[Federal Register Volume 59, Number 143 (Wednesday, July 27, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-18146]
[[Page Unknown]]
[Federal Register: July 27, 1994]
_______________________________________________________________________
Part V
Federal Emergency Management Agency
_______________________________________________________________________
44 CFR Part 354
Fee for Services To Support FEMA's Offsite Radiological Emergency
Preparedness Program; Proposed Rule
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: Proposed rule.
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SUMMARY: Under its appropriation for fiscal year (FY) 1993 (Pub. L.
102-389), FEMA was authorized 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 provided for the Director of FEMA to
promulgate, through rulemaking, a schedule of fees applicable to
persons subject to FEMA's radiological emergency preparedness
regulations. Public Law 102-389 provided the authority for these user
fees to be assessed and collected for fiscal year 1993 services only.
FEMA's appropriation for FY 1994 (Pub. L. 103-124) continued the user
fee provisions of Public Law 102-389, and FEMA anticipates that the
Congress will provide such authority again in FEMA's appropriation for
FY 1995. If such authority is provided, FEMA proposes to revise its
existing interim rule to change for FY 1995 the methodology used to
assess the user fees. One advantage of the proposed change in
methodology would be the ability to issue user fee bills during the
first quarter of the fiscal year. This proposed rule is being published
at this time in order to publish the resulting revised rule in time to
meet the FY 1995 billing schedule, as well as to notify all potentially
affected parties of this proposed change and to invite and request
comments on the proposed revised methodology.
DATES: Comments from the public on this proposed rule are encouraged
and invited on or before September 12, 1994.
ADDRESSES: Written comments should be addressed to the Rules Docket
Clerk, Office of the General Counsel, Federal Emergency Management
Agency, room 840, 500 C Street, SW., Washington, DC 20472; (facsimile)
(202) 646-4536.
FOR FURTHER INFORMATION CONTACT: Linda H. Vasta, Chief, Regulatory
Services Coordination Unit, Preparedness, Training, and Exercises
Directorate, Federal Emergency Management Agency, 500 C Street, SW.,
Washington, DC 20472, (202) 646-4570.
SUPPLEMENTARY INFORMATION: On March 6, 1991, FEMA published in the
Federal Register (56 FR 9452-9459) the final rule, 44 CFR part 353,
that established a structure for assessing and collecting user fees
from NRC licensees. Under 44 CFR part 353, 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 proposing 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 budgeted 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 applying, 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 budgeted for FEMA's REP Program for FY 1994.
In addition, the Administration has proposed assessing 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 as noticed in the Federal Register
(59 FR 26350) published on May 19, 1994. Although the revised interim
rule would, if authorized by FEMA's FY 1995 appropriation, be
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 this proposed revision of 44 CFR part 354, fees for FY 1995
would be 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. Under Section 354.4, Assessment of Fees,
charges for services would be determined by dividing the total amount
of funds budgeted for the REP Program, i.e., salaries and expenses,
including travel, and Emergency Management Planning and Assistance
(EMPA) funding, by the total number of licensed commercial nuclear
power plant sites benefiting from REP Program services, as defined
under Sec. 354.2, Scope. The total amount of funds budgeted for the REP
Program would be recovered by dividing the funds equally among the NRC
licensees on a per site basis; thus, all sites will be charged the same
flat fee. Under this methodology, site-specific and generic services
would not be distinguished.
Among the comments in response to interim rule 44 CFR part 354
considered by FEMA were those submitted by the Nuclear Management and
Resources Council (NUMARC), which has now become part of the Nuclear
Energy Institute. In its comments, NUMARC recommended a methodology
whereby the hourly rate for FEMA personnel would be determined by
dividing that percentage of the total FEMA Salaries and Expenses budget
item attributable to site-specific activities by the total number of
site-specific hours expended. This hourly rate then would be applied
only to site-specific activities performed by FEMA personnel. Site-
specific activities performed by contractor personnel would be billed
on an actual cost basis. Finally, under the proposed NUMARC
methodology, costs for generic services provided by FEMA personnel and
FEMA contract personnel would be recovered by charging each licensee
equally for these activities.
The methodology recommended by NUMARC was considered by FEMA, but
the flat fee approach is being proposed instead because a flat fee
would: (1) 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)
enable States and licensees to request needed technical assistance
without considering any cost implications associated with site-specific
oriented methodologies; (3) benefit the U.S. taxpayer by earlier
deposit of funds in the U.S. Treasury; and (4) reduce 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 FEMA resources for other REP program
activities.
In addition to the above considerations, FEMA used actual FY 1993
billing data to calculate a flat fee and compared this with the fees
that would have been generated using the methodology proposed by
NUMARC. Using FY 1993 data, the flat fee (for each site) would have
been $149,928. Under the proposed NUMARC methodology, the generic
portion of the bill alone for each site would have been $87,702. The
site-specific portion, consisting of exercise, plan review, and other
site-specific activities, would be added to this amount for the total
bill.
A further comparison of the results of these calculations indicated
that, under the proposed NUMARC methodology, 23 sites would have had
bills equal to or higher than the flat fee, averaging approximately
$90,000 more than the flat fee. Forty-seven sites would have had bills
lower than the flat fee, averaging approximately $42,000 less than the
flat fee. An analysis of the results using the proposed NUMARC
methodology also indicated that the size of a site's bill was, in most
instances, directly related to the biennial exercise cycle; i.e., the
bill was higher if a site had an exercise in FY 1993, and the bill was
lower if a site had not had an exercise in FY 1993. Thus, a majority of
the bills below the flat fee in FY 1993 would be higher than the flat
fee in FY 1994, and vice versa. Over a two-year period the bills would
average out to an amount reasonably close to the flat fee.
Based upon the results of the above calculations, FEMA believes the
flat fee to be fair and equitable because (1) although under the
proposed NUMARC methodology, more bills were below the flat fee than
were above it, those bills lower than the flat fee were, on the
average, considerably closer to the flat fee than were the bills higher
than the flat fee, and (2) the flat fee would eliminate the extreme
year-to-year fluctuation in bill amount due to a site's position in the
exercise cycle, and, thus, each site's bills would be more equitable in
size over any given biennial cycle.
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 proposed rule would be deposited in
the U.S. Treasury to offset funds budgeted for FEMA's REP Program. In
response to a FEMA request for a waiver from the Department of
Treasury's cash management provisions of the Treasury Financial Manual
(TFM), I-TFM 6-8000, Section 8025.10, the Department of the Treasury
granted FEMA a waiver from the I-TFM 6-8000, Section 8025.10,
requirement to bill within five days of service. A waiver was not
granted to allow 45 days for payment of bills by licensees. However, if
the authority for the proposed revised interim rule is enacted, the
Department of the Treasury will grant a one-time exemption to the 30
day payment requirement in order to permit licensees to pay the FY 1995
bill, which would be issued in November 1994, in January of 1995. Also,
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 credit payments. The Department of the Treasury
publication I-TFM 6-8000 has been recently revised 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.
Regulatory Flexibility Act
The Director certifies that this proposed rule would 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 would 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 would not be 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 proposed rule would not be 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 proposed rule would not be a significant regulatory action
under Executive Order 12866 of September 30, 1993, Regulatory Planning
and Review. It would 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 proposed rule would not create a
serious inconsistency or interference with an action taken or planned
by another agency. It would 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 proposed rule
would adhere to the regulatory principles set forth in Executive Order
12866. This proposed rule has not been reviewed under the procedures of
Executive Order 12866.
Paperwork Reduction Act
This proposed rule would not contain collection of information
requirements and would not be 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
powerplants and reactors, Radiation protection, Technical assistance,
Offsite radiological emergency planning and preparedness.
Accordingly, 44 CFR chapter I would be amended by revising part 354
to read as follows:
PART 354--FEE FOR SERVICES TO SUPPORT FEMA'S OFFSITE RADIOLOGICAL
EMERGENCY PREPAREDNESS PROGRAM
Sec.
354.1 Purpose.
354.2 Scope.
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 ____, Pub. L. 104-____ , Stat.
____; EO 12148, 3 CFR, 1979 Comp., p. 412 (50 U.S.C. App. 2251
note); EO 12657, 3 CFR, 1988 Comp., p. 611. [Authority citation to
be inserted if enacted]
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
cost of services provided by the Federal Emergency Management Agency
(FEMA) through its Radiological Emergency Preparedness (REP) Program as
authorized under Title ____, Public Law 104-____, ____ Stat. ____
[Authority citation to be inserted if enacted]. As stipulated by Public
Law 104-____ [Authority citation to be inserted if enacted], 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 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 NRC:
(a) A license to construct, operate or decommission a commercial
nuclear power plant;
(b) A possession-only license for a commercial nuclear power plant;
(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
facilitate offsite radiological emergency planning and preparedness,
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 and preparedness, 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 operate or decommission a commercial nuclear power
plant;
(2) A possession-only license for a commercial nuclear power plant;
(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 the 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) Generic services mean offsite radiological emergency planning,
preparedness, and response services provided by FEMA personnel and by
FEMA contractor personnel that do not pertain to a specific commercial
nuclear power plant site.
(l) Obligate or obligation means a legal reservation of
appropriated funds for expenditure.
Sec. 354.4 Assessment of fees.
Assessment of fees for licensees will be based on the following
methodology that includes, but does not distinguish between, charges
for both site-specific and generic services provided by FEMA personnel
and FEMA contractors. Fees will be assessed 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) Determination of charges for services. Charges for services
will be determined by dividing the total amount of fiscal year funds
budgeted for the REP Program, i.e., salaries and expenses, including
travel, and Emergency Management Planning and Assistance (EMPA)
funding, by the total number of commercial nuclear power plant sites,
as defined under Sec. 354.2, Scope. The total amount of funds budgeted
for the REP Program will be recovered by dividing the funds equally
among the NRC licensees on a per commercial nuclear power plant site
basis; thus, all sites would be charged the same amount. Under this
methodology, site specific and generic services will not be
distinguished.
(b) Discontinuation of Charges. Upon receipt of official written
notification from the NRC 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
and will close out the official docket. Commencing with the next fiscal
year after closing out the official docket, user fees will no longer be
assessed for that site.
Sec. 354.5 Description of services.
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) Evaluation of State and local offsite radiological emergency
plans and preparedness.
(b) Scheduling of exercises.
(c) Development of exercise objectives and scenarios.
(d) Pre-exercise logistics.
(e) Conduct of exercises and evaluations.
(f) Preparing, reviewing and finalizing exercise reports, notice
and conduct of public meetings.
(g) Scheduling, conducting and evaluating remedial exercises,
medical services drills, or other exercises and drills including
participation in meetings and the preparation and review of associated
reports.
(h) Preparation of findings and determinations on the adequacy or
approval of plans and preparedness.
(i) Conduct of the formal 44 CFR part 350 review process.
(j) Providing technical assistance to States and local governments.
(k) Review of licensee submissions pursuant to 44 CFR part 352.
(l) 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 Superintendent of Documents, U.S. Government
Printing Office, P.O. Box 37082, Washington, DC 20013-7082.
(m) Participation in NRC adjudicatory proceedings and any other
site-specific legal forums.
(n) Alert and notification system reviews.
(o) Responses to petitions filed under 10 CFR 2.206.
(p) Disaster-initiated reviews and evaluations.
(q) Congressionally-initiated reviews and evaluations.
(r) Responses to licensee's challenges to FEMA's administration of
the fee program.
(s) Response to actual radiological emergencies.
(t) Development of regulations, guidance, planning standards and
policy.
(u) Coordination with other Federal agencies to enhance the
preparedness of State and local governments for radiological
emergencies.
(v) 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.
(w) 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.
(x) Participation of REP personnel as lecturers or to perform other
functions at EMI, conferences and workshops.
(y) 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. The assessments
for each site and licensee, as stated above, will not distinguish
between site-specific and generic services provided by FEMA personnel
and FEMA contractors. 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.
There will be a one-time adjustment to the billing cycle in the first
quarter of FY 1995 to accommodate a transition to the new methodology.
During this quarter, an adjusted final bill for FY 1994 REP Program
services will be issued along with the bill for all of FY 1995, with a
possible second bill if minor adjustments are necessary. In order to
avoid having the licensees pay two bills during the same fiscal year
(FY 1994) for activities performed in two different fiscal years, FEMA,
with the concurrence of the Department of the Treasury, will structure
the due date of these two bills so that the adjusted bill for FY 1994
will be due and payable by the end of December 1994 and the full bill
for FY 1995 will be due and payable in January of 1995.
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.).
James L. Witt,
Director.
[FR Doc. 94-18146 Filed 7-26-94; 8:45 am]
BILLING CODE 6718-20-P
