[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]


  
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Part IV





Environmental Protection Agency





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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