[Federal Register Volume 60, Number 57 (Friday, March 24, 1995)]
[Rules and Regulations]
[Pages 15628-15634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6998]
[[Page 15627]]
_______________________________________________________________________
Part II
Federal Emergency Management Agency
_______________________________________________________________________
44 CFR Part 354
Fee for Services To Support FEMA's Offsite Radiological Emergency
Preparedness Program; Final Rule
Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules
and Regulations
[[Page 15628]]
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 354
RIN 3067-AC10
Fee for Services To Support FEMA's Offsite Radiological Emergency
Preparedness Program
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Final rule.
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SUMMARY: This rule establishes the policies and administrative basis
for FEMA to assess fees from the Nuclear Regulatory Commission's (NRC)
licensees to recover the full amount of the appropriated funds
obligated by FEMA to provide services for offsite radiological
emergency planning and preparedness for FY (FY) 1995.
EFFECTIVE DATE: This rule is effective March 24, 1995.
FOR FURTHER INFORMATION CONTACT: Anne Marie T. SuPrise, Chief, State
and Local Regulatory Evaluation and Assessment Branch, Exercises
Division, Preparedness, Training, and Exercises Directorate, Federal
Emergency Management Agency, 500 C Street SW., Washington, DC 20472,
(202) 646-4065.
SUPPLEMENTARY INFORMATION: On March 6, 1991, FEMA published in the
Federal Register (56 FR 9452-9459) a final rule, 44 CFR part 353, that
established a structure for assessing and collecting user fees from NRC
licensees. Under 44 CFR part 353, Radiological Emergency Preparedness
(REP) services provided by FEMA personnel and FEMA contractors were
reimbursable only if these services were site-specific in nature and
directly contributed to the fulfillment of emergency preparedness
requirements needed for licensing by the NRC under the Atomic Energy
Act of 1954, as amended. Although FEMA is publishing a new approach for
the assessment and collection of fees from licensees for FY 1995, part
353 remains in effect and will apply in any subsequent fiscal year for
which FEMA is not authorized to collect user fees for generic services.
Public Law 102-389, October 6, 1992, 106 Stat. 1571-1619, expanded
reimbursable REP Program activities by authorizing FEMA to charge
licensees of commercial nuclear power plants fees to recover the full
amount of the funds anticipated to be obligated for FEMA's REP Program
for FY 1993. On July 1, 1993, FEMA published in the Federal Register
(58 FR 35770-35775) an interim rule, 44 CFR part 354, to establish and
set forth the policies and administrative basis for assessing and
collecting these fees. FEMA reserved the option of reissuing or
amending part 354 for other fiscal years provided that appropriate
authority was enacted. Public Law 103-124, September 23, 1993, 107
Stat. 1297, directed FEMA to continue assessing and collecting fees to
recover the full amount of the funds anticipated to be obligated for
FEMA's REP Program for FY 1994. In addition, the Administration
proposed to assess such fees for subsequent fiscal years.
Using the methodology established by the interim rule, 44 CFR part
354, the final hourly user fee rate for FEMA personnel during FY 1993
was calculated at $122.88. On December 13, 1993, a notice to this
effect was published in the Federal Register (58 FR 65274). The notice
also explained that FEMA would not publish a final rule at that time,
pending a reconsideration of the methodology used for FY 1993, taking
into consideration the comments received on interim rule 44 CFR part
354. The methodology established by the interim rule 44 CFR part 354
was continued in effect for FY 1994 by notice in the Federal Register
(59 FR 26350) published May 19, 1994. Using the methodology established
by the interim rule, the final hourly user fee rate for FEMA personnel
during FY 1994 was calculated at $120.79. On November 28, 1994, a
notice to this effect was published in the Federal Register (59 FR
60792-60793).
On July 27, 1994, FEMA published a proposed rule, 44 CFR part 354,
in the Federal Register (59 FR 38306). This proposed rule, predicated
upon Congress passing the authorizing legislation, would establish fees
for FY 1995 assessed at a flat rate based on fiscal year budgeted funds
for REP Program services performed by FEMA personnel and FEMA
contractors whether or not these services directly support NRC
licensing requirements. Public comments on this proposed rule were
solicited.
Under FEMA's appropriation for FY 1995, Public Law 103-327,
September 28, 1994, 108 Stat 2323-2325, the Congress authorized FEMA to
assess and collect fees from Nuclear Regulatory Commission (NRC)
licensees to recover approximately, but not less than, 100 per centum
of the amounts anticipated by FEMA to be obligated for its Radiological
Emergency Preparedness (REP) Program. This appropriations act further
required the Director of FEMA to promulgate, through rulemaking, a fair
and equitable methodology for the assessment and collection of fees
applicable to persons subject to FEMA's radiological emergency
preparedness regulations. Public Law 103-327 grants authority for these
user fees to be assessed and collected for fiscal year 1995 services
only. Although the final rule 44 CFR part 354 is restricted to FY 1995,
FEMA reserves the option of reissuing or amending part 354 for other
fiscal years provided that appropriate authority is enacted.
Under final rule 44 CFR part 354, fiscal year budgeted funds for
REP Program services performed by FEMA personnel and FEMA contractors
will be recovered whether or not these services directly support NRC
licensing requirements. Fees for FY 1995 will be assessed using a
historically-based methodology in which two components, a site-
specific, biennial exercise-related component and a flat fee component,
are calculated for each site. Final rule 44 CFR part 354 specifies this
historically-based approach to the methodology in lieu of the flat fee
approach described in the proposed rule 44 CFR part 354 published in
the Federal Register on July 27, 1994, based upon the numerous public
comments received in response to the proposed flat fee methodology and
supported by the results of a comparison of different user fee
methodologies using actual data for FYs 1993 and 1994.
The historically-based methodology contains elements of the flat
fee methodology and of the Nuclear Management and Resources Council
(NUMARC), now Nuclear Energy Institute (NEI), methodology, which was
described in the proposed rule 44 CFR part 354. The historically-based
methodology responds to commenters who objected to the flat fee's lack
of site-specific considerations and accountability by factoring in
site-specific information relating to the majority of site-specific
activities, i.e, plume pathway emergency planning zone (EPZ) biennial
REP exercises. At the same time, the historically-based methodology
preserves many of the benefits of a flat fee methodology, specifically:
(1) The ability to provide each licensee with a bill early in the
fiscal year, thus facilitating the licensee's planning and budgeting
process by greatly increasing the predictability of the licensee's
bill; (2) the ability of States and licensees to request needed
technical assistance; (3) the earlier deposit of funds in the U.S.
Treasury, thus benefiting the U.S. taxpayer; and (4) a reduction of the
FEMA resources required to track administrative costs, thus making the
accounting and billing process more efficient and cost-effective for
the Government and freeing up scarce [[Page 15629]] FEMA resources for
other REP Program activities. In addition, the historically-based
methodology provides a compromise approach that ensures fairness and
equitability in the billing.
Under section 354.4, Assessment of Fees, the determination of costs
is divided into three categories: site-specific, biennial exercise-
related FEMA personnel costs; site-specific, biennial exercise-related
FEMA contractor costs; and remaining costs, i.e., the flat fee
component.
FEMA's services primarily are provided in support of a Memorandum
of Understanding (MOU) between the NRC and FEMA published on September
14, 1993 (58 FR 47996), and regulations issued by both FEMA (44 CFR
parts 350, 351, and 352) and the NRC (10 CFR parts 50 and 52).
Radiological emergency response plans and exercises are evaluated
using joint FEMA-NRC criteria, NUREG-0654/FEMA-REP-1, Revision 1 and
Supplement 1. When State and local governments do not participate in
the development of an emergency plan, the licensee may submit a
licensee offsite plan to the NRC. Pursuant to the MOU, the NRC can
request that FEMA review a licensee offsite plan and provide its
assessments and findings on the adequacy of such plans and preparedness
evaluated under Supplement 1.
All funds collected under this rule will revert to the United
States Treasury to offset appropriated funds obligated by FEMA for its
REP Program. The Department of the Treasury requested that the user fee
rule provide for the use of electronic billing and payment mechanisms.
FEMA worked with the Department of the Treasury to effect these
procedures and now provides for payment of bills by electronic
transfers through Automated Clearing House (ACH) credit payments. The
Department of the Treasury recently revised publication I-TFM 6-8000 to
require, under section 8025.30, all funds to be collected by electronic
funds transfer when such collection would be cost-effective,
practicable, and consistent with current statutory authority.
Discussion of Comments on Proposed Rule
In response to FEMA's request for public comments in connection
with the Federal Register publication of the proposed final rule, 44
CFR part 354, FEMA received comments from 80 individuals representing
32 utilities, one Federal agency, one industry association, 33 members
of Congress (some commenting via multi-signatory letters), two State
Governors, eight State emergency management agencies, two public
service commissions and one private citizen.
Comment. A number of utilities, Members of Congress, and State
representatives commented that a methodology, such as NUMARC's proposed
methodology, with a site-specific element is more equitable than the
flat fee and should be adopted.
Discussion. FEMA considered the comments received in support of the
inclusion of site-specific charges in the user fees, balanced against
the many benefits of a methodology that did not require the distinction
between site-specific and generic REP-related activities. FEMA also
used actual FYs 1993 and 1994 data to calculate and analyze the bills
that would have resulted using the current methodology, the flat fee,
the NUMARC proposed methodology, and the historically-based
methodology. The results support the historically-based methodology as
a fair and equitable method for determining user fees. FEMA concluded
that, by changing the flat fee methodology to include a site-specific,
plume pathway EPZ biennial exercise-related component, the methodology
contained in the final rule would be fair and equitable and yet retain
many of the benefits of the flat fee while still responding to the
concerns of proponents of a methodology with a site-specific element.
Response. FEMA has changed the flat fee methodology to one that
includes a site-specific component that factors in plume pathway EPZ
biennial REP exercise-related activities.
Comment. A number of the utilities and some public officials
expressed their strong support of the flat fee methodology, reiterating
the benefits cited in the Supplementary Information section of the
proposed rule. Many supporters also stated that site-specific oriented
methodologies had resulted in disproportionately large fees to some
utilities and that the flat fee remedied this inequity.
Discussion. FEMA considered comments submitted in support of the
flat fee and concluded that the historically-based methodology
contained in the final rule preserves many of the benefits cited by
proponents of the flat fee while responding to the concerns expressed
by commenters who opposed the flat fee.
Response. The final rule changes the methodology from a flat fee
approach to a methodology that has a flat component and a historically-
based, site-specific component reflecting plume pathway EPZ biennial
exercise activities.
Comment. Several utilities commented that the user fee rule covers
services whether or not they directly support NRC commercial nuclear
power plant licensing requirements and stated that utilities should not
be charged for services that fall outside the area of nuclear
regulation, including Department of Defense (DOD) and Department of
Energy (DOE) facilities, as well as other NRC licensed facilities.
Discussion. The FEMA/NRC Memorandum of Understanding allows the NRC
to request FEMA REP Program support, as necessary, for NRC licensees
other than those for commercial nuclear power plants. Since the
potential exists for the NRC to request such REP Program support for
other licensees, the rule is not limited to 10 CFR part 50 licensees.
At this time, however, FEMA is assessing fees only for licensees of
commercial nuclear power plants, since activities involving other
licensees have been very limited or non-existent and are expected to
remain so and the NRC has not requested FEMA assessment and findings on
the adequacy of offsite planning and preparedness for these licensees.
With respect to DOD and DOE facilities, 44 CFR part 354 applies only to
NRC licensed facilities, not to DOE and DOD facilities.
Response. No change is necessary because current language in this
rule is not limited to 10 CFR part 50 NRC commercial nuclear power
plant licensees and is not intended to be so limited.
Comment. Several utilities and many Members of Congress and State
officials commented that the flat fee is not fair and equitable since
it does not reflect the actual costs incurred or expended on the
beneficiary and because it increases some fees without an increase in
service.
Discussion. The methodology specified in final rule 44 CFR part 354
contains a site-specific exercise component, which does reflect actual
costs historically expended on the beneficiary. Since exercise
activities constitute the majority of site-specific REP activities, if
services in support of site-specific exercise activities were to
increase or decrease, that change would be reflected in future user
fees for that site.
Response. Changes made to the rule respond to the intent of the
comment.
Comment. Many utilities, Members of Congress, and State officials
commented that the flat fee is charged to all plants regardless of
size, population density of the surrounding area, or number of
governmental jurisdictions and that this places an unfair share of the
cost of FEMA services on the customers of [[Page 15630]] utilities in
less urban areas and areas with fewer governmental jurisdictions.
Discussion. The methodology specified in the final user fee rule
includes a site-specific exercises component. Since site-specific
exercises reflect differences in EPZ populations and number of
jurisdictions, and since exercises represent the majority of site-
specific REP Program activities, the methodology specified in final
rule 44 CFR part 354 does account for these factors.
Response. The change from a flat fee methodology to a methodology
that includes a site-specific exercise component responds to this
comment.
Comment. One utility commented that sections 354.2(a) and
354.3(d)(1) refer to a ``license to decommission'' a commercial nuclear
power plant. Since such an NRC license does not exist, references to
this license should be deleted.
Discussion. FEMA agrees with this comment.
Response. References to a ``license to decommission'' have been
deleted from sections 354.2(a) and 354.3(d)(1).
Comment. One utility commented that sections 354.2(b) and
354.3(d)(2) should be clarified to limit the regulation's applicability
to only those possession-only licensees that have neither requested nor
received an exemption from NRC 10 CFR 50.54(q) requirements concerning
offsite radiological emergency response planning.
Discussion. It is appropriate to exclude possession-only licensees
that have received an exemption from offsite radiological emergency
response planning. However, it would be inappropriate to exclude
possession-only licensees that have requested, but not yet received,
this exemption.
Response. The phrase ``with the exception of licensees that have
received an NRC-approved exemption to 10 CFR 50.54(q) requirements''
has been added to sections 354.2(b) and 354.3(d)(2).
Comment. One utility commented that section 354.4(b), now section
354.4(e), should be revised to clarify the reference to FEMA closing
out the ``official docket,'' since there is no formal mechanism for
officially closing out the FEMA docket for a plant. Suggested
replacement language includes the phrase ``Commencing from the date of
receipt, user fees will no longer be assessed for that site.''
Discussion. The reference to a FEMA official docket has been
deleted. The substitute language suggested by the commenter is
acceptable, with the exception of the phrase ``from the date of
receipt.'' Since the user fees for a particular fiscal year will not be
prorated to cover just a portion of that year, the assessment of user
fees for the discontinued plant would cease at the end of the fiscal
year in which the plant was exempted by the NRC.
Response. The following language was added to section 354.4(e):
``Upon receipt of a copy from the NRC of the NRC-approved exemption to
10 CFR 50.54(q) requirements stating that offsite radiological
emergency planning and preparedness is no longer required at a
particular commercial nuclear power plant site, FEMA will discontinue
REP Program services. Commencing at the beginning of the next fiscal
year, a user fee will no longer be assessed for that site.''
Comment. One utility commented that FEMA should consider future
changes to the regulation that would reduce or remove generic costs
associated with REP Program activities (such as program administration,
policy and guidance development, research, etc.) from the fee base,
since these costs are associated with the broader societal benefits of
the REP Program and benefit the State and local governments as well as
the licensees.
Discussion. These generic activities are carried out specifically
to support the offsite activities of the NRC's licensing requirements
that govern the commercial nuclear power plants. Therefore, despite a
possible broader benefit, it is appropriate for the nuclear power plant
utilities to be charged for REP Program generic activities.
Response. No change.
Comment. One utility commented that requiring utilities to pay the
user fee in the month of December (beginning after FY 1995) places an
undue hardship on most utilities. It recommended that bills be sent out
in December with payment allowed in December or January.
Discussion. Inasmuch as possible, FEMA intends to send out the user
fee bills in December of the applicable fiscal year for payment in
either December or January, in order to provide more payment
flexibility to the licensees.
Response. FEMA will, to the extent possible, send out the user fee
bills in December of the applicable fiscal year.
Comment. Several utilities commented that the flat fee places an
unfair burden on those utilities that have invested in and worked
closely with State and local offsite radiological emergency response
organizations to establish highly effective programs that require
minimal FEMA interaction to monitor and assess.
Discussion. The proposed flat fee methodology has been changed to
the historically-based methodology that factors in a site-specific,
plume pathway EPZ biennial exercise component. This methodology does
recognize State and local organizations' efficiencies in REP planning
and preparedness insofar as many of these efficiencies are reflected in
site-specific, plume pathway EPZ biennial exercise activities.
Response. The change from a flat fee methodology to a methodology
that includes a site-specific, plume pathway EPZ biennial exercise
component responds to this comment.
Comment. A number of utilities, Members of Congress, State
representatives, and the industry organization commented that the
recovery of budgeted funds prior to expenditure and the use of a
methodology that does not take site-specific activities into
consideration fails to provide accountability and the desire to
maximize the efficient use of resources, e.g., evaluators.
Discussion. The addition of the site-specific exercise component
allows for exercise costs, including costs for exercise evaluators, to
be factored in based on historical costs. FEMA's desire to maximize the
efficient use of REP Program resources is based primarily on the
necessity of protecting the health and safety of FEMA's ultimate
customers, i.e., the State and local governments and the people they
represent, not upon accountability to the licensees.
Response. The change from a flat fee methodology to a methodology
that includes a site-specific component responds to this comment.
Comment. Two utilities and a private citizen commented that it is
unfair and inequitable for FEMA to recover any of the REP budget from
commercial nuclear utilities; these costs should be paid from tax
revenues.
Discussion. The requirement to recover the REP Program budget costs
from the program's beneficiaries is not a FEMA requirement, but rather
a Congressional mandate. The rule implements Title V of the Independent
Offices Appropriations Act of 1952, 31 U.S.C. 9701, which authorizes
FEMA to recover to the fullest extent possible costs attributable to
services to identifiable recipients. FEMA's appropriation acts for FYs
1993, 1994, and 1995 direct FEMA to publish the specific methodology to
be employed to recover these costs.
Response. No change.
Comment. Two utilities commented that as plants are decommissioned,
the flat fee would continually increase for [[Page 15631]] the
remaining sites with operational REP activities.
Discussion. The final rule does not contain the flat fee
methodology but, instead, provides a historically-based methodology
that includes charges site-specific for plume pathway EPZ biennial REP
exercises. However, the historically-based methodology does contain a
flat component reflecting activities not related to plume pathway EPZ
biennial exercises. As plants are decommissioned, this component will
increase, although not to the same extent as it would have under the
flat fee. It should be noted that, regardless of the number of plants,
the activities carried out under the flat component must still be
maintained at the same level. This would also have been the case had
the NUMARC methodology been adopted. Notwithstanding the above,
allowance is made in the methodology for periodic adjustments to the
fees as necessary.
Response. No change, other than the change to a historically-based
methodology.
Comment. One utility commented that FEMA should be required to
provide greater detail on the nature of costs categorized as generic
and questioned why the ratio of generic to site-specific is so high.
Discussion. Under the historically-based methodology, generic
activities are billed under the flat, or non-biennial exercise-related
component. Generic costs cover a number of important REP Program
activities, including policy and guidance development, research, public
education, staff training, and general program administration, which
must be maintained for and have equal benefit to all licensees.
Response. No change.
Comment. One utility commented that it will not be served by FEMA's
one-time adjustment to the billing cycle since the utility's fiscal
year runs from October 1 to September 30. The billing option should be
more flexible.
Discussion. This utility's situation is unique, since it is a
governmental entity and operates on the Government's fiscal year
schedule. Due to the structure of the interim rule methodology, the FY
1994 final bills could not be calculated before the end of FY 1994,
and, thus, this utility will experience a one-time situation where one-
half of its FY 1994 bill and its entire FY 1995 bill will be due during
the Government's FY 1995. Since the FY 1995 bills will be sent out in
April 1995, a one-time adjustment to the billing cycle will not be
necessary in order to allow the other utilities to pay their bill in
their FY 1995, i.e., calendar year 1995.
Response. No change.
Comment. One utility agreed that generic costs incurred by FEMA can
and should be divided equally among the NRC licensees on a per site
basis. However, the utility commented, because site-specific costs vary
widely by utility and in accordance with the nature of any given plant
exercise, the fees cannot be accurately predicted and there is no
demonstrated need to collect them in advance.
Discussion. Since the flat fee methodology has been changed to a
methodology that includes a site-specific exercise component based upon
historical exercise-related costs, the site-specific component is known
at the beginning of the fiscal year. The remaining component is the sum
of the site-specific components subtracted from the total REP budget;
thus the entire user fee for each site can be known at the beginning of
the fiscal year.
Response. The change from a flat fee methodology to a methodology
that includes a site-specific component responds to this comment.
Comment. One utility commented that with regard to earlier deposit
of funds in the U.S. Treasury, FEMA can adopt regulations that require
NRC licensees to prepay REP fees based on historical site-specific
costs and shared generic costs.
Discussion. The final rule does contain a site-specific component
based upon historical biennial exercise-related costs and the remaining
costs are shared equally among the licensees.
Response. The change from a flat fee methodology to a methodology
that includes a historically-based, site-specific exercise component
responds to this comment.
Comment. One utility commented that if FEMA wants to adopt a
levelized fee structure over the two-year cycles, the following method
may be used: Allow low-cost operations to pay one flat fee each year
while high-cost operations would be required to pay a much higher flat
fee each year. In alternating years, FEMA would undercollect based on
services provided and in other years FEMA would overcollect from the
same licensees, based on actual services rendered.
Discussion. The methodology contained in the final rule includes a
historically-based, site-specific, exercise-related component that will
result in a relatively level fee structure over the two-year cycles.
Response. The change from a flat fee methodology to a methodology
that includes a site-specific component responds to the intent of this
comment.
Comment. Several utilities commented that the ability, under the
flat fee, of the States and licensees to request technical assistance
without the concern of additional fee assessment is not a strong
advantage since it could lead to organizations constantly requesting
technical assistance when it is not needed.
Discussion. The historically-based methodology will still permit
the States and licensees to request needed technical assistance without
penalty. However, requests for technical assistance will not increase
the total REP Program budget and, therefore, will not adversely affect
States and licensees with a lesser need for technical assistance.
Response. No change.
Comment. Two utilities commented that if FEMA's administrative
costs for accounting and billing purposes are reduced, FEMA should
delete these costs and positions from the budget, rather than
reallocating the resources since utilities are reducing their staffs
and FEMA should do so too.
Discussion. The FEMA REP staff funded by the S&E portion of FEMA's
REP budget has already been reduced. The remaining staff members are
needed to ensure that all of FEMA's REP Program responsibilities are
adequately addressed and that public health and safety is ensured.
Response. No change.
Comment. The industry association commented that a site that has
received an early site permit (ESP) should not be included in the fee
base because, unlike sites with plants, it does not require ongoing
FEMA services but, rather, a one-time review by FEMA. The ESP holder
may ``bank'' the site for possible future use; thus, the plant may be
built in the future or may never be built.
Discussion. In the future there may be sites that have applied for
and/or received ESPs. The precise extent to which such plants will
require REP Program services is not known at this time, so this
language must remain in the final rule in order to address any possible
contingencies.
Response. No change.
Comment. The industry association commented that Combined Operating
License (COL) holders should not be included in the base until such
time as they require FEMA services, i.e., some years into the
construction process. Also, the association recommended that the rule
specifically exclude COLs for advanced plants built on current plant
sites for which emergency preparedness plans already exist.
Discussion. In the future there may be sites that have applied for
and/or [[Page 15632]] received COLs. The precise extent to which such
plants will require REP Program services is not known at this time, so
this language must remain in the final rule in order to address any
possible contingencies.
Response. No change.
Comment. Several utilities commented that, regardless of the fee
collection methodology, FEMA should be required to continually evaluate
the high cost of contractor labor and eliminate its use whenever
possible, particularly in Medical Services drills. State and local
emergency management personnel should be considered for use as exercise
evaluators, especially if they hold the proper credentials.
Discussion. FEMA does evaluate the use of contractor labor in an
effort to allocate the use of its contractors as efficiently as
possible. However, contractor support services are critical to the
successful implementation of the REP Program primarily because of the
cyclical demands for qualified REP exercise evaluators. It would not be
cost effective to hire FEMA employees in order to respond to cyclical,
fluctuating demands. Also, with the current emphasis on the reduction
of Federal employees, it is unlikely that FEMA would be authorized the
additional staff necessary to replace contractor support. FEMA has
explored the possibility of the use of State and local emergency
management personnel as exercise evaluators; however, FEMA's General
Counsel has determined that, since a REP exercise is a regulatory
exercise used for credit for obtaining and maintaining a license, State
and local personnel cannot be used as evaluators.
Response. No change.
Comment. Two utilities commenting in opposition to the flat fee
stated that the funding mechanism should not be primarily intended to
levelize budget expenses over the two-year exercise cycle, thereby
increasing the predictability of a licensee's bill.
Discussion. Many licensees consider the predictability of their
user fee bills to be extremely useful for planning and budgeting
purposes and would argue that the levelizing of budget expenses over
the two-year exercise cycle and a resulting increase in the
predictability of the licensees' bills should be a goal of the user fee
methodology. The historically-based methodology accommodates these
licensees' need for levelizing and predictability of bills while
addressing some of the other drawbacks of a flat fee expressed by its
opponents.
Response. The change to a historically-based methodology with a
site-specific exercise component preserves the predictability of the
licensees' bill amounts while responding to the concerns of opponents
of the flat fee.
Comment. One utility commented that the rule states that fees for
FEMA personnel and contractors will be assessed as part of the REP
budget whether or not the personnel services support NRC licensed
plants. In this situation, a FEMA REP staffer or contractor could be
sent to respond to a natural disaster and the REP Program budget would
be charged.
Discussion. REP Program contractors would not be funded to respond
to a natural disaster. FEMA did conduct a study that compared the
amount of time that FEMA REP Program staff spent on non-REP activities
with the amount of time spent by FEMA non-REP Program staff on REP
Program activities. The results indicated that there was a ``wash,''
i.e., the amount of time involved was approximately the same.
Response. No change.
Regulatory Flexibility Act. The Director certifies that this final
rule will not have a significant economic impact on a substantial
number of small entities in accordance with the Regulatory Flexibility
Act, 5 U.S.C. 601 et seq., because the rule does not apply to a
substantial number of small entities as defined by the Small Business
Size Standards, 13 CFR 121.601, Division E, Major Group 49, as amended,
57 FR 62520, December 31, 1992, and is not expected (1) to have
significant secondary or incidental effects on a substantial number of
small entities, nor (2) to create any additional burden on a
substantial number of small entities.
National Environmental Policy Act. The Director has determined
under the National Environmental Policy Act of 1969 and FEMA
Regulation, 44 CFR part 10, Environmental Considerations, that this
final rule is not a major Federal action significantly affecting the
quality of the human environment. Therefore, an environmental impact
statement is not required.
Executive Order 12866, Regulatory Planning and Review. This final
rule is not a significant regulatory action under Executive Order 12866
of September 30, 1993, Regulatory Planning and Review. It will not have
an annual effect on the economy of $100 million or more or adversely
affect in a material way the economy, a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or State, local, or tribal governments or communities. The
final rule does not create a serious inconsistency or interference with
an action taken or planned by another agency. It does not materially
alter the impact of entitlements, grants, or loan programs, nor would
it raise novel legal or policy issues. To the greatest extent possible
the final rule adheres to the regulatory principles set forth in
Executive Order 12866. This final rule has not been reviewed by the
Office of Management and Budget under the procedures of Executive Order
12866.
Paperwork Reduction Act. This final rule does not contain
collection of information requirements and is not subject to the
Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et seq.).
Executive Order 12612, Federalism. A Federalism assessment under
E.O. 12612 has been prepared and a copy is available for inspection and
copying for a fee from the Rules Docket Clerk, address noted above.
List of Subjects in 44 CFR Part 354
Disaster assistance, Intergovernmental relations, Nuclear power
plants and reactors, Radiation protection, and Technical assistance.
Accordingly, 44 CFR part 354 is revised to read as follows:
PART 354--FEE FOR SERVICES TO SUPPORT FEMA'S OFFSITE RADIOLOGICAL
EMERGENCY PREPAREDNESS PROGRAM
Sec.
354.1 Purpose.
354.2 Scope.
354.3 Definitions.
354.4 Assessment of fees.
354.5 Description of services.
354.6 Billing and payment of fees.
354.7 Failure to pay.
Authority: Sec. 109, Pub. L. 96-295, 94 Stat. 780; Sec. 2901,
Pub. L. 98-369, 98 Stat. 494; Title III, Pub. L. 103-327, 108 Stat.
2323-2325; EO 12148, 3 CFR, 1979 Comp., p. 412 (50 U.S.C. App. 2251
note); EO 12657, 3 CFR, 1988 Comp., p. 611.
Sec. 354.1 Purpose.
This part establishes the methodology for FEMA to assess and
collect user fees from Nuclear Regulatory Commission (NRC) licensees of
commercial nuclear power plants to recover at least 100 percent of the
amounts anticipated by FEMA to be obligated for its Radiological
Emergency Preparedness (REP) Program as authorized under Title III,
Public Law 103-327, 108 Stat. 2323-2325. As stipulated by Public Law
103-327, the methodology for assessment and collection of fees shall be
fair and equitable, and shall reflect the full amount of costs of
providing radiological emergency planning, preparedness, response and
associated services. Such fees will be assessed in [[Page 15633]] a
manner that reflects the use of agency resources for classes of
regulated persons and the administrative costs of collecting such fees.
Fees received pursuant to this section shall be deposited in the
general fund of the Treasury as offsetting receipts. Assessment and
collection of such fees are only authorized during fiscal year (FY)
1995.
Sec. 354.2 Scope.
The regulation in this part applies to all persons or licensees who
have applied for or have received from the NRC:
(a) A license to construct or operate a commercial nuclear power
plant;
(b) A possession-only license for a commercial nuclear power plant,
with the exception of licensees that have received an NRC-approved
exemption to 10 CFR 50.54(q) requirements;
(c) An early site permit for a commercial nuclear power plant;
(d) A combined construction permit and operating license for a
commercial nuclear power plant; or
(e) Any other NRC licensee that is now or may become subject to
requirements for offsite radiological emergency planning and
preparedness.
Sec. 354.3 Definitions.
As used in this part, the following terms and concepts are defined:
(a) FEMA means the Federal Emergency Management Agency.
(b) NRC means the U. S. Nuclear Regulatory Commission.
(c) Technical assistance means services provided by FEMA to
accomplish offsite radiological emergency planning, preparedness and
response, including but not limited to, provision of support for the
preparation of offsite radiological emergency response plans and
procedures, and provision of advice and recommendations for specific
aspects of radiological emergency planning, preparedness and response,
such as alert and notification and emergency public information.
(d) Persons or Licensee means the utility or organization that has
applied for or has received from the NRC:
(1) A license to construct or operate a commercial nuclear power
plant;
(2) A possession-only license for a commercial nuclear power plant,
with the exception of licensees that have received an NRC-approved
exemption to 10 CFR 50.54(q) requirements;
(3) An early site permit for a commercial nuclear power plant;
(4) A combined construction permit and operating license for a
commercial nuclear power plant; or
(5) Any other NRC license that is now or may become subject to
requirements for offsite radiological emergency planning and
preparedness activities.
(e) RAC means Regional Assistance Committee chaired by FEMA with
representatives from the Nuclear Regulatory Commission, Environmental
Protection Agency, Department of Health and Human Services, Department
of Energy, Department of Agriculture, Department of Transportation,
Department of Commerce, Department of Interior, and other Federal
departments and agencies as appropriate.
(f) REP means Radiological Emergency Preparedness as in FEMA's REP
Program.
(g) Fiscal Year means the Federal fiscal year commencing on the
first day of October through the thirtieth day of September.
(h) Federal Radiological Preparedness Coordinating Committee
(FRPCC) means a committee chaired by FEMA with representatives from the
Nuclear Regulatory Commission, Environmental Protection Agency,
Department of Health and Human Services, Department of Interior,
Department of Energy, Department of Transportation, Department of
Agriculture, Department of Commerce, Department of State, Department of
Veterans Affairs, General Services Administration, National
Communications System, the National Aeronautics and Space
Administration and other Federal departments and agencies as
appropriate.
(i) Site means the location at which one or more commercial nuclear
power plants (reactor units) have been, or are planned to be,
constructed.
(j) Site-specific services mean offsite radiological emergency
planning, preparedness and response services provided by FEMA personnel
and by FEMA contractors that pertain to a specific commercial nuclear
power plant site.
(k) EPZ means emergency planning zone.
(l) Plume pathway EPZ means for planning purposes, the area within
approximately a 10-mile radius of a nuclear plant site.
(m) Biennial exercise means the joint licensee/State and local
government exercise, evaluated by FEMA, conducted around a commercial
nuclear power plant site once every two years in conformance with 44
CFR part 350.
(n) Obligate or obligation means a legal reservation of
appropriated funds for expenditure.
Sec. 354.4 Assessment of fees.
Assessment of user fees from licensees is based on a methodology
that includes charges for REP Program services provided by both FEMA
personnel and FEMA contractors. Beginning with FY 1995, a four year
cycle is established with predetermined user fee assessments which will
be collected each year of the cycle. The assessments will initially be
at the level indicated in the FY 1995 bills and, as described in
paragraphs (b) and (d) of this section, for the remainder of the four
year cycle, as authorized. The initial four year cycle will run from FY
1995-1998. The following four year cycle will run from FY 1999-2003.
Fees will be assessed only for REP Program services provided by FEMA
personnel and by FEMA contractors and not for those services provided
by other Federal agencies involved in the FRPCC or the RACs.
(a) Description of fee components. The fee for each site consists
of two distinct components:
(1) A site-specific, biennial exercise-related component to recover
the portion of the REP program budget associated only with plume
pathway emergency planning zone (EPZ) biennial exercise-related
activities.
(2) A flat fee component that is the same for each site and
recovers the remaining portion of the REP Program budgeted funding
which does not include biennial exercise-related activities.
(b) Determination of site-specific, biennial exercise-related
component for FEMA personnel. An average biennial exercise-related cost
for FEMA personnel has been determined for each commercial nuclear
power plant site in the REP Program. This cost, which has been
annualized (dividing the average biennial exercise-related cost by
two), is based on the average number of hours expended by FEMA
personnel in REP exercise-related activities for each site. The average
number of hours has been determined based on an analysis of site-
specific exercise activity expended since the inception of FEMA's user
fee program (1991). The actual user fee assessment for this component
is determined by multiplying the average number of REP exercise-related
hours, which has been determined and annualized for each site, by the
average hourly rate for a REP Program employee in effect for the fiscal
year. In FY 1995, the hourly rate has been determined to be $29.34 by
the Chief Financial Officer of FEMA. The hourly rate will be revised
annually to reflect actual budget and cost of living factors, but the
number of site-specific exercise hours, [[Page 15634]] as annualized,
will remain constant for user fee calculations and assessments
throughout the four year cycle, e.g., FY 1995-1998. Exercise activity
will continue to be tracked and monitored during the initial and
subsequent four year cycles. Appropriate adjustments will be made to
this component for calculation of user fee assessments during
subsequent four year cycles.
(c) Determination of site-specific, biennial exercise-related
component for FEMA contract personnel. An average biennial exercise-
related cost for REP contractors has been determined for each
commercial nuclear power plant site in the REP Program. This cost,
which has been annualized (dividing the average biennial exercise-
related cost by two), is based on the average costs of contract
personnel in REP site-specific exercise-related activities since the
inception of FEMA's user fee program (1991). Exercise activity will
continue to be tracked and monitored during the initial and subsequent
four year cycles. Appropriate adjustments will be made to this
component for calculation of user fee assessments during subsequent
four year cycles.
(d) Determination of flat fee component. For each year of the four
year cycle, the remainder of REP Program budgeted funds is recovered as
a flat fee component. Specifically, the flat fee component is
determined by subtracting the total of the FEMA personnel and
contractor site-specific, biennial exercise-related components, as
outlined in paragraphs (b) and (c) of this section, from the total REP
budget for that fiscal year. The resulting amount is equally divided
among the total number of licensed commercial nuclear power plant sites
as defined under Sec. 354.2, Scope, to arrive at each site's flat fee
component for that fiscal year.
(e) Discontinuation of Charges. Upon receipt of a copy from the NRC
of the NRC-approved exemption to 10 CFR 50.54(q) requirements stating
that offsite radiological emergency planning and preparedness is no
longer required at a particular commercial nuclear power plant site,
FEMA will discontinue REP Program services. Commencing at the beginning
of the next fiscal year, a user fee will no longer be assessed for that
site.
Sec. 354.5 Description of services.
Site-specific and other REP Program services provided by FEMA and
FEMA contractors for which licensees would be assessed fees include,
but are not limited to, the following:
(a) Site-specific, plume pathway EPZ biennial exercise-related
component services. (1) Scheduling of plume pathway EPZ biennial
exercises.
(2) Review of plume pathway EPZ biennial exercise objectives and
scenarios.
(3) Pre-plume pathway EPZ biennial exercise logistics.
(4) Conduct of plume pathway EPZ biennial exercises, evaluations,
and post exercise briefings.
(5) Preparing, reviewing and finalizing plume pathway EPZ biennial
exercise reports, notice and conduct of public meetings.
(6) Activities related to Medical Services and other drills
conducted in support of a biennial, plume pathway exercise.
(b) Flat fee component services. (1) Evaluation of State and local
offsite radiological emergency plans and preparedness.
(2) Scheduling of other than plume pathway EPZ biennial exercises.
(3) Development of other than plume pathway EPZ biennial exercise
objectives and scenarios.
(4) Pre-other than plume pathway EPZ biennial exercise logistics.
(5) Conduct of other than plume pathway EPZ biennial exercises and
evaluations.
(6) Preparing, reviewing and finalizing other than plume pathway
EPZ biennial exercise reports, notice and conduct of public meetings.
(7) Preparation of findings and determinations on the adequacy or
approval of plans and preparedness.
(8) Conduct of the formal 44 CFR part 350 review process.
(9) Providing technical assistance to States and local governments.
(10) Review of licensee submissions pursuant to 44 CFR part 352.
(11) Review of NRC licensee offsite plan submissions under the NRC/
FEMA Memorandum of Understanding on Planning and Preparedness, and
NUREG-0654/FEMA-REP-1, Revision 1, Supplement 1. Copies of the NUREG-
0654 may be obtained from the Superintendent of Documents, P.O. Box
371954, Pittsburgh, PA 15250-7954.
(12) Participation in NRC adjudicatory proceedings and any other
site-specific legal forums.
(13) Alert and notification system reviews.
(14) Responses to petitions filed under 10 CFR 2.206.
(15) Disaster-initiated reviews and evaluations.
(16) Congressionally-initiated reviews and evaluations.
(17) Responses to licensee's challenges to FEMA's administration of
the fee program.
(18) Response to actual radiological emergencies.
(19) Development of regulations, guidance, planning standards and
policy.
(20) Coordination with other Federal agencies to enhance the
preparedness of State and local governments for radiological
emergencies.
(21) Coordination of REP Program issues with constituent
organizations such as the National Emergency Management Association,
Conference of Radiation Control Program Directors, and the Nuclear
Energy Institute.
(22) Implementation and coordination of REP Program training with
FEMA's Emergency Management Institute (EMI) to assure effective
development and implementation of REP training courses and conferences.
(23) Participation of REP personnel as lecturers or to perform
other functions at EMI, conferences and workshops.
(24) Services associated with the assessment of fees, billing, and
administration of this part.
Sec. 354.6 Billing and payment of fees.
FEMA will forward bills to licensees based on the assessment
methodology set forth in Sec. 354.4 to recover the full amount of the
funds budgeted by FEMA to provide REP Program services. Licensees with
multiple sites will receive consolidated bills. FEMA will forward one
bill to each licensee during the first quarter of the fiscal year, with
payment due within 30 days. If minor adjustments are necessary due to
FEMA exceeding its original budget for the fiscal year, the adjustment
will appear in the bill for the subsequent fiscal year.
Sec. 354.7 Failure to pay.
In any case where FEMA believes that a licensee has failed to pay a
prescribed fee required under this part, procedures will be implemented
in accordance with 44 CFR part 11, subpart C, to effectuate collections
under the Debt Collection Act of 1982 (31 U.S.C. 3711 et seq.).
Dated: March 16, 1995.
James L. Witt,
Director.
[FR Doc. 95-6998 Filed 3-23-95; 8:45 am]
BILLING CODE 6718-20-P
