Preparedness: Offsite radiological emergency preparedness program; services fee,
[Federal Register: December 15, 1998 (Volume 63, Number 240)]
[Rules and Regulations]
[Page 69001-69005]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15de98-5]
FEDERAL EMERGENCY MANAGEMENT AGENCY
44 CFR Part 354
RIN 3067-AC87
Fee for Services To Support FEMA's Offsite Radiological Emergency Preparedness Program
AGENCY: Federal Emergency Management Agency (FEMA).
ACTION: Interim final rule with request for comments.
SUMMARY: This rule establishes the policies and administrative basis for FEMA to assess fees on Nuclear Regulatory Commission (NRC) licensees to recover the full amount of the funds that we obligate to provide services for offsite radiological emergency planning and preparedness beginning in Fiscal Year (FY) 1999.
DATES: This rule is effective December 15, 1998. Please submit your comments on or before February 16, 1999.
ADDRESSES: We invite your comments on this rule. Please submit them to the Rules Docket Clerk, Office of the General Counsel, Federal Emergency Management Agency, 500 C Street SW., room 840, Washington, DC 20472, (telefax) 202-646-4536, or (email) rules@fema.gov.
FOR FURTHER INFORMATION CONTACT: Vanessa E. Quinn, Preparedness, Training, and Exercises Directorate, Federal Emergency Management Agency, 500 C Street SW., Washington, DC 20472, (202) 646-3664, (telefax) 202-646-3508, (email) vanessa.quinn@fema.gov.
SUPPLEMENTARY INFORMATION:
Background: A Chronology
‹bullet› 1991. On March 6, 1991, we 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 we are publishing a new approach for the assessment and collection of fees from licensees for FY 1999 and beyond, part 353 remains in effect and will apply in any subsequent fiscal year for which the Congress does not authorize us to collect user fees for generic services.
‹bullet› 1992. Pub. L. 102-389, October 6, 1992, 106 Stat. 1571- 1606, expanded reimbursable REP Program activities by authorizing us to charge licensees of commercial nuclear power plants fees to recover the full amount of the funds anticipated to be obligated for our REP Program for FY 1993.
‹bullet› 1993. On July 1, 1993, we published in the Federal Register (58 FR 35770-35775) an interim final rule, 44 CFR part 354, to establish and set forth the policies and administrative basis for assessing and collecting these fees. We reserved the option to reissue or amend part 354 for other fiscal years provided that the Congress enacted appropriate authority.
‹bullet› Pub. L. 103-124, September 23, 1993, 107 Stat.1297, directed us to continue assessing and collecting fees to recover the full amount of the funds anticipated to be obligated for our REP Program for FY 1994. In addition, the Administration proposed to assess such fees for subsequent fiscal years.
‹bullet› Using the methodology established by the interim final rule, 44 CFR part 354, we calculated the final hourly user
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fee rate for FEMA personnel during FY 1993 at $122.88. On December 13, 1993, we published a notice to this effect in the Federal Register (58 FR 65274). The notice explained that we would not publish a final rule at that time, pending a reconsideration of the methodology used for FY 1993 and taking into consideration the comments received on interim final rule 44 CFR part 354.
‹bullet› 1994. We continued the methodology established by the interim final rule 44 CFR part 354 in effect for FY 1994 by notice in the Federal Register (59 FR 26350), published May 19, 1994.
‹bullet› Using the methodology established by the interim final rule, we calculated the final hourly user fee rate for FEMA personnel during FY 1994 at $120.79. On November 28, 1994, we published a notice to this effect in the Federal Register (59 FR 60792-60793).
‹bullet› On July 27, 1994, we published a proposed rule in the Federal Register, 59 FR 38306--38309, 44 CFR part 354. Predicated on Congress passing authorizing legislation, this rule proposed to 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 by FEMA contractors whether or not those services directly supported NRC licensing requirements.
‹bullet› 1995. Under our appropriation for FY 1995, Pub. L. 103- 327, September 28, 1994, 108 Stat. 2325, the Congress authorized us to assess and collect fees from Nuclear Regulatory Commission (NRC) licensees to recover approximately, but not less than, 100 percent of the amounts that we anticipated would be obligated for our Radiological Emergency Preparedness (REP) Program. This appropriations act further required us to publish 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. Pub. L. 103-327 granted authority for these user fees to be assessed and collected for fiscal year 1995 services only. Although the public law was limited to FY 1995, we reserved the option of reissuing or amending part 354 for other fiscal years provided that the Congress enacts appropriate authority.
‹bullet› Under final rule 44 CFR part 354, 60 FR 15628-15634, published on March 24, 1995, we acted to recover fiscal year budgeted funds for REP Program services performed by FEMA personnel and by FEMA contractors whether or not those services directly supported NRC licensing requirements. We assessed fees for FY 1995-FY 1998 using a historically-based methodology in which we calculated two components for each site: (1) A site-specific, biennial exercise-related component and (2) a flat fee component.
‹bullet› Pub. L. 105-276, 112 Stat. 2502, established in the Treasury a Radiological Emergency Preparedness Fund, which will be available for offsite radiological emergency planning, preparedness, and response. This Act gives continuing authority to the Director of FEMA, beginning in fiscal year 1999 and thereafter, to publish fees to be assessed and collected, applicable to persons subject to our radiological emergency preparedness regulations. As in previous Acts, we must collect not less than 100 percent of the amounts needed for our radiological emergency preparedness program, and the methodology for assessment and collection of fees must be fair and equitable. Fees received must be deposited in the Fund as offsetting collections and become available on October 1, 1999, and remain available until expended.
Historically-based methodology. Final rule 44 CFR part 354 adopted the historically-based approach to the methodology in place of the flat fee approach described in the proposed rule. We adopted this approach based on the numerous public comments that we received on our proposed flat fee methodology and on the results of our comparison of different user fee methodologies, which used actual data from fiscal years 1993 and 1994.
The historically-based methodology contains elements of the flat fee methodology and of the Nuclear Energy Institute (NEI) methodology. The 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.
The historically-based methodology also 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;
(4) A reduction of our resources needed to track administrative costs, thus making the accounting and billing process more efficient and cost-effective for the Government and freeing up our scarce resources for other REP Program activities; and
(5) The historically-based methodology ensures fairness and equity in billing licensees.
Agreements and criteria for services we provide. We provide services primarily under a Memorandum of Understanding (MOU) between the NRC and FEMA, published on September 14, 1993 (58 FR 47996--48001) and under regulations issued by both FEMA (44 CFR parts 350, 351, and 352) and the NRC (10 CFR parts 50 and 52).
We evaluate radiological emergency response plans and exercises 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. Under the MOU, the NRC can request that we review a licensee offsite plan and provide its assessments and findings on the adequacy of such plans and preparedness evaluated under Supplement 1.
Electronic billing and payment. We will deposit all funds collected under this rule to the newly established Radiological Emergency Preparedness Fund as offsetting collections, which will be available for our REP Program. The Department of the Treasury recently revised Sec. 8025.30 of publication I-TFM 6-8000 to require Federal agencies to collect funds by electronic funds transfer when such collection is cost-effective, practicable, and consistent with current statutory authority. Working with the Department of the Treasury we now provide for payment of bills by electronic transfers through Automated Clearing House (ACH) credit payments.
Revisions Pertaining to This Interim Rule
This Interim Final Rule makes two principal changes to 44 CFR part 354. The first revision is that we increase the billing cycle from four years to six years. The first six-year cycle will encompass FY 1999- 2004. We will continue to track and monitor exercise activity during this period of time and will make appropriate adjustments to this component to calculate user fee assessments for later six-year cycles.
Under the second revision fees received under this rule will be deposited in the newly established Radiological Emergency Preparedness Fund. Fees received will be deposited in
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the Fund as offsetting collections and will be available for offsite radiological emergency preparedness, planning, and response activities beginning on October 1, 1999.
Administrative Procedure Act Determination
We are publishing this interim final rule without opportunity for prior public comment under the Administrative Procedure Act, 5 U.S.C. 553. I have determined that a comment period would be unnecessary, impractical, and contrary to the public interest. This interim final rule does not contain any significant, substantive changes from previous REP regulations, but reflects changes to internal procedures under which we will assess and collect fees from NRC licensees.
Procedures affecting NRC licensees remain substantially unchanged. The procedural changes do not affect the rights of NRC licensees to dispute the nature or the amount of the assessment or method of collection. Further, the procedural changes in this interim final rule primarily affect how we will participate in the offset program. In order to implement the program for assessments made for FY 1999 and beyond, we need to modify and publish our regulations. We invite public comments on the interim final rule, and will take any comments into account when we publish the final rule. I determine that good cause exists and that it is in the public interest to issue this interim final rule without opportunity for prior public comment.
Regulatory Flexibility Act
I certify that this interim final rule is exempt from the requirements of the Regulatory Flexibility Act because it makes minor and technical amendments mandated by statute, 31 U.S.C. 3720A and by the Department of the Treasury Interim Rule. This interim final rule does not contain any significant substantive changes from FEMA's present debt collection regulations and does not substantially change how FEMA collects debts owed the United States that arise under FEMA programs. The Regulatory Flexibility Act does not apply to this interim final rule and no regulatory analysis has been prepared.
Paperwork Reduction Act
The Office of Management and Budget (OMB) has approved the information collection requirements contained in this interim final rule under the provisions of the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and has assigned OMB control number 3067-0122.
Executive Order 12866, Regulatory Planning and Review
Promulgation of this interim final rule is required by statute, 31 U.S.C. 3716 and 3720A, and is not a significant regulatory action within the definition of E.O.12866. To the extent possible under the statutory requirements of 31 U.S.C. 3720A this interim final rule adheres to the principles of regulation set forth in Executive Order 12866. The Office of Management and Budget did not review this interim final rule under Executive Order 12866.
Congressional Review of Agency Rulemaking
We have sent this interim final rule to the Congress and to the General Accounting Office under the Congressional Review of Agency Rulemaking Act, Pub. L. 104-121. This interim final rule is not a ``major rule'' within the meaning of that Act. It does not result in nor is it likely to result in an annual effect on the economy of $100,000,000 or more; it will not result in a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; and it will not have ``significant adverse effects'' on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises.
This interim final rule is exempt from the requirements of the Regulatory Flexibility Act, as certified previously, and complies with the Paperwork Reduction Act.
This interim final rule is not an unfunded Federal mandate within the meaning of the Unfunded Mandates Reform Act of 1995, Pub. L. 104-4. The rule does not meet the $100,000,000 threshold before that Act applies.
List of Subjects in 44 CFR Part 354
Disaster assistance, Commercial nuclear power plants and reactors, Intergovernmental relations, Radiation protection, and Technical assistance.
Accordingly, we revise 44 CFR 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 of this regulation. 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: Reorganization Plan No. 3 of 1978, 43 FR 41943, 3 CFR, 1978 Comp., p. 329; sec. 109, Pub. L. 96-295, 94 Stat. 780; sec. 2901, Pub. L. 98-369, 98Stat. 494; Title III, Pub. L. 103-327, 108 Stat. 2323-2325; Pub. L. 105-276, 112 Stat. 2502; EO 12148, 44 FR 43239, 3 CFR, 1979 Comp., p. 412; EO 12657, 53 FR 47513, 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 that we anticipate to obligate for our Radiological Emergency Preparedness (REP) Program as authorized under Title III, Pub. L. 105- 276, 112 Stat. 2461, 2502. Under Pub. L. 105-276 the methodology for assessment and collection of fees must be fair and equitable and must reflect the full amount of costs of providing radiological emergency planning, preparedness, response and associated services. Our assessment of fees will include our costs for use of agency resources for classes of regulated persons and our administrative costs to collect the fees. Licensees will deposit fees by electronic transfer into the Radiological Emergency Preparedness Fund in the U.S. Treasury as offsetting collections.
Sec. 354.2 Scope of this regulation.
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.
The following definitions of terms and concepts apply to this part:
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.
EPZ means emergency planning zone.
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FEMA means the Federal Emergency Management Agency.
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.
Fiscal Year means the Federal fiscal year commencing on the first day of October through the thirtieth day of September.
NRC means the U.S. Nuclear Regulatory Commission.
Obligate or obligation means a legal reservation of appropriated funds for expenditure.
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.
Plume pathway EPZ means for planning purposes, the area within approximately a 10-mile radius of a nuclear plant site.
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.
REP means Radiological Emergency Preparedness as in FEMA's REP Program.
Site means the location at which one or more commercial nuclear power plants (reactor units) have been, or are planned to be built.
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.
Technical assistance means services provided by FEMA to accomplish offsite radiological emergency planning, preparedness and response, including 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.
Sec. 354.4 Assessment of fees.
(a)(1) We, FEMA, assess user fees from licensees using on a methodology that includes charges for REP Program services provided by both our personnel and our contractors. Beginning in FY 1995, we established a four-year cycle from FY 1995-1998 with predetermined user fee assessments that were collected each year of the cycle. The following six-year cycle will run from FY 1999 through FY 2004. The fee for each site consists of two distinct components:
(i) 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. We determine this component by reviewing average biennial exercise-related activities/hours that we use in exercises conducted since the inception of our REP user fee program in 1991. We completed an analysis of REP Program activities/hours used during the FY 1991- 1995 cycle at the end of that four-year cycle. We will make adjustments to the site-specific user fees for the next proposed FY 1999-2004 six- year cycle.
(ii) A flat fee component that is the same for each site and recovers the remaining portion of the REP Program budgeted funding that does not include biennial exercise-related activities.
(2) We will assess fees only for REP Program services provided by our personnel and by our contractors, and we will not assess fees for those services that other Federal agencies involved in the FRPCC or the RACs provide.
(b) Determination of site-specific, biennial exercise-related component for our personnel. We will determine an average biennial exercise-related cost for our personnel for each commercial nuclear power plant site in the REP Program. We base this annualized cost (dividing the average biennial exercise-related cost by two) on the average number of hours spent by our personnel in REP exercise-related activities for each site. We will determine the average number of hours using an analysis of site-specific exercise activity spent since the beginning of our user fee program (1991). We determine the actual user fee assessment for this component by multiplying the average number of REP exercise-related hours that we determine and annualize for each site by the average hourly rate in effect for the fiscal year for a REP Program employee. We will revise the hourly rate annually to reflect actual budget and cost of living factors, but the number of annualized, site-specific exercise hours will remain constant for user fee calculations and assessments throughout the six-year cycle. We will continue to track and monitor exercise activity during the six-year cycle, FY 1999-2004. We will make appropriate adjustments to this component to calculate user fee assessments for later six-year cycles.
(c) Determination of site-specific, biennial exercise-related component for FEMA contract personnel. We have determined an average biennial exercise-related cost for REP contractors for each commercial nuclear power plant site in the REP Program. We base this annualized cost (dividing the average biennial exercise-related cost by two) on the average costs of contract personnel in REP site-specific exercise- related activities since the beginning of our user fee program (1991). We will continue to track and monitor activity during the initial six- year cycle, FY 1999-2004, and we will make appropriate adjustments to this component for calculation of user fee assessments during subsequent six-year cycles.
(d) Determination of flat fee component. For each year of the six- year cycle, we recover the remainder of REP Program budgeted funds as a flat fee component. Specifically, we determine the flat fee component by subtracting the total of our personnel and contractor site-specific, biennial exercise-related components, as outlined in Sec. 354.4 (a) and (b), from the total REP budget for that fiscal year. We then divide the resulting amount equally among the total number of licensed commercial nuclear power plant sites (defined under Sec. 354.2, Scope) to arrive at each site's flat fee component for that fiscal year.
(e) Discontinuation of charges. When we receive a copy from the NRC of their
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approved exemption to 10 CFR 50.54(q) requirements stating that offsite radiological emergency planning and preparedness are no longer required at a particular commercial nuclear power plant site, we will discontinue REP Program services at that site. We will no longer assess a user fee for that site from the beginning of the next fiscal year.
Sec. 354.5 Description of services.
Site-specific and other REP Program services provided by FEMA and FEMA contractors for which FEMA will assess fees on licensees include the following:
(a) Site-specific, plume pathway EPZ biennial exercise-related component services.
(1) Schedule plume pathway EPZ biennial exercises.
(2) Review plume pathway EPZ biennial exercise objectives and scenarios.
(3) Provide pre-plume pathway EPZ biennial exercise logistics.
(4) Conduct plume pathway EPZ biennial exercises, evaluations, and post exercise briefings.
(5) Prepare, review and finalize plume pathway EPZ biennial exercise reports, give notice and conduct 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) Evaluate State and local offsite radiological emergency plans and preparedness.
(2) Schedule other than plume pathway EPZ biennial exercises.
(3) Develop other than plume pathway EPZ biennial exercise objectives and scenarios.
(4) Pre-exercise logistics for other than the plume pathway EPZ.
(5) Conduct other than plume pathway EPZ biennial exercises and evaluations.
(6) Prepare, review and finalize other than plume pathway EPZ biennial exercise reports, notice and conduct of public meetings.
(7) Prepare findings and determinations on the adequacy or approval of plans and preparedness.
(8) Conduct the formal 44 CFR part 350 review process.
(9) Provide technical assistance to States and local governments.
(10) Review licensee submissions pursuant to 44 CFR part 352.
(11) Review 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. You may obtain copies of the NUREG-0654 from the Superintendent of Documents, U.S. Government Printing Office.
(12) Participate in NRC adjudication proceedings and any other site-specific legal forums.
(13) Alert and notification system reviews.
(14) Responses to petitions filedunder 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) Develop regulations, guidance, planning standards and policy.
(20) Coordinate with other Federal agencies to enhance the preparedness of State and local governments for radiological emergencies.
(21) Coordinate 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) Implement and coordinate REP Program training with FEMA's Emergency Management Institute (EMI) to assure effective development and implementation of REP training courses and conferences.
(23) REP personnel participation 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.
We will send bills that are based on the assessment methodology set out in Sec. 354.4 to licensees to recover the full amount of the funds that we budget to provide REP Program services. Licensees that have more than one site will receive consolidated bills. We will forward one bill to each licensee during the first quarter of the fiscal year, with payment due within 30 days. If we exceed our original budget for the fiscal year and need to make minor adjustments, the adjustment will appear in the bill for the next fiscal year.
Sec. 354.7 Failure to pay.
Where a licensee fails to pay a prescribed fee required under this part, we will implement procedures under 44 CFR part 11, Subpart C, to collect the fees under the Debt Collection Act of 1982 (31 U.S.C. 3711 et seq.).
Dated: December 10, 1998. James L. Witt, Director.
[FR Doc. 98-33198Filed12-14-98; 8:45 am]
BILLING CODE 6718-06-P
