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

FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 354

RIN 3067-AC87

Fee for Services To Support FEMA's Offsite Radiological Emergency

Preparedness Program

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Interim final rule with request for comments.

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SUMMARY: This rule establishes the policies and administrative basis

for FEMA to assess fees on Nuclear Regulatory Commission (NRC)

licensees to recover the full amount of the funds that we obligate to

provide services for offsite radiological emergency planning and

preparedness beginning in Fiscal Year (FY) 1999.

DATES: This rule is effective December 15, 1998. Please submit your

comments on or before February 16, 1999.

ADDRESSES: We invite your comments on this rule. Please submit them to

the Rules Docket Clerk, Office of the General Counsel, Federal

Emergency Management Agency, 500 C Street SW., room 840, Washington, DC

20472, (telefax) 202-646-4536, or (email) [email protected].

FOR FURTHER INFORMATION CONTACT: Vanessa E. Quinn, Preparedness,

Training, and Exercises Directorate, Federal Emergency Management

Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3664,

(telefax) 202-646-3508, (email) [email protected].

SUPPLEMENTARY INFORMATION:

Background: A Chronology

1991. On March 6, 1991, we 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 we are publishing a new approach for

the assessment and collection of fees from licensees for FY 1999 and

beyond, part 353 remains in effect and will apply in any subsequent

fiscal year for which the Congress does not authorize us to collect

user fees for generic services.

1992. Pub. L. 102-389, October 6, 1992, 106 Stat. 1571-

1606, expanded reimbursable REP Program activities by authorizing us to

charge licensees of commercial nuclear power plants fees to recover the

full amount of the funds anticipated to be obligated for our REP

Program for FY 1993.

1993. On July 1, 1993, we published in the Federal

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

establish and set forth the policies and administrative basis for

assessing and collecting these fees. We reserved the option to reissue

or amend part 354 for other fiscal years provided that the Congress

enacted appropriate authority.

Pub. L. 103-124, September 23, 1993, 107 Stat.1297,

directed us to continue assessing and collecting fees to recover the

full amount of the funds anticipated to be obligated for our 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 final

rule, 44 CFR part 354, we calculated the final hourly user

[[Page 69002]]

fee rate for FEMA personnel during FY 1993 at $122.88. On December 13,

1993, we published a notice to this effect in the Federal Register (58

FR 65274). The notice explained that we would not publish a final rule

at that time, pending a reconsideration of the methodology used for FY

1993 and taking into consideration the comments received on interim

final rule 44 CFR part 354.

1994. We continued the methodology established by the

interim final rule 44 CFR part 354 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 final

rule, we calculated the final hourly user fee rate for FEMA personnel

during FY 1994 at $120.79. On November 28, 1994, we published a notice

to this effect in the Federal Register (59 FR 60792-60793).

On July 27, 1994, we published a proposed rule in the

Federal Register, 59 FR 38306--38309, 44 CFR part 354. Predicated on

Congress passing authorizing legislation, this rule proposed to

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

by FEMA contractors whether or not those services directly supported

NRC licensing requirements.

1995. Under our appropriation for FY 1995, Pub. L. 103-

327, September 28, 1994, 108 Stat. 2325, the Congress authorized us to

assess and collect fees from Nuclear Regulatory Commission (NRC)

licensees to recover approximately, but not less than, 100 percent of

the amounts that we anticipated would be obligated for our Radiological

Emergency Preparedness (REP) Program. This appropriations act further

required us to publish 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. Pub. L. 103-327 granted authority for these user fees to

be assessed and collected for fiscal year 1995 services only. Although

the public law was limited to FY 1995, we reserved the option of

reissuing or amending part 354 for other fiscal years provided that the

Congress enacts appropriate authority.

Under final rule 44 CFR part 354, 60 FR 15628-15634,

published on March 24, 1995, we acted to recover fiscal year budgeted

funds for REP Program services performed by FEMA personnel and by FEMA

contractors whether or not those services directly supported NRC

licensing requirements. We assessed fees for FY 1995-FY 1998 using a

historically-based methodology in which we calculated two components

for each site: (1) A site-specific, biennial exercise-related component

and (2) a flat fee component.

Pub. L. 105-276, 112 Stat. 2502, established in the

Treasury a Radiological Emergency Preparedness Fund, which will be

available for offsite radiological emergency planning, preparedness,

and response. This Act gives continuing authority to the Director of

FEMA, beginning in fiscal year 1999 and thereafter, to publish fees to

be assessed and collected, applicable to persons subject to our

radiological emergency preparedness regulations. As in previous Acts,

we must collect not less than 100 percent of the amounts needed for our

radiological emergency preparedness program, and the methodology for

assessment and collection of fees must be fair and equitable. Fees

received must be deposited in the Fund as offsetting collections and

become available on October 1, 1999, and remain available until

expended.

Historically-based methodology. Final rule 44 CFR part 354 adopted

the historically-based approach to the methodology in place of the flat

fee approach described in the proposed rule. We adopted this approach

based on the numerous public comments that we received on our proposed

flat fee methodology and on the results of our comparison of different

user fee methodologies, which used actual data from fiscal years 1993

and 1994.

The historically-based methodology contains elements of the flat

fee methodology and of the Nuclear Energy Institute (NEI) methodology.

The 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.

The historically-based methodology also 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;

(4) A reduction of our resources needed to track administrative

costs, thus making the accounting and billing process more efficient

and cost-effective for the Government and freeing up our scarce

resources for other REP Program activities; and

(5) The historically-based methodology ensures fairness and equity

in billing licensees.

Agreements and criteria for services we provide. We provide

services primarily under a Memorandum of Understanding (MOU) between

the NRC and FEMA, published on September 14, 1993 (58 FR 47996--48001)

and under regulations issued by both FEMA (44 CFR parts 350, 351, and

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

We evaluate radiological emergency response plans and exercises

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. Under the MOU, the NRC can request

that we review a licensee offsite plan and provide its assessments and

findings on the adequacy of such plans and preparedness evaluated under

Supplement 1.

Electronic billing and payment. We will deposit all funds collected

under this rule to the newly established Radiological Emergency

Preparedness Fund as offsetting collections, which will be available

for our REP Program. The Department of the Treasury recently revised

Sec. 8025.30 of publication I-TFM 6-8000 to require Federal agencies to

collect funds by electronic funds transfer when such collection is

cost-effective, practicable, and consistent with current statutory

authority. Working with the Department of the Treasury we now provide

for payment of bills by electronic transfers through Automated Clearing

House (ACH) credit payments.

Revisions Pertaining to This Interim Rule

This Interim Final Rule makes two principal changes to 44 CFR part

354. The first revision is that we increase the billing cycle from four

years to six years. The first six-year cycle will encompass FY 1999-

2004. We will continue to track and monitor exercise activity during

this period of time and will make appropriate adjustments to this

component to calculate user fee assessments for later six-year cycles.

Under the second revision fees received under this rule will be

deposited in the newly established Radiological Emergency Preparedness

Fund. Fees received will be deposited in

[[Page 69003]]

the Fund as offsetting collections and will be available for offsite

radiological emergency preparedness, planning, and response activities

beginning on October 1, 1999.

Administrative Procedure Act Determination

We are publishing this interim final rule without opportunity for

prior public comment under the Administrative Procedure Act, 5 U.S.C.

553. I have determined that a comment period would be unnecessary,

impractical, and contrary to the public interest. This interim final

rule does not contain any significant, substantive changes from

previous REP regulations, but reflects changes to internal procedures

under which we will assess and collect fees from NRC licensees.

Procedures affecting NRC licensees remain substantially unchanged.

The procedural changes do not affect the rights of NRC licensees to

dispute the nature or the amount of the assessment or method of

collection. Further, the procedural changes in this interim final rule

primarily affect how we will participate in the offset program. In

order to implement the program for assessments made for FY 1999 and

beyond, we need to modify and publish our regulations. We invite public

comments on the interim final rule, and will take any comments into

account when we publish the final rule. I determine that good cause

exists and that it is in the public interest to issue this interim

final rule without opportunity for prior public comment.

Regulatory Flexibility Act

I certify that this interim final rule is exempt from the

requirements of the Regulatory Flexibility Act because it makes minor

and technical amendments mandated by statute, 31 U.S.C. 3720A and by

the Department of the Treasury Interim Rule. This interim final rule

does not contain any significant substantive changes from FEMA's

present debt collection regulations and does not substantially change

how FEMA collects debts owed the United States that arise under FEMA

programs. The Regulatory Flexibility Act does not apply to this interim

final rule and no regulatory analysis has been prepared.

Paperwork Reduction Act

The Office of Management and Budget (OMB) has approved the

information collection requirements contained in this interim final

rule under the provisions of the Paperwork Reduction Act of 1980 (44

U.S.C. 3501 et seq.) and has assigned OMB control number 3067-0122.

Executive Order 12866, Regulatory Planning and Review

Promulgation of this interim final rule is required by statute, 31

U.S.C. 3716 and 3720A, and is not a significant regulatory action

within the definition of E.O.12866. To the extent possible under the

statutory requirements of 31 U.S.C. 3720A this interim final rule

adheres to the principles of regulation set forth in Executive Order

12866. The Office of Management and Budget did not review this interim

final rule under Executive Order 12866.

Congressional Review of Agency Rulemaking

We have sent this interim final rule to the Congress and to the

General Accounting Office under the Congressional Review of Agency

Rulemaking Act, Pub. L. 104-121. This interim final rule is not a

``major rule'' within the meaning of that Act. It does not result in

nor is it likely to result in an annual effect on the economy of

$100,000,000 or more; it will not result in a major increase in costs

or prices for consumers, individual industries, Federal, State, or

local government agencies, or geographic regions; and it will not have

``significant adverse effects'' on competition, employment, investment,

productivity, innovation, or on the ability of United States-based

enterprises to compete with foreign-based enterprises.

This interim final rule is exempt from the requirements of the

Regulatory Flexibility Act, as certified previously, and complies with

the Paperwork Reduction Act.

This interim final rule is not an unfunded Federal mandate within

the meaning of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4.

The rule does not meet the $100,000,000 threshold before that Act

applies.

List of Subjects in 44 CFR Part 354

Disaster assistance, Commercial nuclear power plants and reactors,

Intergovernmental relations, Radiation protection, and Technical

assistance.

Accordingly, we revise 44 CFR part 354 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 of this regulation.

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: Reorganization Plan No. 3 of 1978, 43 FR 41943, 3

CFR, 1978 Comp., p. 329; 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; Pub. L. 105-276, 112 Stat. 2502; EO 12148, 44

FR 43239, 3 CFR, 1979 Comp., p. 412; EO 12657, 53 FR 47513, 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 that we anticipate to obligate for our Radiological Emergency

Preparedness (REP) Program as authorized under Title III, Pub. L. 105-

276, 112 Stat. 2461, 2502. Under Pub. L. 105-276 the methodology for

assessment and collection of fees must be fair and equitable and must

reflect the full amount of costs of providing radiological emergency

planning, preparedness, response and associated services. Our

assessment of fees will include our costs for use of agency resources

for classes of regulated persons and our administrative costs to

collect the fees. Licensees will deposit fees by electronic transfer

into the Radiological Emergency Preparedness Fund in the U.S. Treasury

as offsetting collections.

Sec. 354.2 Scope of this regulation.

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.

The following definitions of terms and concepts apply to this part:

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.

EPZ means emergency planning zone.

[[Page 69004]]

FEMA means the Federal Emergency Management Agency.

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.

Fiscal Year means the Federal fiscal year commencing on the first

day of October through the thirtieth day of September.

NRC means the U.S. Nuclear Regulatory Commission.

Obligate or obligation means a legal reservation of appropriated

funds for expenditure.

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.

Plume pathway EPZ means for planning purposes, the area within

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

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.

REP means Radiological Emergency Preparedness as in FEMA's REP

Program.

Site means the location at which one or more commercial nuclear

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

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.

Technical assistance means services provided by FEMA to accomplish

offsite radiological emergency planning, preparedness and response,

including 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.

Sec. 354.4 Assessment of fees.

(a)(1) We, FEMA, assess user fees from licensees using on a

methodology that includes charges for REP Program services provided by

both our personnel and our contractors. Beginning in FY 1995, we

established a four-year cycle from FY 1995-1998 with predetermined user

fee assessments that were collected each year of the cycle. The

following six-year cycle will run from FY 1999 through FY 2004. The fee

for each site consists of two distinct components:

(i) 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. We determine this component by reviewing average biennial

exercise-related activities/hours that we use in exercises conducted

since the inception of our REP user fee program in 1991. We completed

an analysis of REP Program activities/hours used during the FY 1991-

1995 cycle at the end of that four-year cycle. We will make adjustments

to the site-specific user fees for the next proposed FY 1999-2004 six-

year cycle.

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

recovers the remaining portion of the REP Program budgeted funding that

does not include biennial exercise-related activities.

(2) We will assess fees only for REP Program services provided by

our personnel and by our contractors, and we will not assess fees for

those services that other Federal agencies involved in the FRPCC or the

RACs provide.

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

component for our personnel. We will determine an average biennial

exercise-related cost for our personnel for each commercial nuclear

power plant site in the REP Program. We base this annualized cost

(dividing the average biennial exercise-related cost by two) on the

average number of hours spent by our personnel in REP exercise-related

activities for each site. We will determine the average number of hours

using an analysis of site-specific exercise activity spent since the

beginning of our user fee program (1991). We determine the actual user

fee assessment for this component by multiplying the average number of

REP exercise-related hours that we determine and annualize for each

site by the average hourly rate in effect for the fiscal year for a REP

Program employee. We will revise the hourly rate annually to reflect

actual budget and cost of living factors, but the number of annualized,

site-specific exercise hours will remain constant for user fee

calculations and assessments throughout the six-year cycle. We will

continue to track and monitor exercise activity during the six-year

cycle, FY 1999-2004. We will make appropriate adjustments to this

component to calculate user fee assessments for later six-year cycles.

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

component for FEMA contract personnel. We have determined an average

biennial exercise-related cost for REP contractors for each commercial

nuclear power plant site in the REP Program. We base this annualized

cost (dividing the average biennial exercise-related cost by two) on

the average costs of contract personnel in REP site-specific exercise-

related activities since the beginning of our user fee program (1991).

We will continue to track and monitor activity during the initial six-

year cycle, FY 1999-2004, and we will make appropriate adjustments to

this component for calculation of user fee assessments during

subsequent six-year cycles.

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

year cycle, we recover the remainder of REP Program budgeted funds as a

flat fee component. Specifically, we determine the flat fee component

by subtracting the total of our personnel and contractor site-specific,

biennial exercise-related components, as outlined in Sec. 354.4 (a) and

(b), from the total REP budget for that fiscal year. We then divide the

resulting amount equally among the total number of licensed commercial

nuclear power plant sites (defined under Sec. 354.2, Scope) to arrive

at each site's flat fee component for that fiscal year.

(e) Discontinuation of charges. When we receive a copy from the NRC

of their

[[Page 69005]]

approved exemption to 10 CFR 50.54(q) requirements stating that offsite

radiological emergency planning and preparedness are no longer required

at a particular commercial nuclear power plant site, we will

discontinue REP Program services at that site. We will no longer assess

a user fee for that site from the beginning of the next fiscal year.

Sec. 354.5 Description of services.

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

FEMA contractors for which FEMA will assess fees on licensees include

the following:

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

component services.

(1) Schedule plume pathway EPZ biennial exercises.

(2) Review plume pathway EPZ biennial exercise objectives and

scenarios.

(3) Provide pre-plume pathway EPZ biennial exercise logistics.

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

post exercise briefings.

(5) Prepare, review and finalize plume pathway EPZ biennial

exercise reports, give notice and conduct 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) Evaluate State and local offsite radiological emergency plans

and preparedness.

(2) Schedule other than plume pathway EPZ biennial exercises.

(3) Develop other than plume pathway EPZ biennial exercise

objectives and scenarios.

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

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

evaluations.

(6) Prepare, review and finalize other than plume pathway EPZ

biennial exercise reports, notice and conduct of public meetings.

(7) Prepare findings and determinations on the adequacy or approval

of plans and preparedness.

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

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

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

(11) Review 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. You may obtain copies

of the NUREG-0654 from the Superintendent of Documents, U.S. Government

Printing Office.

(12) Participate in NRC adjudication 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) Develop regulations, guidance, planning standards and policy.

(20) Coordinate with other Federal agencies to enhance the

preparedness of State and local governments for radiological

emergencies.

(21) Coordinate 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) Implement and coordinate REP Program training with FEMA's

Emergency Management Institute (EMI) to assure effective development

and implementation of REP training courses and conferences.

(23) REP personnel participation 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.

We will send bills that are based on the assessment methodology set

out in Sec. 354.4 to licensees to recover the full amount of the funds

that we budget to provide REP Program services. Licensees that have

more than one site will receive consolidated bills. We will forward one

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

payment due within 30 days. If we exceed our original budget for the

fiscal year and need to make minor adjustments, the adjustment will

appear in the bill for the next fiscal year.

Sec. 354.7 Failure to pay.

Where a licensee fails to pay a prescribed fee required under this

part, we will implement procedures under 44 CFR part 11, Subpart C, to

collect the fees under the Debt Collection Act of 1982 (31 U.S.C. 3711

et seq.).

Dated: December 10, 1998.

James L. Witt,

Director.

[FR Doc. 98-33198 Filed 12-14-98; 8:45 am]

BILLING CODE 6718-06-P