[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