final rule 44 CFR part 354 is restricted to FY 1995,

FEMA reserves the option of reissuing or amending part 354 for other

fiscal years provided that appropriate authority is enacted.

Under final rule 44 CFR part 354, fiscal year budgeted funds for

REP Program services performed by FEMA personnel and FEMA contractors

will be recovered whether or not these services directly support NRC

licensing requirements. Fees for FY 1995 will be assessed using a

historically-based methodology in which two components, a site-

specific, biennial exercise-related component and a flat fee component,

are calculated for each site. Final rule 44 CFR part 354 specifies this

historically-based approach to the methodology in lieu of the flat fee

approach described in the proposed rule 44 CFR part 354 published in

the Federal Register on July 27, 1994, based upon the numerous public

comments received in response to the proposed flat fee methodology and

supported by the results of a comparison of different user fee

methodologies using actual data for FYs 1993 and 1994.

The historically-based methodology contains elements of the flat

fee methodology and of the Nuclear Management and Resources Council

(NUMARC), now Nuclear Energy Institute (NEI), methodology, which was

described in the proposed rule 44 CFR part 354. The historically-based

methodology responds to commenters who objected to the flat fee's lack

of site-specific considerations and accountability by factoring in

site-specific information relating to the majority of site-specific

activities, i.e, plume pathway emergency planning zone (EPZ) biennial

REP exercises. At the same time, the historically-based methodology

preserves many of the benefits of a flat fee methodology, specifically:

(1) The ability to provide each licensee with a bill early in the

fiscal year, thus facilitating the licensee's planning and budgeting

process by greatly increasing the predictability of the licensee's

bill; (2) the ability of States and licensees to request needed

technical assistance; (3) the earlier deposit of funds in the U.S.

Treasury, thus benefiting the U.S. taxpayer; and (4) a reduction of the

FEMA resources required to track administrative costs, thus making the

accounting and billing process more efficient and cost-effective for

the Government and freeing up scarce [[Page 15629]] FEMA resources for

other REP Program activities. In addition, the historically-based

methodology provides a compromise approach that ensures fairness and

equitability in the billing.

Under section 354.4, Assessment of Fees, the determination of costs

is divided into three categories: site-specific, biennial exercise-

related FEMA personnel costs; site-specific, biennial exercise-related

FEMA contractor costs; and remaining costs, i.e., the flat fee

component.

FEMA's services primarily are provided in support of a Memorandum

of Understanding (MOU) between the NRC and FEMA published on September

14, 1993 (58 FR 47996), and regulations issued by both FEMA (44 CFR

parts 350, 351, and 352) and the NRC (10 CFR parts 50 and 52).

Radiological emergency response plans and exercises are evaluated

using joint FEMA-NRC criteria, NUREG-0654/FEMA-REP-1, Revision 1 and

Supplement 1. When State and local governments do not participate in

the development of an emergency plan, the licensee may submit a

licensee offsite plan to the NRC. Pursuant to the MOU, the NRC can

request that FEMA review a licensee offsite plan and provide its

assessments and findings on the adequacy of such plans and preparedness

evaluated under Supplement 1.

All funds collected under this rule will revert to the United

States Treasury to offset appropriated funds obligated by FEMA for its

REP Program. The Department of the Treasury requested that the user fee

rule provide for the use of electronic billing and payment mechanisms.

FEMA worked with the Department of the Treasury to effect these

procedures and now provides for payment of bills by electronic

transfers through Automated Clearing House (ACH) credit payments. The

Department of the Treasury recently revised publication I-TFM 6-8000 to

require, under section 8025.30, all funds to be collected by electronic

funds transfer when such collection would be cost-effective,

practicable, and consistent with current statutory authority.

Discussion of Comments on Proposed Rule

In response to FEMA's request for public comments in connection

with the Federal Register publication of the proposed final rule, 44

CFR part 354, FEMA received comments from 80 individuals representing

32 utilities, one Federal agency, one industry association, 33 members

of Congress (some commenting via multi-signatory letters), two State

Governors, eight State emergency management agencies, two public

service commissions and one private citizen.

Comment. A number of utilities, Members of Congress, and State

representatives commented that a methodology, such as NUMARC's proposed

methodology, with a site-specific element is more equitable than the

flat fee and should be adopted.

Discussion. FEMA considered the comments received in support of the

inclusion of site-specific charges in the user fees, balanced against

the many benefits of a methodology that did not require the distinction

between site-specific and generic REP-related activities. FEMA also

used actual FYs 1993 and 1994 data to calculate and analyze the bills

that would have resulted using the current methodology, the flat fee,

the NUMARC proposed methodology, and the historically-based

methodology. The results support the historically-based methodology as

a fair and equitable method for determining user fees. FEMA concluded

that, by changing the flat fee methodology to include a site-specific,

plume pathway EPZ biennial exercise-related component, the methodology

contained in the final rule would be fair and equitable and yet retain

many of the benefits of the flat fee while still responding to the

concerns of proponents of a methodology with a site-specific element.

Response. FEMA has changed the flat fee methodology to one that

includes a site-specific component that factors in plume pathway EPZ

biennial REP exercise-related activities.

Comment. A number of the utilities and some public officials

expressed their strong support of the flat fee methodology, reiterating

the benefits cited in the Supplementary Information section of the

proposed rule. Many supporters also stated that site-specific oriented

methodologies had resulted in disproportionately large fees to some

utilities and that the flat fee remedied this inequity.

Discussion. FEMA considered comments submitted in support of the

flat fee and concluded that the historically-based methodology

contained in the final rule preserves many of the benefits cited by

proponents of the flat fee while responding to the concerns expressed

by commenters who opposed the flat fee.

Response. The final rule changes the methodology from a flat fee

approach to a methodology that has a flat component and a historically-

based, site-specific component reflecting plume pathway EPZ biennial

exercise activities.

Comment. Several utilities commented that the user fee rule covers

services whether or not they directly support NRC commercial nuclear

power plant licensing requirements and stated that utilities should not

be charged for services that fall outside the area of nuclear

regulation, including Department of Defense (DOD) and Department of

Energy (DOE) facilities, as well as other NRC licensed facilities.

Discussion. The FEMA/NRC Memorandum of Understanding allows the NRC

to request FEMA REP Program support, as necessary, for NRC licensees

other than those for commercial nuclear power plants. Since the

potential exists for the NRC to request such REP Program support for

other licensees, the rule is not limited to 10 CFR part 50 licensees.

At this time, however, FEMA is assessing fees only for licensees of

commercial nuclear power plants, since activities involving other

licensees have been very limited or non-existent and are expected to

remain so and the NRC has not requested FEMA assessment and findings on

the adequacy of offsite planning and preparedness for these licensees.

With respect to DOD and DOE facilities, 44 CFR part 354 applies only to

NRC licensed facilities, not to DOE and DOD facilities.

Response. No change is necessary because current language in this

rule is not limited to 10 CFR part 50 NRC commercial nuclear power

plant licensees and is not intended to be so limited.

Comment. Several utilities and many Members of Congress and State

officials commented that the flat fee is not fair and equitable since

it does not reflect the actual costs incurred or expended on the

beneficiary and because it increases some fees without an increase in

service.

Discussion. The methodology specified in final rule 44 CFR part 354

contains a site-specific exercise component, which does reflect actual

costs historically expended on the beneficiary. Since exercise

activities constitute the majority of site-specific REP activities, if

services in support of site-specific exercise activities were to

increase or decrease, that change would be reflected in future user

fees for that site.

Response. Changes made to the rule respond to the intent of the

comment.

Comment. Many utilities, Members of Congress, and State officials

commented that the flat fee is charged to all plants regardless of

size, population density of the surrounding area, or number of

governmental jurisdictions and that this places an unfair share of the

cost of FEMA services on the customers of [[Page 15630]] utilities in

less urban areas and areas with fewer governmental jurisdictions.

Discussion. The methodology specified in the final user fee rule

includes a site-specific exercises component. Since site-specific

exercises reflect differences in EPZ populations and number of

jurisdictions, and since exercises represent the majority of site-

specific REP Program activities, the methodology specified in final

rule 44 CFR part 354 does account for these factors.

Response. The change from a flat fee methodology to a methodology

that includes a site-specific exercise component responds to this

comment.

Comment. One utility commented that sections 354.2(a) and

354.3(d)(1) refer to a ``license to decommission'' a commercial nuclear

power plant. Since such an NRC license does not exist, references to

this license should be deleted.

Discussion. FEMA agrees with this comment.

Response. References to a ``license to decommission'' have been

deleted from sections 354.2(a) and 354.3(d)(1).

Comment. One utility commented that sections 354.2(b) and

354.3(d)(2) should be clarified to limit the regulation's applicability

to only those possession-only licensees that have neither requested nor

received an exemption from NRC 10 CFR 50.54(q) requirements concerning

offsite radiological emergency response planning.

Discussion. It is appropriate to exclude possession-only licensees

that have received an exemption from offsite radiological emergency

response planning. However, it would be inappropriate to exclude

possession-only licensees that have requested, but not yet received,

this exemption.

Response. The phrase ``with the exception of licensees that have

received an NRC-approved exemption to 10 CFR 50.54(q) requirements''

has been added to sections 354.2(b) and 354.3(d)(2).

Comment. One utility commented that section 354.4(b), now section

354.4(e), should be revised to clarify the reference to FEMA closing

out the ``official docket,'' since there is no formal mechanism for

officially closing out the FEMA docket for a plant. Suggested

replacement language includes the phrase ``Commencing from the date of

receipt, user fees will no longer be assessed for that site.''

Discussion. The reference to a FEMA official docket has been

deleted. The substitute language suggested by the commenter is

acceptable, with the exception of the phrase ``from the date of

receipt.'' Since the user fees for a particular fiscal year will not be

prorated to cover just a portion of that year, the assessment of user

fees for the discontinued plant would cease at the end of the fiscal

year in which the plant was exempted by the NRC.

Response. The following language was added to section 354.4(e):

``Upon receipt of a copy from the NRC of the NRC-approved exemption to

10 CFR 50.54(q) requirements stating that offsite radiological

emergency planning and preparedness is no longer required at a

particular commercial nuclear power plant site, FEMA will discontinue

REP Program services. Commencing at the beginning of the next fiscal

year, a user fee will no longer be assessed for that site.''

Comment. One utility commented that FEMA should consider future

changes to the regulation that would reduce or remove generic costs

associated with REP Program activities (such as program administration,

policy and guidance development, research, etc.) from the fee base,

since these costs are associated with the broader societal benefits of

the REP Program and benefit the State and local governments as well as

the licensees.

Discussion. These generic activities are carried out specifically

to support the offsite activities of the NRC's licensing requirements

that govern the commercial nuclear power plants. Therefore, despite a

possible broader benefit, it is appropriate for the nuclear power plant

utilities to be charged for REP Program generic activities.

Response. No change.

Comment. One utility commented that requiring utilities to pay the

user fee in the month of December (beginning after FY 1995) places an

undue hardship on most utilities. It recommended that bills be sent out

in December with payment allowed in December or January.

Discussion. Inasmuch as possible, FEMA intends to send out the user

fee bills in December of the applicable fiscal year for payment in

either December or January, in order to provide more payment

flexibility to the licensees.

Response. FEMA will, to the extent possible, send out the user fee

bills in December of the applicable fiscal year.

Comment. Several utilities commented that the flat fee places an

unfair burden on those utilities that have invested in and worked

closely with State and local offsite radiological emergency response

organizations to establish highly effective programs that require

minimal FEMA interaction to monitor and assess.

Discussion. The proposed flat fee methodology has been changed to

the historically-based methodology that factors in a site-specific,

plume pathway EPZ biennial exercise component. This methodology does

recognize State and local organizations' efficiencies in REP planning

and preparedness insofar as many of these efficiencies are reflected in

site-specific, plume pathway EPZ biennial exercise activities.

Response. The change from a flat fee methodology to a methodology

that includes a site-specific, plume pathway EPZ biennial exercise

component responds to this comment.

Comment. A number of utilities, Members of Congress, State

representatives, and the industry organization commented that the

recovery of budgeted funds prior to expenditure and the use of a

methodology that does not take site-specific activities into

consideration fails to provide accountability and the desire to

maximize the efficient use of resources, e.g., evaluators.

Discussion. The addition of the site-specific exercise component

allows for exercise costs, including costs for exercise evaluators, to

be factored in based on historical costs. FEMA's desire to maximize the

efficient use of REP Program resources is based primarily on the

necessity of protecting the health and safety of FEMA's ultimate

customers, i.e., the State and local governments and the people they

represent, not upon accountability to the licensees.

Response. The change from a flat fee methodology to a methodology

that includes a site-specific component responds to this comment.

Comment. Two utilities and a private citizen commented that it is

unfair and inequitable for FEMA to recover any of the REP budget from

commercial nuclear utilities; these costs should be paid from tax

revenues.

Discussion. The requirement to recover the REP Program budget costs

from the program's beneficiaries is not a FEMA requirement, but rather

a Congressional mandate. The rule implements Title V of the Independent

Offices Appropriations Act of 1952, 31 U.S.C. 9701, which authorizes

FEMA to recover to the fullest extent possible costs attributable to

services to identifiable recipients. FEMA's appropriation acts for FYs

1993, 1994, and 1995 direct FEMA to publish the specific methodology to

be employed to recover these costs.

Response. No change.

Comment. Two utilities commented that as plants are decommissioned,

the flat fee would continually increase for [[Page 15631]] the

remaining sites with operational REP activities.

Discussion. The final rule does not contain the flat fee

methodology but, instead, provides a historically-based methodology

that includes charges site-specific for plume pathway EPZ biennial REP

exercises. However, the historically-based methodology does contain a

flat component reflecting activities not related to plume pathway EPZ

biennial exercises. As plants are decommissioned, this component will

increase, although not to the same extent as it would have under the

flat fee. It should be noted that, regardless of the number of plants,

the activities carried out under the flat component must still be

maintained at the same level. This would also have been the case had

the NUMARC methodology been adopted. Notwithstanding the above,

allowance is made in the methodology for periodic adjustments to the

fees as necessary.

Response. No change, other than the change to a historically-based

methodology.

Comment. One utility commented that FEMA should be required to

provide greater detail on the nature of costs categorized as generic

and questioned why the ratio of generic to site-specific is so high.

Discussion. Under the historically-based methodology, generic

activities are billed under the flat, or non-biennial exercise-related

component. Generic costs cover a number of important REP Program

activities, including policy and guidance development, research, public

education, staff training, and general program administration, which

must be maintained for and have equal benefit to all licensees.

Response. No change.

Comment. One utility commented that it will not be served by FEMA's

one-time adjustment to the billing cycle since the utility's fiscal

year runs from October 1 to September 30. The billing option should be

more flexible.

Discussion. This utility's situation is unique, since it is a

governmental entity and operates on the Government's fiscal year

schedule. Due to the structure of the interim rule methodology, the FY

1994 final bills could not be calculated before the end of FY 1994,

and, thus, this utility will experience a one-time situation where one-

half of its FY 1994 bill and its entire FY 1995 bill will be due during

the Government's FY 1995. Since the FY 1995 bills will be sent out in

April 1995, a one-time adjustment to the billing cycle will not be

necessary in order to allow the other utilities to pay their bill in

their FY 1995, i.e., calendar year 1995.

Response. No change.

Comment. One utility agreed that generic costs incurred by FEMA can

and should be divided equally among the NRC licensees on a per site

basis. However, the utility commented, because site-specific costs vary

widely by utility and in accordance with the nature of any given plant

exercise, the fees cannot be accurately predicted and there is no

demonstrated need to collect them in advance.

Discussion. Since the flat fee methodology has been changed to a

methodology that includes a site-specific exercise component based upon

historical exercise-related costs, the site-specific component is known

at the beginning of the fiscal year. The remaining component is the sum

of the site-specific components subtracted from the total REP budget;

thus the entire user fee for each site can be known at the beginning of

the fiscal year.

Response. The change from a flat fee methodology to a methodology

that includes a site-specific component responds to this comment.

Comment. One utility commented that with regard to earlier deposit

of funds in the U.S. Treasury, FEMA can adopt regulations that require

NRC licensees to prepay REP fees based on historical site-specific

costs and shared generic costs.

Discussion. The final rule does contain a site-specific component

based upon historical biennial exercise-related costs and the remaining

costs are shared equally among the licensees.

Response. The change from a flat fee methodology to a methodology

that includes a historically-based, site-specific exercise component

responds to this comment.

Comment. One utility commented that if FEMA wants to adopt a

levelized fee structure over the two-year cycles, the following method

may be used: Allow low-cost operations to pay one flat fee each year

while high-cost operations would be required to pay a much higher flat

fee each year. In alternating years, FEMA would undercollect based on

services provided and in other years FEMA would overcollect from the

same licensees, based on actual services rendered.

Discussion. The methodology contained in the final rule includes a

historically-based, site-specific, exercise-related component that will

result in a relatively level fee structure over the two-year cycles.

Response. The change from a flat fee methodology to a methodology

that includes a site-specific component responds to the intent of this

comment.

Comment. Several utilities commented that the ability, under the

flat fee, of the States and licensees to request technical assistance

without the concern of additional fee assessment is not a strong

advantage since it could lead to organizations constantly requesting

technical assistance when it is not needed.

Discussion. The historically-based methodology will still permit

the States and licensees to request needed technical assistance without

penalty. However, requests for technical assistance will not increase

the total REP Program budget and, therefore, will not adversely affect

States and licensees with a lesser need for technical assistance.

Response. No change.

Comment. Two utilities commented that if FEMA's administrative

costs for accounting and billing purposes are reduced, FEMA should

delete these costs and positions from the budget, rather than

reallocating the resources since utilities are reducing their staffs

and FEMA should do so too.

Discussion. The FEMA REP staff funded by the S&E portion of FEMA's

REP budget has already been reduced. The remaining staff members are

needed to ensure that all of FEMA's REP Program responsibilities are

adequately addressed and that public health and safety is ensured.

Response. No change.

Comment. The industry association commented that a site that has

received an early site permit (ESP) should not be included in the fee

base because, unlike sites with plants, it does not require ongoing

FEMA services but, rather, a one-time review by FEMA. The ESP holder

may ``bank'' the site for possible future use; thus, the plant may be

built in the future or may never be built.

Discussion. In the future there may be sites that have applied for

and/or received ESPs. The precise extent to which such plants will

require REP Program services is not known at this time, so this

language must remain in the final rule in order to address any possible

contingencies.

Response. No change.

Comment. The industry association commented that Combined Operating

License (COL) holders should not be included in the base until such

time as they require FEMA services, i.e., some years into the

construction process. Also, the association recommended that the rule

specifically exclude COLs for advanced plants built on current plant

sites for which emergency preparedness plans already exist.

Discussion. In the future there may be sites that have applied for

and/or [[Page 15632]] received COLs. The precise extent to which such

plants will require REP Program services is not known at this time, so

this language must remain in the final rule in order to address any

possible contingencies.

Response. No change.

Comment. Several utilities commented that, regardless of the fee

collection methodology, FEMA should be required to continually evaluate

the high cost of contractor labor and eliminate its use whenever

possible, particularly in Medical Services drills. State and local

emergency management personnel should be considered for use as exercise

evaluators, especially if they hold the proper credentials.

Discussion. FEMA does evaluate the use of contractor labor in an

effort to allocate the use of its contractors as efficiently as

possible. However, contractor support services are critical to the

successful implementation of the REP Program primarily because of the

cyclical demands for qualified REP exercise evaluators. It would not be

cost effective to hire FEMA employees in order to respond to cyclical,

fluctuating demands. Also, with the current emphasis on the reduction

of Federal employees, it is unlikely that FEMA would be authorized the

additional staff necessary to replace contractor support. FEMA has

explored the possibility of the use of State and local emergency

management personnel as exercise evaluators; however, FEMA's General

Counsel has determined that, since a REP exercise is a regulatory

exercise used for credit for obtaining and maintaining a license, State

and local personnel cannot be used as evaluators.

Response. No change.

Comment. Two utilities commenting in opposition to the flat fee

stated that the funding mechanism should not be primarily intended to

levelize budget expenses over the two-year exercise cycle, thereby

increasing the predictability of a licensee's bill.

Discussion. Many licensees consider the predictability of their

user fee bills to be extremely useful for planning and budgeting

purposes and would argue that the levelizing of budget expenses over

the two-year exercise cycle and a resulting increase in the

predictability of the licensees' bills should be a goal of the user fee

methodology. The historically-based methodology accommodates these

licensees' need for levelizing and predictability of bills while

addressing some of the other drawbacks of a flat fee expressed by its

opponents.

Response. The change to a historically-based methodology with a

site-specific exercise component preserves the predictability of the

licensees' bill amounts while responding to the concerns of opponents

of the flat fee.

Comment. One utility commented that the rule states that fees for

FEMA personnel and contractors will be assessed as part of the REP

budget whether or not the personnel services support NRC licensed

plants. In this situation, a FEMA REP staffer or contractor could be

sent to respond to a natural disaster and the REP Program budget would

be charged.

Discussion. REP Program contractors would not be funded to respond

to a natural disaster. FEMA did conduct a study that compared the

amount of time that FEMA REP Program staff spent on non-REP activities

with the amount of time spent by FEMA non-REP Program staff on REP

Program activities. The results indicated that there was a ``wash,''

i.e., the amount of time involved was approximately the same.

Response. No change.

Regulatory Flexibility Act. The Director certifies that this final

rule will not have a significant economic impact on a substantial

number of small entities in accordance with the Regulatory Flexibility

Act, 5 U.S.C. 601 et seq., because the rule does not apply to a

substantial number of small entities as defined by the Small Business

Size Standards, 13 CFR 121.601, Division E, Major Group 49, as amended,

57 FR 62520, December 31, 1992, and is not expected (1) to have

significant secondary or incidental effects on a substantial number of

small entities, nor (2) to create any additional burden on a

substantial number of small entities.

National Environmental Policy Act. The Director has determined

under the National Environmental Policy Act of 1969 and FEMA

Regulation, 44 CFR part 10, Environmental Considerations, that this

final rule is not a major Federal action significantly affecting the

quality of the human environment. Therefore, an environmental impact

statement is not required.

Executive Order 12866, Regulatory Planning and Review. This final

rule is not a significant regulatory action under Executive Order 12866

of September 30, 1993, Regulatory Planning and Review. It will not have

an annual effect on the economy of $100 million or more or adversely

affect in a material way the economy, a sector of the economy,

productivity, competition, jobs, the environment, public health or

safety, or State, local, or tribal governments or communities. The

final rule does not create a serious inconsistency or interference with

an action taken or planned by another agency. It does not materially

alter the impact of entitlements, grants, or loan programs, nor would

it raise novel legal or policy issues. To the greatest extent possible

the final rule adheres to the regulatory principles set forth in

Executive Order 12866. This final rule has not been reviewed by the

Office of Management and Budget under the procedures of Executive Order

12866.

Paperwork Reduction Act. This final rule does not contain

collection of information requirements and is not subject to the

Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et seq.).

Executive Order 12612, Federalism. A Federalism assessment under

E.O. 12612 has been prepared and a copy is available for inspection and

copying for a fee from the Rules Docket Clerk, address noted above.

List of Subjects in 44 CFR Part 354

Disaster assistance, Intergovernmental relations, Nuclear power

plants and reactors, Radiation protection, and Technical assistance.

Accordingly, 44 CFR part 354 is revised to read as follows:

PART 354--FEE FOR SERVICES TO SUPPORT FEMA'S OFFSITE RADIOLOGICAL

EMERGENCY PREPAREDNESS PROGRAM

Sec.

354.1 Purpose.

354.2 Scope.

354.3 Definitions.

354.4 Assessment of fees.

354.5 Description of services.

354.6 Billing and payment of fees.

354.7 Failure to pay.

Authority: Sec. 109, Pub. L. 96-295, 94 Stat. 780; Sec. 2901,

Pub. L. 98-369, 98 Stat. 494; Title III, Pub. L. 103-327, 108 Stat.

2323-2325; EO 12148, 3 CFR, 1979 Comp., p. 412 (50 U.S.C. App. 2251

note); EO 12657, 3 CFR, 1988 Comp., p. 611.

Sec. 354.1 Purpose.

This part establishes the methodology for FEMA to assess and

collect user fees from Nuclear Regulatory Commission (NRC) licensees of

commercial nuclear power plants to recover at least 100 percent of the

amounts anticipated by FEMA to be obligated for its Radiological

Emergency Preparedness (REP) Program as authorized under Title III,

Public Law 103-327, 108 Stat. 2323-2325. As stipulated by Public Law

103-327, the methodology for assessment and collection of fees shall be

fair and equitable, and shall reflect the full amount of costs of

providing radiological emergency planning, preparedness, response and

associated services. Such fees will be assessed in [[Page 15633]] a

manner that reflects the use of agency resources for classes of

regulated persons and the administrative costs of collecting such fees.

Fees received pursuant to this section shall be deposited in the

general fund of the Treasury as offsetting receipts. Assessment and

collection of such fees are only authorized during fiscal year (FY)

1995.

Sec. 354.2 Scope.

The regulation in this part applies to all persons or licensees who

have applied for or have received from the NRC:

(a) A license to construct or operate a commercial nuclear power

plant;

(b) A possession-only license for a commercial nuclear power plant,

with the exception of licensees that have received an NRC-approved

exemption to 10 CFR 50.54(q) requirements;

(c) An early site permit for a commercial nuclear power plant;

(d) A combined construction permit and operating license for a

commercial nuclear power plant; or

(e) Any other NRC licensee that is now or may become subject to

requirements for offsite radiological emergency planning and

preparedness.

Sec. 354.3 Definitions.

As used in this part, the following terms and concepts are defined:

(a) FEMA means the Federal Emergency Management Agency.

(b) NRC means the U. S. Nuclear Regulatory Commission.

(c) Technical assistance means services provided by FEMA to

accomplish offsite radiological emergency planning, preparedness and

response, including but not limited to, provision of support for the

preparation of offsite radiological emergency response plans and

procedures, and provision of advice and recommendations for specific

aspects of radiological emergency planning, preparedness and response,

such as alert and notification and emergency public information.

(d) Persons or Licensee means the utility or organization that has

applied for or has received from the NRC:

(1) A license to construct or operate a commercial nuclear power

plant;

(2) A possession-only license for a commercial nuclear power plant,

with the exception of licensees that have received an NRC-approved

exemption to 10 CFR 50.54(q) requirements;

(3) An early site permit for a commercial nuclear power plant;

(4) A combined construction permit and operating license for a

commercial nuclear power plant; or

(5) Any other NRC license that is now or may become subject to

requirements for offsite radiological emergency planning and

preparedness activities.

(e) RAC means Regional Assistance Committee chaired by FEMA with

representatives from the Nuclear Regulatory Commission, Environmental

Protection Agency, Department of Health and Human Services, Department

of Energy, Department of Agriculture, Department of Transportation,

Department of Commerce, Department of Interior, and other Federal

departments and agencies as appropriate.

(f) REP means Radiological Emergency Preparedness as in FEMA's REP

Program.

(g) Fiscal Year means the Federal fiscal year commencing on the

first day of October through the thirtieth day of September.

(h) Federal Radiological Preparedness Coordinating Committee

(FRPCC) means a committee chaired by FEMA with representatives from the

Nuclear Regulatory Commission, Environmental Protection Agency,

Department of Health and Human Services, Department of Interior,

Department of Energy, Department of Transportation, Department of

Agriculture, Department of Commerce, Department of State, Department of

Veterans Affairs, General Services Administration, National

Communications System, the National Aeronautics and Space

Administration and other Federal departments and agencies as

appropriate.

(i) Site means the location at which one or more commercial nuclear

power plants (reactor units) have been, or are planned to be,

constructed.

(j) Site-specific services mean offsite radiological emergency

planning, preparedness and response services provided by FEMA personnel

and by FEMA contractors that pertain to a specific commercial nuclear

power plant site.

(k) EPZ means emergency planning zone.

(l) Plume pathway EPZ means for planning purposes, the area within

approximately a 10-mile radius of a nuclear plant site.

(m) Biennial exercise means the joint licensee/State and local

government exercise, evaluated by FEMA, conducted around a commercial

nuclear power plant site once every two years in conformance with 44

CFR part 350.

(n) Obligate or obligation means a legal reservation of

appropriated funds for expenditure.

Sec. 354.4 Assessment of fees.

Assessment of user fees from licensees is based on a methodology

that includes charges for REP Program services provided by both FEMA

personnel and FEMA contractors. Beginning with FY 1995, a four year

cycle is established with predetermined user fee assessments which will

be collected each year of the cycle. The assessments will initially be

at the level indicated in the FY 1995 bills and, as described in

paragraphs (b) and (d) of this section, for the remainder of the four

year cycle, as authorized. The initial four year cycle will run from FY

1995-1998. The following four year cycle will run from FY 1999-2003.

Fees will be assessed only for REP Program services provided by FEMA

personnel and by FEMA contractors and not for those services provided

by other Federal agencies involved in the FRPCC or the RACs.

(a) Description of fee components. The fee for each site consists

of two distinct components:

(1) A site-specific, biennial exercise-related component to recover

the portion of the REP program budget associated only with plume

pathway emergency planning zone (EPZ) biennial exercise-related

activities.

(2) A flat fee component that is the same for each site and

recovers the remaining portion of the REP Program budgeted funding

which does not include biennial exercise-related activities.

(b) Determination of site-specific, biennial exercise-related

component for FEMA personnel. An average biennial exercise-related cost

for FEMA personnel has been determined for each commercial nuclear

power plant site in the REP Program. This cost, which has been

annualized (dividing the average biennial exercise-related cost by

two), is based on the average number of hours expended by FEMA

personnel in REP exercise-related activities for each site. The average

number of hours has been determined based on an analysis of site-

specific exercise activity expended since the inception of FEMA's user

fee program (1991). The actual user fee assessment for this component

is determined by multiplying the average number of REP exercise-related

hours, which has been determined and annualized for each site, by the

average hourly rate for a REP Program employee in effect for the fiscal

year. In FY 1995, the hourly rate has been determined to be $29.34 by

the Chief Financial Officer of FEMA. The hourly rate will be revised

annually to reflect actual budget and cost of living factors, but the

number of site-specific exercise hours, [[Page 15634]] as annualized,

will remain constant for user fee calculations and assessments

throughout the four year cycle, e.g., FY 1995-1998. Exercise activity

will continue to be tracked and monitored during the initial and

subsequent four year cycles. Appropriate adjustments will be made to

this component for calculation of user fee assessments during

subsequent four year cycles.

(c) Determination of site-specific, biennial exercise-related

component for FEMA contract personnel. An average biennial exercise-

related cost for REP contractors has been determined for each

commercial nuclear power plant site in the REP Program. This cost,

which has been annualized (dividing the average biennial exercise-

related cost by two), is based on the average costs of contract

personnel in REP site-specific exercise-related activities since the

inception of FEMA's user fee program (1991). Exercise activity will

continue to be tracked and monitored during the initial and subsequent

four year cycles. Appropriate adjustments will be made to this

component for calculation of user fee assessments during subsequent

four year cycles.

(d) Determination of flat fee component. For each year of the four

year cycle, the remainder of REP Program budgeted funds is recovered as

a flat fee component. Specifically, the flat fee component is

determined by subtracting the total of the FEMA personnel and

contractor site-specific, biennial exercise-related components, as

outlined in paragraphs (b) and (c) of this section, from the total REP

budget for that fiscal year. The resulting amount is equally divided

among the total number of licensed commercial nuclear power plant sites

as defined under Sec. 354.2, Scope, to arrive at each site's flat fee

component for that fiscal year.

(e) Discontinuation of Charges. Upon receipt of a copy from the NRC

of the NRC-approved exemption to 10 CFR 50.54(q) requirements stating

that offsite radiological emergency planning and preparedness is no

longer required at a particular commercial nuclear power plant site,

FEMA will discontinue REP Program services. Commencing at the beginning

of the next fiscal year, a user fee will no longer be assessed for that

site.

Sec. 354.5 Description of services.

Site-specific and other REP Program services provided by FEMA and

FEMA contractors for which licensees would be assessed fees include,

but are not limited to, the following:

(a) Site-specific, plume pathway EPZ biennial exercise-related

component services. (1) Scheduling of plume pathway EPZ biennial

exercises.

(2) Review of plume pathway EPZ biennial exercise objectives and

scenarios.

(3) Pre-plume pathway EPZ biennial exercise logistics.

(4) Conduct of plume pathway EPZ biennial exercises, evaluations,

and post exercise briefings.

(5) Preparing, reviewing and finalizing plume pathway EPZ biennial

exercise reports, notice and conduct of public meetings.

(6) Activities related to Medical Services and other drills

conducted in support of a biennial, plume pathway exercise.

(b) Flat fee component services. (1) Evaluation of State and local

offsite radiological emergency plans and preparedness.

(2) Scheduling of other than plume pathway EPZ biennial exercises.

(3) Development of other than plume pathway EPZ biennial exercise

objectives and scenarios.

(4) Pre-other than plume pathway EPZ biennial exercise logistics.

(5) Conduct of other than plume pathway EPZ biennial exercises and

evaluations.

(6) Preparing, reviewing and finalizing other than plume pathway

EPZ biennial exercise reports, notice and conduct of public meetings.

(7) Preparation of findings and determinations on the adequacy or

approval of plans and preparedness.

(8) Conduct of the formal 44 CFR part 350 review process.

(9) Providing technical assistance to States and local governments.

(10) Review of licensee submissions pursuant to 44 CFR part 352.

(11) Review of NRC licensee offsite plan submissions under the NRC/

FEMA Memorandum of Understanding on Planning and Preparedness, and

NUREG-0654/FEMA-REP-1, Revision 1, Supplement 1. Copies of the NUREG-

0654 may be obtained from the Superintendent of Documents, P.O. Box

371954, Pittsburgh, PA 15250-7954.

(12) Participation in NRC adjudicatory proceedings and any other

site-specific legal forums.

(13) Alert and notification system reviews.

(14) Responses to petitions filed under 10 CFR 2.206.

(15) Disaster-initiated reviews and evaluations.

(16) Congressionally-initiated reviews and evaluations.

(17) Responses to licensee's challenges to FEMA's administration of

the fee program.

(18) Response to actual radiological emergencies.

(19) Development of regulations, guidance, planning standards and

policy.

(20) Coordination with other Federal agencies to enhance the

preparedness of State and local governments for radiological

emergencies.

(21) Coordination of REP Program issues with constituent

organizations such as the National Emergency Management Association,

Conference of Radiation Control Program Directors, and the Nuclear

Energy Institute.

(22) Implementation and coordination of REP Program training with

FEMA's Emergency Management Institute (EMI) to assure effective

development and implementation of REP training courses and conferences.

(23) Participation of REP personnel as lecturers or to perform

other functions at EMI, conferences and workshops.

(24) Services associated with the assessment of fees, billing, and

administration of this part.

Sec. 354.6 Billing and payment of fees.

FEMA will forward bills to licensees based on the assessment

methodology set forth in Sec. 354.4 to recover the full amount of the

funds budgeted by FEMA to provide REP Program services. Licensees with

multiple sites will receive consolidated bills. FEMA will forward one

bill to each licensee during the first quarter of the fiscal year, with

payment due within 30 days. If minor adjustments are necessary due to

FEMA exceeding its original budget for the fiscal year, the adjustment

will appear in the bill for the subsequent fiscal year.

Sec. 354.7 Failure to pay.

In any case where FEMA believes that a licensee has failed to pay a

prescribed fee required under this part, procedures will be implemented

in accordance with 44 CFR part 11, subpart C, to effectuate collections

under the Debt Collection Act of 1982 (31 U.S.C. 3711 et seq.).

Dated: March 16, 1995.

James L. Witt,

Director.

[FR Doc. 95-6998 Filed 3-23-95; 8:45 am]

BILLING CODE 6718-20-P