[Federal Register Volume 60, Number 57 (Friday, March 24, 1995)]
[Rules and Regulations]
[Pages 15628-15634]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6998]




[[Page 15627]]

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Part II





Federal Emergency Management Agency





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44 CFR Part 354



Fee for Services To Support FEMA's Offsite Radiological Emergency 
Preparedness Program; Final Rule

  Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules 
and Regulations   
[[Page 15628]] 

FEDERAL EMERGENCY MANAGEMENT AGENCY

44 CFR Part 354

RIN 3067-AC10


Fee for Services To Support FEMA's Offsite Radiological Emergency 
Preparedness Program

AGENCY: Federal Emergency Management Agency (FEMA).

ACTION: Final rule.

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SUMMARY: This rule establishes the policies and administrative basis 
for FEMA to assess fees from the Nuclear Regulatory Commission's (NRC) 
licensees to recover the full amount of the appropriated funds 
obligated by FEMA to provide services for offsite radiological 
emergency planning and preparedness for FY (FY) 1995.

EFFECTIVE DATE: This rule is effective March 24, 1995.

FOR FURTHER INFORMATION CONTACT: Anne Marie T. SuPrise, Chief, State 
and Local Regulatory Evaluation and Assessment Branch, Exercises 
Division, Preparedness, Training, and Exercises Directorate, Federal 
Emergency Management Agency, 500 C Street SW., Washington, DC 20472, 
(202) 646-4065.

SUPPLEMENTARY INFORMATION: On March 6, 1991, FEMA published in the 
Federal Register (56 FR 9452-9459) a final rule, 44 CFR part 353, that 
established a structure for assessing and collecting user fees from NRC 
licensees. Under 44 CFR part 353, Radiological Emergency Preparedness 
(REP) services provided by FEMA personnel and FEMA contractors were 
reimbursable only if these services were site-specific in nature and 
directly contributed to the fulfillment of emergency preparedness 
requirements needed for licensing by the NRC under the Atomic Energy 
Act of 1954, as amended. Although FEMA is publishing a new approach for 
the assessment and collection of fees from licensees for FY 1995, part 
353 remains in effect and will apply in any subsequent fiscal year for 
which FEMA is not authorized to collect user fees for generic services.
    Public Law 102-389, October 6, 1992, 106 Stat. 1571-1619, expanded 
reimbursable REP Program activities by authorizing FEMA to charge 
licensees of commercial nuclear power plants fees to recover the full 
amount of the funds anticipated to be obligated for FEMA's REP Program 
for FY 1993. On July 1, 1993, FEMA published in the Federal Register 
(58 FR 35770-35775) an interim rule, 44 CFR part 354, to establish and 
set forth the policies and administrative basis for assessing and 
collecting these fees. FEMA reserved the option of reissuing or 
amending part 354 for other fiscal years provided that appropriate 
authority was enacted. Public Law 103-124, September 23, 1993, 107 
Stat. 1297, directed FEMA to continue assessing and collecting fees to 
recover the full amount of the funds anticipated to be obligated for 
FEMA's REP Program for FY 1994. In addition, the Administration 
proposed to assess such fees for subsequent fiscal years.
    Using the methodology established by the interim rule, 44 CFR part 
354, the final hourly user fee rate for FEMA personnel during FY 1993 
was calculated at $122.88. On December 13, 1993, a notice to this 
effect was published in the Federal Register (58 FR 65274). The notice 
also explained that FEMA would not publish a final rule at that time, 
pending a reconsideration of the methodology used for FY 1993, taking 
into consideration the comments received on interim rule 44 CFR part 
354. The methodology established by the interim rule 44 CFR part 354 
was continued in effect for FY 1994 by notice in the Federal Register 
(59 FR 26350) published May 19, 1994. Using the methodology established 
by the interim rule, the final hourly user fee rate for FEMA personnel 
during FY 1994 was calculated at $120.79. On November 28, 1994, a 
notice to this effect was published in the Federal Register (59 FR 
60792-60793).
    On July 27, 1994, FEMA published a proposed rule, 44 CFR part 354, 
in the Federal Register (59 FR 38306). This proposed rule, predicated 
upon Congress passing the authorizing legislation, would establish fees 
for FY 1995 assessed at a flat rate based on fiscal year budgeted funds 
for REP Program services performed by FEMA personnel and FEMA 
contractors whether or not these services directly support NRC 
licensing requirements. Public comments on this proposed rule were 
solicited.
    Under FEMA's appropriation for FY 1995, Public Law 103-327, 
September 28, 1994, 108 Stat 2323-2325, the Congress authorized FEMA to 
assess and collect fees from Nuclear Regulatory Commission (NRC) 
licensees to recover approximately, but not less than, 100 per centum 
of the amounts anticipated by FEMA to be obligated for its Radiological 
Emergency Preparedness (REP) Program. This appropriations act further 
required the Director of FEMA to promulgate, through rulemaking, a fair 
and equitable methodology for the assessment and collection of fees 
applicable to persons subject to FEMA's radiological emergency 
preparedness regulations. Public Law 103-327 grants authority for these 
user fees to be assessed and collected for fiscal year 1995 services 
only. Although the final rule 44 CFR part 354 is restricted to FY 1995, 
FEMA reserves the option of reissuing or amending part 354 for other 
fiscal years provided that appropriate authority is enacted.
    Under final rule 44 CFR part 354, fiscal year budgeted funds for 
REP Program services performed by FEMA personnel and FEMA contractors 
will be recovered whether or not these services directly support NRC 
licensing requirements. Fees for FY 1995 will be assessed using a 
historically-based methodology in which two components, a site-
specific, biennial exercise-related component and a flat fee component, 
are calculated for each site. Final rule 44 CFR part 354 specifies this 
historically-based approach to the methodology in lieu of the flat fee 
approach described in the proposed rule 44 CFR part 354 published in 
the Federal Register on July 27, 1994, based upon the numerous public 
comments received in response to the proposed flat fee methodology and 
supported by the results of a comparison of different user fee 
methodologies using actual data for FYs 1993 and 1994.
    The historically-based methodology contains elements of the flat 
fee methodology and of the Nuclear Management and Resources Council 
(NUMARC), now Nuclear Energy Institute (NEI), methodology, which was 
described in the proposed rule 44 CFR part 354. The historically-based 
methodology responds to commenters who objected to the flat fee's lack 
of site-specific considerations and accountability by factoring in 
site-specific information relating to the majority of site-specific 
activities, i.e, plume pathway emergency planning zone (EPZ) biennial 
REP exercises. At the same time, the historically-based methodology 
preserves many of the benefits of a flat fee methodology, specifically: 
(1) The ability to provide each licensee with a bill early in the 
fiscal year, thus facilitating the licensee's planning and budgeting 
process by greatly increasing the predictability of the licensee's 
bill; (2) the ability of States and licensees to request needed 
technical assistance; (3) the earlier deposit of funds in the U.S. 
Treasury, thus benefiting the U.S. taxpayer; and (4) a reduction of the 
FEMA resources required to track administrative costs, thus making the 
accounting and billing process more efficient and cost-effective for 
the Government and freeing up scarce [[Page 15629]] FEMA resources for 
other REP Program activities. In addition, the historically-based 
methodology provides a compromise approach that ensures fairness and 
equitability in the billing.
    Under section 354.4, Assessment of Fees, the determination of costs 
is divided into three categories: site-specific, biennial exercise-
related FEMA personnel costs; site-specific, biennial exercise-related 
FEMA contractor costs; and remaining costs, i.e., the flat fee 
component.
    FEMA's services primarily are provided in support of a Memorandum 
of Understanding (MOU) between the NRC and FEMA published on September 
14, 1993 (58 FR 47996), and regulations issued by both FEMA (44 CFR 
parts 350, 351, and 352) and the NRC (10 CFR parts 50 and 52).
    Radiological emergency response plans and exercises are evaluated 
using joint FEMA-NRC criteria, NUREG-0654/FEMA-REP-1, Revision 1 and 
Supplement 1. When State and local governments do not participate in 
the development of an emergency plan, the licensee may submit a 
licensee offsite plan to the NRC. Pursuant to the MOU, the NRC can 
request that FEMA review a licensee offsite plan and provide its 
assessments and findings on the adequacy of such plans and preparedness 
evaluated under Supplement 1.
    All funds collected under this rule will revert to the United 
States Treasury to offset appropriated funds obligated by FEMA for its 
REP Program. The Department of the Treasury requested that the user fee 
rule provide for the use of electronic billing and payment mechanisms. 
FEMA worked with the Department of the Treasury to effect these 
procedures and now provides for payment of bills by electronic 
transfers through Automated Clearing House (ACH) credit payments. The 
Department of the Treasury recently revised publication I-TFM 6-8000 to 
require, under section 8025.30, all funds to be collected by electronic 
funds transfer when such collection would be cost-effective, 
practicable, and consistent with current statutory authority.

Discussion of Comments on Proposed Rule

    In response to FEMA's request for public comments in connection 
with the Federal Register publication of the proposed final rule, 44 
CFR part 354, FEMA received comments from 80 individuals representing 
32 utilities, one Federal agency, one industry association, 33 members 
of Congress (some commenting via multi-signatory letters), two State 
Governors, eight State emergency management agencies, two public 
service commissions and one private citizen.
    Comment. A number of utilities, Members of Congress, and State 
representatives commented that a methodology, such as NUMARC's proposed 
methodology, with a site-specific element is more equitable than the 
flat fee and should be adopted.
    Discussion. FEMA considered the comments received in support of the 
inclusion of site-specific charges in the user fees, balanced against 
the many benefits of a methodology that did not require the distinction 
between site-specific and generic REP-related activities. FEMA also 
used actual FYs 1993 and 1994 data to calculate and analyze the bills 
that would have resulted using the current methodology, the flat fee, 
the NUMARC proposed methodology, and the historically-based 
methodology. The results support the historically-based methodology as 
a fair and equitable method for determining user fees. FEMA concluded 
that, by changing the flat fee methodology to include a site-specific, 
plume pathway EPZ biennial exercise-related component, the methodology 
contained in the final rule would be fair and equitable and yet retain 
many of the benefits of the flat fee while still responding to the 
concerns of proponents of a methodology with a site-specific element.
    Response. FEMA has changed the flat fee methodology to one that 
includes a site-specific component that factors in plume pathway EPZ 
biennial REP exercise-related activities.
    Comment. A number of the utilities and some public officials 
expressed their strong support of the flat fee methodology, reiterating 
the benefits cited in the Supplementary Information section of the 
proposed rule. Many supporters also stated that site-specific oriented 
methodologies had resulted in disproportionately large fees to some 
utilities and that the flat fee remedied this inequity.
    Discussion. FEMA considered comments submitted in support of the 
flat fee and concluded that the historically-based methodology 
contained in the final rule preserves many of the benefits cited by 
proponents of the flat fee while responding to the concerns expressed 
by commenters who opposed the flat fee.
    Response. The final rule changes the methodology from a flat fee 
approach to a methodology that has a flat component and a historically-
based, site-specific component reflecting plume pathway EPZ biennial 
exercise activities.
    Comment. Several utilities commented that the user fee rule covers 
services whether or not they directly support NRC commercial nuclear 
power plant licensing requirements and stated that utilities should not 
be charged for services that fall outside the area of nuclear 
regulation, including Department of Defense (DOD) and Department of 
Energy (DOE) facilities, as well as other NRC licensed facilities.
    Discussion. The FEMA/NRC Memorandum of Understanding allows the NRC 
to request FEMA REP Program support, as necessary, for NRC licensees 
other than those for commercial nuclear power plants. Since the 
potential exists for the NRC to request such REP Program support for 
other licensees, the rule is not limited to 10 CFR part 50 licensees. 
At this time, however, FEMA is assessing fees only for licensees of 
commercial nuclear power plants, since activities involving other 
licensees have been very limited or non-existent and are expected to 
remain so and the NRC has not requested FEMA assessment and findings on 
the adequacy of offsite planning and preparedness for these licensees. 
With respect to DOD and DOE facilities, 44 CFR part 354 applies only to 
NRC licensed facilities, not to DOE and DOD facilities.
    Response. No change is necessary because current language in this 
rule is not limited to 10 CFR part 50 NRC commercial nuclear power 
plant licensees and is not intended to be so limited.
    Comment. Several utilities and many Members of Congress and State 
officials commented that the flat fee is not fair and equitable since 
it does not reflect the actual costs incurred or expended on the 
beneficiary and because it increases some fees without an increase in 
service.
    Discussion. The methodology specified in final rule 44 CFR part 354 
contains a site-specific exercise component, which does reflect actual 
costs historically expended on the beneficiary. Since exercise 
activities constitute the majority of site-specific REP activities, if 
services in support of site-specific exercise activities were to 
increase or decrease, that change would be reflected in future user 
fees for that site.
    Response. Changes made to the rule respond to the intent of the 
comment.
    Comment. Many utilities, Members of Congress, and State officials 
commented that the flat fee is charged to all plants regardless of 
size, population density of the surrounding area, or number of 
governmental jurisdictions and that this places an unfair share of the 
cost of FEMA services on the customers of [[Page 15630]] utilities in 
less urban areas and areas with fewer governmental jurisdictions.
    Discussion. The methodology specified in the final user fee rule 
includes a site-specific exercises component. Since site-specific 
exercises reflect differences in EPZ populations and number of 
jurisdictions, and since exercises represent the majority of site-
specific REP Program activities, the methodology specified in final 
rule 44 CFR part 354 does account for these factors.
    Response. The change from a flat fee methodology to a methodology 
that includes a site-specific exercise component responds to this 
comment.
    Comment. One utility commented that sections 354.2(a) and 
354.3(d)(1) refer to a ``license to decommission'' a commercial nuclear 
power plant. Since such an NRC license does not exist, references to 
this license should be deleted.
    Discussion. FEMA agrees with this comment.
    Response. References to a ``license to decommission'' have been 
deleted from sections 354.2(a) and 354.3(d)(1).
    Comment. One utility commented that sections 354.2(b) and 
354.3(d)(2) should be clarified to limit the regulation's applicability 
to only those possession-only licensees that have neither requested nor 
received an exemption from NRC 10 CFR 50.54(q) requirements concerning 
offsite radiological emergency response planning.
    Discussion. It is appropriate to exclude possession-only licensees 
that have received an exemption from offsite radiological emergency 
response planning. However, it would be inappropriate to exclude 
possession-only licensees that have requested, but not yet received, 
this exemption.
    Response. The phrase ``with the exception of licensees that have 
received an NRC-approved exemption to 10 CFR 50.54(q) requirements'' 
has been added to sections 354.2(b) and 354.3(d)(2).
    Comment. One utility commented that section 354.4(b), now section 
354.4(e), should be revised to clarify the reference to FEMA closing 
out the ``official docket,'' since there is no formal mechanism for 
officially closing out the FEMA docket for a plant. Suggested 
replacement language includes the phrase ``Commencing from the date of 
receipt, user fees will no longer be assessed for that site.''
    Discussion. The reference to a FEMA official docket has been 
deleted. The substitute language suggested by the commenter is 
acceptable, with the exception of the phrase ``from the date of 
receipt.'' Since the user fees for a particular fiscal year will not be 
prorated to cover just a portion of that year, the assessment of user 
fees for the discontinued plant would cease at the end of the fiscal 
year in which the plant was exempted by the NRC.
    Response. The following language was added to section 354.4(e): 
``Upon receipt of a copy from the NRC of the NRC-approved exemption to 
10 CFR 50.54(q) requirements stating that offsite radiological 
emergency planning and preparedness is no longer required at a 
particular commercial nuclear power plant site, FEMA will discontinue 
REP Program services. Commencing at the beginning of the next fiscal 
year, a user fee will no longer be assessed for that site.''
    Comment. One utility commented that FEMA should consider future 
changes to the regulation that would reduce or remove generic costs 
associated with REP Program activities (such as program administration, 
policy and guidance development, research, etc.) from the fee base, 
since these costs are associated with the broader societal benefits of 
the REP Program and benefit the State and local governments as well as 
the licensees.
    Discussion. These generic activities are carried out specifically 
to support the offsite activities of the NRC's licensing requirements 
that govern the commercial nuclear power plants. Therefore, despite a 
possible broader benefit, it is appropriate for the nuclear power plant 
utilities to be charged for REP Program generic activities.
    Response. No change.
    Comment. One utility commented that requiring utilities to pay the 
user fee in the month of December (beginning after FY 1995) places an 
undue hardship on most utilities. It recommended that bills be sent out 
in December with payment allowed in December or January.
    Discussion. Inasmuch as possible, FEMA intends to send out the user 
fee bills in December of the applicable fiscal year for payment in 
either December or January, in order to provide more payment 
flexibility to the licensees.
    Response. FEMA will, to the extent possible, send out the user fee 
bills in December of the applicable fiscal year.
    Comment. Several utilities commented that the flat fee places an 
unfair burden on those utilities that have invested in and worked 
closely with State and local offsite radiological emergency response 
organizations to establish highly effective programs that require 
minimal FEMA interaction to monitor and assess.
    Discussion. The proposed flat fee methodology has been changed to 
the historically-based methodology that factors in a site-specific, 
plume pathway EPZ biennial exercise component. This methodology does 
recognize State and local organizations' efficiencies in REP planning 
and preparedness insofar as many of these efficiencies are reflected in 
site-specific, plume pathway EPZ biennial exercise activities.
    Response. The change from a flat fee methodology to a methodology 
that includes a site-specific, plume pathway EPZ biennial exercise 
component responds to this comment.
    Comment. A number of utilities, Members of Congress, State 
representatives, and the industry organization commented that the 
recovery of budgeted funds prior to expenditure and the use of a 
methodology that does not take site-specific activities into 
consideration fails to provide accountability and the desire to 
maximize the efficient use of resources, e.g., evaluators.
    Discussion. The addition of the site-specific exercise component 
allows for exercise costs, including costs for exercise evaluators, to 
be factored in based on historical costs. FEMA's desire to maximize the 
efficient use of REP Program resources is based primarily on the 
necessity of protecting the health and safety of FEMA's ultimate 
customers, i.e., the State and local governments and the people they 
represent, not upon accountability to the licensees.
    Response. The change from a flat fee methodology to a methodology 
that includes a site-specific component responds to this comment.
    Comment. Two utilities and a private citizen commented that it is 
unfair and inequitable for FEMA to recover any of the REP budget from 
commercial nuclear utilities; these costs should be paid from tax 
revenues.
    Discussion. The requirement to recover the REP Program budget costs 
from the program's beneficiaries is not a FEMA requirement, but rather 
a Congressional mandate. The rule implements Title V of the Independent 
Offices Appropriations Act of 1952, 31 U.S.C. 9701, which authorizes 
FEMA to recover to the fullest extent possible costs attributable to 
services to identifiable recipients. FEMA's appropriation acts for FYs 
1993, 1994, and 1995 direct FEMA to publish the specific methodology to 
be employed to recover these costs.
    Response. No change.
    Comment. Two utilities commented that as plants are decommissioned, 
the flat fee would continually increase for [[Page 15631]] the 
remaining sites with operational REP activities.
    Discussion. The final rule does not contain the flat fee 
methodology but, instead, provides a historically-based methodology 
that includes charges site-specific for plume pathway EPZ biennial REP 
exercises. However, the historically-based methodology does contain a 
flat component reflecting activities not related to plume pathway EPZ 
biennial exercises. As plants are decommissioned, this component will 
increase, although not to the same extent as it would have under the 
flat fee. It should be noted that, regardless of the number of plants, 
the activities carried out under the flat component must still be 
maintained at the same level. This would also have been the case had 
the NUMARC methodology been adopted. Notwithstanding the above, 
allowance is made in the methodology for periodic adjustments to the 
fees as necessary.
    Response. No change, other than the change to a historically-based 
methodology.
    Comment. One utility commented that FEMA should be required to 
provide greater detail on the nature of costs categorized as generic 
and questioned why the ratio of generic to site-specific is so high.
    Discussion. Under the historically-based methodology, generic 
activities are billed under the flat, or non-biennial exercise-related 
component. Generic costs cover a number of important REP Program 
activities, including policy and guidance development, research, public 
education, staff training, and general program administration, which 
must be maintained for and have equal benefit to all licensees.
    Response. No change.
    Comment. One utility commented that it will not be served by FEMA's 
one-time adjustment to the billing cycle since the utility's fiscal 
year runs from October 1 to September 30. The billing option should be 
more flexible.
    Discussion. This utility's situation is unique, since it is a 
governmental entity and operates on the Government's fiscal year 
schedule. Due to the structure of the interim rule methodology, the FY 
1994 final bills could not be calculated before the end of FY 1994, 
and, thus, this utility will experience a one-time situation where one-
half of its FY 1994 bill and its entire FY 1995 bill will be due during 
the Government's FY 1995. Since the FY 1995 bills will be sent out in 
April 1995, a one-time adjustment to the billing cycle will not be 
necessary in order to allow the other utilities to pay their bill in 
their FY 1995, i.e., calendar year 1995.
    Response. No change.
    Comment. One utility agreed that generic costs incurred by FEMA can 
and should be divided equally among the NRC licensees on a per site 
basis. However, the utility commented, because site-specific costs vary 
widely by utility and in accordance with the nature of any given plant 
exercise, the fees cannot be accurately predicted and there is no 
demonstrated need to collect them in advance.
    Discussion. Since the flat fee methodology has been changed to a 
methodology that includes a site-specific exercise component based upon 
historical exercise-related costs, the site-specific component is known 
at the beginning of the fiscal year. The remaining component is the sum 
of the site-specific components subtracted from the total REP budget; 
thus the entire user fee for each site can be known at the beginning of 
the fiscal year.
    Response. The change from a flat fee methodology to a methodology 
that includes a site-specific component responds to this comment.
    Comment. One utility commented that with regard to earlier deposit 
of funds in the U.S. Treasury, FEMA can adopt regulations that require 
NRC licensees to prepay REP fees based on historical site-specific 
costs and shared generic costs.
    Discussion. The final rule does contain a site-specific component 
based upon historical biennial exercise-related costs and the remaining 
costs are shared equally among the licensees.
    Response. The change from a flat fee methodology to a methodology 
that includes a historically-based, site-specific exercise component 
responds to this comment.
    Comment. One utility commented that if FEMA wants to adopt a 
levelized fee structure over the two-year cycles, the following method 
may be used: Allow low-cost operations to pay one flat fee each year 
while high-cost operations would be required to pay a much higher flat 
fee each year. In alternating years, FEMA would undercollect based on 
services provided and in other years FEMA would overcollect from the 
same licensees, based on actual services rendered.
    Discussion. The methodology contained in the final rule includes a 
historically-based, site-specific, exercise-related component that will 
result in a relatively level fee structure over the two-year cycles.
    Response. The change from a flat fee methodology to a methodology 
that includes a site-specific component responds to the intent of this 
comment.
    Comment. Several utilities commented that the ability, under the 
flat fee, of the States and licensees to request technical assistance 
without the concern of additional fee assessment is not a strong 
advantage since it could lead to organizations constantly requesting 
technical assistance when it is not needed.
    Discussion. The historically-based methodology will still permit 
the States and licensees to request needed technical assistance without 
penalty. However, requests for technical assistance will not increase 
the total REP Program budget and, therefore, will not adversely affect 
States and licensees with a lesser need for technical assistance.
    Response. No change.
    Comment. Two utilities commented that if FEMA's administrative 
costs for accounting and billing purposes are reduced, FEMA should 
delete these costs and positions from the budget, rather than 
reallocating the resources since utilities are reducing their staffs 
and FEMA should do so too.
    Discussion. The FEMA REP staff funded by the S&E portion of FEMA's 
REP budget has already been reduced. The remaining staff members are 
needed to ensure that all of FEMA's REP Program responsibilities are 
adequately addressed and that public health and safety is ensured.
    Response. No change.
    Comment. The industry association commented that a site that has 
received an early site permit (ESP) should not be included in the fee 
base because, unlike sites with plants, it does not require ongoing 
FEMA services but, rather, a one-time review by FEMA. The ESP holder 
may ``bank'' the site for possible future use; thus, the plant may be 
built in the future or may never be built.
    Discussion. In the future there may be sites that have applied for 
and/or received ESPs. The precise extent to which such plants will 
require REP Program services is not known at this time, so this 
language must remain in the final rule in order to address any possible 
contingencies.
    Response. No change.
    Comment. The industry association commented that Combined Operating 
License (COL) holders should not be included in the base until such 
time as they require FEMA services, i.e., some years into the 
construction process. Also, the association recommended that the rule 
specifically exclude COLs for advanced plants built on current plant 
sites for which emergency preparedness plans already exist.
    Discussion. In the future there may be sites that have applied for 
and/or [[Page 15632]] received COLs. The precise extent to which such 
plants will require REP Program services is not known at this time, so 
this language must remain in the final rule in order to address any 
possible contingencies.
    Response. No change.
    Comment. Several utilities commented that, regardless of the fee 
collection methodology, FEMA should be required to continually evaluate 
the high cost of contractor labor and eliminate its use whenever 
possible, particularly in Medical Services drills. State and local 
emergency management personnel should be considered for use as exercise 
evaluators, especially if they hold the proper credentials.
    Discussion. FEMA does evaluate the use of contractor labor in an 
effort to allocate the use of its contractors as efficiently as 
possible. However, contractor support services are critical to the 
successful implementation of the REP Program primarily because of the 
cyclical demands for qualified REP exercise evaluators. It would not be 
cost effective to hire FEMA employees in order to respond to cyclical, 
fluctuating demands. Also, with the current emphasis on the reduction 
of Federal employees, it is unlikely that FEMA would be authorized the 
additional staff necessary to replace contractor support. FEMA has 
explored the possibility of the use of State and local emergency 
management personnel as exercise evaluators; however, FEMA's General 
Counsel has determined that, since a REP exercise is a regulatory 
exercise used for credit for obtaining and maintaining a license, State 
and local personnel cannot be used as evaluators.
    Response. No change.
    Comment. Two utilities commenting in opposition to the flat fee 
stated that the funding mechanism should not be primarily intended to 
levelize budget expenses over the two-year exercise cycle, thereby 
increasing the predictability of a licensee's bill.
    Discussion. Many licensees consider the predictability of their 
user fee bills to be extremely useful for planning and budgeting 
purposes and would argue that the levelizing of budget expenses over 
the two-year exercise cycle and a resulting increase in the 
predictability of the licensees' bills should be a goal of the user fee 
methodology. The historically-based methodology accommodates these 
licensees' need for levelizing and predictability of bills while 
addressing some of the other drawbacks of a flat fee expressed by its 
opponents.
    Response. The change to a historically-based methodology with a 
site-specific exercise component preserves the predictability of the 
licensees' bill amounts while responding to the concerns of opponents 
of the flat fee.
    Comment. One utility commented that the rule states that fees for 
FEMA personnel and contractors will be assessed as part of the REP 
budget whether or not the personnel services support NRC licensed 
plants. In this situation, a FEMA REP staffer or contractor could be 
sent to respond to a natural disaster and the REP Program budget would 
be charged.
    Discussion. REP Program contractors would not be funded to respond 
to a natural disaster. FEMA did conduct a study that compared the 
amount of time that FEMA REP Program staff spent on non-REP activities 
with the amount of time spent by FEMA non-REP Program staff on REP 
Program activities. The results indicated that there was a ``wash,'' 
i.e., the amount of time involved was approximately the same.
    Response. No change.
    Regulatory Flexibility Act. The Director certifies that this final 
rule will not have a significant economic impact on a substantial 
number of small entities in accordance with the Regulatory Flexibility 
Act, 5 U.S.C. 601 et seq., because the rule does not apply to a 
substantial number of small entities as defined by the Small Business 
Size Standards, 13 CFR 121.601, Division E, Major Group 49, as amended, 
57 FR 62520, December 31, 1992, and is not expected (1) to have 
significant secondary or incidental effects on a substantial number of 
small entities, nor (2) to create any additional burden on a 
substantial number of small entities.
    National Environmental Policy Act. The Director has determined 
under the National Environmental Policy Act of 1969 and FEMA 
Regulation, 44 CFR part 10, Environmental Considerations, that this 
final rule is not a major Federal action significantly affecting the 
quality of the human environment. Therefore, an environmental impact 
statement is not required.
    Executive Order 12866, Regulatory Planning and Review. This final 
rule is not a significant regulatory action under Executive Order 12866 
of September 30, 1993, Regulatory Planning and Review. It will not have 
an annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy, a sector of the economy, 
productivity, competition, jobs, the environment, public health or 
safety, or State, local, or tribal governments or communities. The 
final rule does not create a serious inconsistency or interference with 
an action taken or planned by another agency. It does not materially 
alter the impact of entitlements, grants, or loan programs, nor would 
it raise novel legal or policy issues. To the greatest extent possible 
the final rule adheres to the regulatory principles set forth in 
Executive Order 12866. This final rule has not been reviewed by the 
Office of Management and Budget under the procedures of Executive Order 
12866.
    Paperwork Reduction Act. This final rule does not contain 
collection of information requirements and is not subject to the 
Paperwork Reduction Act of 1980, as amended (44 U.S.C. 3501 et seq.).
    Executive Order 12612, Federalism. A Federalism assessment under 
E.O. 12612 has been prepared and a copy is available for inspection and 
copying for a fee from the Rules Docket Clerk, address noted above.

List of Subjects in 44 CFR Part 354

    Disaster assistance, Intergovernmental relations, Nuclear power 
plants and reactors, Radiation protection, and Technical assistance.

    Accordingly, 44 CFR part 354 is revised to read as follows:

PART 354--FEE FOR SERVICES TO SUPPORT FEMA'S OFFSITE RADIOLOGICAL 
EMERGENCY PREPAREDNESS PROGRAM

Sec.
354.1 Purpose.
354.2 Scope.
354.3 Definitions.
354.4 Assessment of fees.
354.5 Description of services.
354.6 Billing and payment of fees.
354.7  Failure to pay.

    Authority: Sec. 109, Pub. L. 96-295, 94 Stat. 780; Sec. 2901, 
Pub. L. 98-369, 98 Stat. 494; Title III, Pub. L. 103-327, 108 Stat. 
2323-2325; EO 12148, 3 CFR, 1979 Comp., p. 412 (50 U.S.C. App. 2251 
note); EO 12657, 3 CFR, 1988 Comp., p. 611.


Sec. 354.1  Purpose.

    This part establishes the methodology for FEMA to assess and 
collect user fees from Nuclear Regulatory Commission (NRC) licensees of 
commercial nuclear power plants to recover at least 100 percent of the 
amounts anticipated by FEMA to be obligated for its Radiological 
Emergency Preparedness (REP) Program as authorized under Title III, 
Public Law 103-327, 108 Stat. 2323-2325. As stipulated by Public Law 
103-327, the methodology for assessment and collection of fees shall be 
fair and equitable, and shall reflect the full amount of costs of 
providing radiological emergency planning, preparedness, response and 
associated services. Such fees will be assessed in [[Page 15633]] a 
manner that reflects the use of agency resources for classes of 
regulated persons and the administrative costs of collecting such fees. 
Fees received pursuant to this section shall be deposited in the 
general fund of the Treasury as offsetting receipts. Assessment and 
collection of such fees are only authorized during fiscal year (FY) 
1995.


Sec. 354.2  Scope.

    The regulation in this part applies to all persons or licensees who 
have applied for or have received from the NRC:
    (a) A license to construct or operate a commercial nuclear power 
plant;
    (b) A possession-only license for a commercial nuclear power plant, 
with the exception of licensees that have received an NRC-approved 
exemption to 10 CFR 50.54(q) requirements;
    (c) An early site permit for a commercial nuclear power plant;
    (d) A combined construction permit and operating license for a 
commercial nuclear power plant; or
    (e) Any other NRC licensee that is now or may become subject to 
requirements for offsite radiological emergency planning and 
preparedness.


Sec. 354.3  Definitions.

    As used in this part, the following terms and concepts are defined:
    (a) FEMA means the Federal Emergency Management Agency.
    (b) NRC means the U. S. Nuclear Regulatory Commission.
    (c) Technical assistance means services provided by FEMA to 
accomplish offsite radiological emergency planning, preparedness and 
response, including but not limited to, provision of support for the 
preparation of offsite radiological emergency response plans and 
procedures, and provision of advice and recommendations for specific 
aspects of radiological emergency planning, preparedness and response, 
such as alert and notification and emergency public information.
    (d) Persons or Licensee means the utility or organization that has 
applied for or has received from the NRC:
    (1) A license to construct or operate a commercial nuclear power 
plant;
    (2) A possession-only license for a commercial nuclear power plant, 
with the exception of licensees that have received an NRC-approved 
exemption to 10 CFR 50.54(q) requirements;
    (3) An early site permit for a commercial nuclear power plant;
    (4) A combined construction permit and operating license for a 
commercial nuclear power plant; or
    (5) Any other NRC license that is now or may become subject to 
requirements for offsite radiological emergency planning and 
preparedness activities.
    (e) RAC means Regional Assistance Committee chaired by FEMA with 
representatives from the Nuclear Regulatory Commission, Environmental 
Protection Agency, Department of Health and Human Services, Department 
of Energy, Department of Agriculture, Department of Transportation, 
Department of Commerce, Department of Interior, and other Federal 
departments and agencies as appropriate.
    (f) REP means Radiological Emergency Preparedness as in FEMA's REP 
Program.
    (g) Fiscal Year means the Federal fiscal year commencing on the 
first day of October through the thirtieth day of September.
    (h) Federal Radiological Preparedness Coordinating Committee 
(FRPCC) means a committee chaired by FEMA with representatives from the 
Nuclear Regulatory Commission, Environmental Protection Agency, 
Department of Health and Human Services, Department of Interior, 
Department of Energy, Department of Transportation, Department of 
Agriculture, Department of Commerce, Department of State, Department of 
Veterans Affairs, General Services Administration, National 
Communications System, the National Aeronautics and Space 
Administration and other Federal departments and agencies as 
appropriate.
    (i) Site means the location at which one or more commercial nuclear 
power plants (reactor units) have been, or are planned to be, 
constructed.
    (j) Site-specific services mean offsite radiological emergency 
planning, preparedness and response services provided by FEMA personnel 
and by FEMA contractors that pertain to a specific commercial nuclear 
power plant site.
    (k) EPZ means emergency planning zone.
    (l) Plume pathway EPZ means for planning purposes, the area within 
approximately a 10-mile radius of a nuclear plant site.
    (m) Biennial exercise means the joint licensee/State and local 
government exercise, evaluated by FEMA, conducted around a commercial 
nuclear power plant site once every two years in conformance with 44 
CFR part 350.
    (n) Obligate or obligation means a legal reservation of 
appropriated funds for expenditure.


Sec. 354.4  Assessment of fees.

    Assessment of user fees from licensees is based on a methodology 
that includes charges for REP Program services provided by both FEMA 
personnel and FEMA contractors. Beginning with FY 1995, a four year 
cycle is established with predetermined user fee assessments which will 
be collected each year of the cycle. The assessments will initially be 
at the level indicated in the FY 1995 bills and, as described in 
paragraphs (b) and (d) of this section, for the remainder of the four 
year cycle, as authorized. The initial four year cycle will run from FY 
1995-1998. The following four year cycle will run from FY 1999-2003. 
Fees will be assessed only for REP Program services provided by FEMA 
personnel and by FEMA contractors and not for those services provided 
by other Federal agencies involved in the FRPCC or the RACs.
    (a) Description of fee components. The fee for each site consists 
of two distinct components:
    (1) A site-specific, biennial exercise-related component to recover 
the portion of the REP program budget associated only with plume 
pathway emergency planning zone (EPZ) biennial exercise-related 
activities.
    (2) A flat fee component that is the same for each site and 
recovers the remaining portion of the REP Program budgeted funding 
which does not include biennial exercise-related activities.
    (b) Determination of site-specific, biennial exercise-related 
component for FEMA personnel. An average biennial exercise-related cost 
for FEMA personnel has been determined for each commercial nuclear 
power plant site in the REP Program. This cost, which has been 
annualized (dividing the average biennial exercise-related cost by 
two), is based on the average number of hours expended by FEMA 
personnel in REP exercise-related activities for each site. The average 
number of hours has been determined based on an analysis of site-
specific exercise activity expended since the inception of FEMA's user 
fee program (1991). The actual user fee assessment for this component 
is determined by multiplying the average number of REP exercise-related 
hours, which has been determined and annualized for each site, by the 
average hourly rate for a REP Program employee in effect for the fiscal 
year. In FY 1995, the hourly rate has been determined to be $29.34 by 
the Chief Financial Officer of FEMA. The hourly rate will be revised 
annually to reflect actual budget and cost of living factors, but the 
number of site-specific exercise hours, [[Page 15634]] as annualized, 
will remain constant for user fee calculations and assessments 
throughout the four year cycle, e.g., FY 1995-1998. Exercise activity 
will continue to be tracked and monitored during the initial and 
subsequent four year cycles. Appropriate adjustments will be made to 
this component for calculation of user fee assessments during 
subsequent four year cycles.
    (c) Determination of site-specific, biennial exercise-related 
component for FEMA contract personnel. An average biennial exercise-
related cost for REP contractors has been determined for each 
commercial nuclear power plant site in the REP Program. This cost, 
which has been annualized (dividing the average biennial exercise-
related cost by two), is based on the average costs of contract 
personnel in REP site-specific exercise-related activities since the 
inception of FEMA's user fee program (1991). Exercise activity will 
continue to be tracked and monitored during the initial and subsequent 
four year cycles. Appropriate adjustments will be made to this 
component for calculation of user fee assessments during subsequent 
four year cycles.
    (d) Determination of flat fee component. For each year of the four 
year cycle, the remainder of REP Program budgeted funds is recovered as 
a flat fee component. Specifically, the flat fee component is 
determined by subtracting the total of the FEMA personnel and 
contractor site-specific, biennial exercise-related components, as 
outlined in paragraphs (b) and (c) of this section, from the total REP 
budget for that fiscal year. The resulting amount is equally divided 
among the total number of licensed commercial nuclear power plant sites 
as defined under Sec. 354.2, Scope, to arrive at each site's flat fee 
component for that fiscal year.
    (e) Discontinuation of Charges. Upon receipt of a copy from the NRC 
of the NRC-approved exemption to 10 CFR 50.54(q) requirements stating 
that offsite radiological emergency planning and preparedness is no 
longer required at a particular commercial nuclear power plant site, 
FEMA will discontinue REP Program services. Commencing at the beginning 
of the next fiscal year, a user fee will no longer be assessed for that 
site.


Sec. 354.5  Description of services.

    Site-specific and other REP Program services provided by FEMA and 
FEMA contractors for which licensees would be assessed fees include, 
but are not limited to, the following:
    (a) Site-specific, plume pathway EPZ biennial exercise-related 
component services. (1) Scheduling of plume pathway EPZ biennial 
exercises.
    (2) Review of plume pathway EPZ biennial exercise objectives and 
scenarios.
    (3) Pre-plume pathway EPZ biennial exercise logistics.
    (4) Conduct of plume pathway EPZ biennial exercises, evaluations, 
and post exercise briefings.
    (5) Preparing, reviewing and finalizing plume pathway EPZ biennial 
exercise reports, notice and conduct of public meetings.
    (6) Activities related to Medical Services and other drills 
conducted in support of a biennial, plume pathway exercise.
    (b) Flat fee component services. (1) Evaluation of State and local 
offsite radiological emergency plans and preparedness.
    (2) Scheduling of other than plume pathway EPZ biennial exercises.
    (3) Development of other than plume pathway EPZ biennial exercise 
objectives and scenarios.
    (4) Pre-other than plume pathway EPZ biennial exercise logistics.
    (5) Conduct of other than plume pathway EPZ biennial exercises and 
evaluations.
    (6) Preparing, reviewing and finalizing other than plume pathway 
EPZ biennial exercise reports, notice and conduct of public meetings.
    (7) Preparation of findings and determinations on the adequacy or 
approval of plans and preparedness.
    (8) Conduct of the formal 44 CFR part 350 review process.
    (9) Providing technical assistance to States and local governments.
    (10) Review of licensee submissions pursuant to 44 CFR part 352.
    (11) Review of NRC licensee offsite plan submissions under the NRC/
FEMA Memorandum of Understanding on Planning and Preparedness, and 
NUREG-0654/FEMA-REP-1, Revision 1, Supplement 1. Copies of the NUREG-
0654 may be obtained from the Superintendent of Documents, P.O. Box 
371954, Pittsburgh, PA 15250-7954.
    (12) Participation in NRC adjudicatory proceedings and any other 
site-specific legal forums.
    (13) Alert and notification system reviews.
    (14) Responses to petitions filed under 10 CFR 2.206.
    (15) Disaster-initiated reviews and evaluations.
    (16) Congressionally-initiated reviews and evaluations.
    (17) Responses to licensee's challenges to FEMA's administration of 
the fee program.
    (18) Response to actual radiological emergencies.
    (19) Development of regulations, guidance, planning standards and 
policy.
    (20) Coordination with other Federal agencies to enhance the 
preparedness of State and local governments for radiological 
emergencies.
    (21) Coordination of REP Program issues with constituent 
organizations such as the National Emergency Management Association, 
Conference of Radiation Control Program Directors, and the Nuclear 
Energy Institute.
    (22) Implementation and coordination of REP Program training with 
FEMA's Emergency Management Institute (EMI) to assure effective 
development and implementation of REP training courses and conferences.
    (23) Participation of REP personnel as lecturers or to perform 
other functions at EMI, conferences and workshops.
    (24) Services associated with the assessment of fees, billing, and 
administration of this part.


Sec. 354.6  Billing and payment of fees.

    FEMA will forward bills to licensees based on the assessment 
methodology set forth in Sec. 354.4 to recover the full amount of the 
funds budgeted by FEMA to provide REP Program services. Licensees with 
multiple sites will receive consolidated bills. FEMA will forward one 
bill to each licensee during the first quarter of the fiscal year, with 
payment due within 30 days. If minor adjustments are necessary due to 
FEMA exceeding its original budget for the fiscal year, the adjustment 
will appear in the bill for the subsequent fiscal year.


Sec. 354.7  Failure to pay.

    In any case where FEMA believes that a licensee has failed to pay a 
prescribed fee required under this part, procedures will be implemented 
in accordance with 44 CFR part 11, subpart C, to effectuate collections 
under the Debt Collection Act of 1982 (31 U.S.C. 3711 et seq.).

    Dated: March 16, 1995.
James L. Witt,
Director.
[FR Doc. 95-6998 Filed 3-23-95; 8:45 am]
BILLING CODE 6718-20-P