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

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.

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 historicallybased 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 sitespecific considerations and

accountability by factoring in sitespecific 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
Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations 15629

FEMA resources for other REP Program

activities. In addition, the historicallybased 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: sitespecific, 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 costeffective, 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 sitespecific 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 sitespecific 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
15630 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

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 sitespecific 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 possessiononly 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 sitespecific 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 sitespecific 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
Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations 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 sitespecific 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 historicallybased 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 sitespecific exercise component based upon

historical exercise-related costs, the sitespecific 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, sitespecific 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
15632 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

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.

§ 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
Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations 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.

§ 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.

§ 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.

§ 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 exerciserelated 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 sitespecific 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,
15634 Federal Register / Vol. 60, No. 57 / Friday, March 24, 1995 / Rules and Regulations

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 sitespecific 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 § 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.

§ 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.

§ 354.6 Billing and payment of fees.

FEMA will forward bills to licensees

based on the assessment methodology

set forth in § 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.

§ 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