[Federal Register Volume 59, Number 53 (Friday, March 18, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6156]
[[Page Unknown]]
[Federal Register: March 18, 1994]
_______________________________________________________________________
Part IV
Environmental Protection Agency
_______________________________________________________________________
40 CFR Parts 195 and 700
User Fees for Radon Proficiency Programs; Final Rule
ENVIRONMENTAL PROTECTION AGENCY
40 CFR Parts 195 and 700
[FRL-4202-6]
User Fees for Radon Proficiency Programs
AGENCY: Environmental Protection Agency (EPA).
ACTION: Final rule.
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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
