ML20246F757
| ML20246F757 | |
| Person / Time | |
|---|---|
| Issue date: | 06/29/1989 |
| From: | Stello V NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | Carr, Roberts, Zech NRC COMMISSION (OCM) |
| References | |
| NUDOCS 8907140016 | |
| Download: ML20246F757 (42) | |
Text
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UNITED STATES 4
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WASHINGTON, D. C. 20555
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JUN 2 91989 MEMORANDUM FOR:
Chairman Zech Commissioner Roberts Commissioner Carr Commissioner Rogers Commissioner Curtiss FROM:
Victor Stello, Jr.
Executive Director for Operations
SUBJECT:
COMMISSION COMMENT ON THE FEDERAL EMERGENCY MANAGEMENT AGENCY FINAL RULE IMPLEMENTING EXECUTIVE ORDER 12657 The Federal Emergency Mana ement Agency (FEMA) has submitted to the Office of Management and Budget (OMB a final rule (Enclosure 1) implementing Executive Order 12657 (Enclosure 2), " FEMA Assistance in Emergency Preparedness Planning at Commerical Nuclear Power Plants." OMB has requested connents from the Commission on this final rule by July 12, 1989.
The preamble to the final rule includes a discussion of the comments on and the changes to the interim rule (Enclosure 3). Basically, 26 comment letters were received and minimal changes were made to the interim rule. No changes were made to 9352.27, " Federal role in the emergency response." This was the section that was worked out in discussion among the affected agencies and OMB to remain consistent with.the Executive Order and to remain within the legal constraints pointed out by the Department of Justice.
The principal changes extend the timing of FEMA decisions. Enclosure 4 describes graphically the impact of the following changes to the interim rule:
1.
In 99352.5(a) and (d),15 days were added for State and local input to the FEMA decision on whether a decline or fail situation exists.
2.
In $352.5(g), a 30-day extension, at FEMA's option, was added.
3.
In 9352.29, a 60-day appeal process was added, applicable to both the FEMA decision on the licensee certification and the FEMA decision on whether to conmit Federal resources.
However4 under 9352.24(a), FEMA may provide technical assistance to the licengee' during the pendency of an appeal.
This appeal process is parallel to FEMA regulations in 44 CFR Part 350 and l
was omitted by FEMA from the interim rule by oversight.
b CONTACT:
t Edward Podolak, NRR l
492-3167 j
dg7' 8907140016 e90629 i3 4 f L ;b EUSFpg Of}3 Mary Wagner, 0GC PDR ORG 492-1683 g
g NRC FILE CENTER COPY f'
e The Comiss.oners The staff believes that FEMA's changes to the final rule are acceptable and does not recommend any Commission comments on the Federal Register notice. is a proposed response to OMB. Although the dates mandated in the Executive Order for publication of interim and final regulations, 90 and 180 days respectively, have not been met, OMB and FEMA believe that timely publica-tion of the final rule is warranted. The NRC staff members, Edward M. Podolak, Jr.,
NRR; Bernard H. Weiss, AEOD; and Mary E. Wagner, OGC, who assisted FEMA in preparing the interim rule also assisted FEMA in preparing this final rule.
bdid siglyxf by Victor SteHo. Jr.
Victor Stello, Jr.
Executive Director for Operations
Enclosures:
DISTRIBUTION:
1.
Final Rule VStello, EDO FKantor, NRR 2.
E.0. 12657 JMTaylor, ED0 CRVan Niel, NRR 3.
Interim Rule JLBlaha, EDO RJBarrett, NRR 4.
Part 352 Timelines ELJordan, EDO LJCunningham, NRR 5.
Draft letter to OMB TEMurley, NRR DFMossburg JHSrlezek, NRR MCBridgers cc: SECY SAVarga, NRR Central Files OGC FJMiraglia, NRR PDR FPGillespie, NRR ED0 R/F JGPartlow, NRR PEPB R/F FJCongel, NRR HDenton, GPA WDTravers, NRP.
FINAL RULE
- See previous concurrence x
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TECH ED
- DD:NRR
/TEM JScinto iVStello 06@urley 06ff3/89 06 89 JHSniezek 89 06/27/89 06/26/89
- EPB:DREP
- SC:EPB:DREP
- C:EPB:DREP
- D:DREP
- AD:NRR EMPodolak:lr CRVan Niel UDTravers FJCongel FJMiraglia 06/26/89 06/26/89 06/26/89 06/26/89 06/26/89
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4 The~ Commissioners - The staff believes that FEMA's. changes to the final rule are acceptable and does.not recommend any Commission comments on the Federal Register notice.
. Enclosure 5 is'a proposed response to 0MB.. Although the dates mandated in the Executive rder for publication of interim and final regulations have not been met, 90 an 180 days respectively, OMB and FEMA believe that timely publication of the fina ule is warranted. The NRC staff nembers who assisted FEMA in preparing the nterim rule also assisted FEMA in preparing this final rule (Edward M. Podo k, Jr., NRR; Bernard H. Weiss, AE0D; and Mary E. Wagner, OGC).
Victor Stello Jr.
Executive Director for Operations
Enclosures:
DISTRIBUTION:
1.
Final Rule V5ts110. EDO FKantor, NRR 2.
E.O. 12657 JMTaylor, EDO CRVan Niel, NRR 3.
Interim Rule JLBlaha, EDO RJBarrett, NRR 4.
Part 352 Timelines ELJordan, EDO LJCunningham, NRR 5.
Draft letter to OMB TEMurley, NRR DFMossburg ISniezek, NRR MCBridgers cc: SECY SA arga, NRR Central Files OGC FJM aglia, NRR PDR l
FPGi espie, NRR EDO R/F JGPar{ow,NRR PEPB R/F FJConge NRR HDenton, GPA WDTraver. NRR FINAL RULE DD D:NRR OGC EDO HS e
TEMurley JScinto VStello
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Federal Emergency Management Agency
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' Washington, D.C. 20472 JUN 201989
-MEMORANDUM FOR: Office of Information and Regulatory Affairs Office of Management and Budget W
FROM:
George W. Watson Acting General Counsel SUBJECT; Final Rule Attached for cisarance in accordance with Executive Order 12291 is ifEMA's final rule, 44 CFR 352, Commercial Nuclear Power Plants; Emergency Preparedness Planning.
FEMA has obtained informal staff clearance of the rule from the 17 agencies in the Federal response community.
Your prompt attention to final approval is requested so that FEMA can comply with section 6 of Executive Order 12657.
Attachments
',., - 4, Federal Enupcy Management Agency 44 CFR Part 352
[ Docket No. 352F)
RIN No. 3067-AB39 Emta n y Preparedness Planning Comercial Nuclear Power Plants; c
Agency: Federal Emergency Management Agency Action: Final Rule.
Summary: '1his rulemaking adopts in final fom Part 352 in Title 44 CFR Emergency Management and Assistance, Chapter 1, Federal Emergency Management Agency (FEMA), Subchapter E Preparedness. 'Ihis Part concerns licensee certification and FINA determinations, and provision of Federal 1
assistance for offsite radiological ewagercy planning and preparedness for commercial nuclear power plants under Exocutive Order 12657. 'Ihis Part respcials to a requirement in Section 6(a) of the Order that FDR issue directives and procedures to implement the Order. 'Ihis Part is intended to ensure that plans and procedures are in place to respond to radiological emergencies at cmmercial nuclear power plants under unwhoction or in operation. Part 352 consists of introductory material (Scope and Definitions) and two Subparts, A and B.
'Ihis Part was published as an interim rule (effective March 30, 1989) on February 28, 1989, in 54 FR 8512.
Subpart A: Certifications and Determinations
'Ihis Subpart establishes policies and procedures for sutuission by a ommercial nuclear power plant licensee of a certification for Federal assistance under Executive Order 12657. It contains policies and sucslures for FDR's determinations, with respect to a certification. It establishes a framework for providing Federal assistance to licensees. It also provides procedures for review and evaluation of the adequacy of licensee offsite radiological emergency plannirg and preparedness.
Su% art B: Federal Participation
'Ihis Subpart establishes policies and procedures for providing Federal assistance for offsite radiological emergency plannirq and preparedness in a situation when such assistance under E.O.12657 has been requested. It describes the process for providing Federal facilities and resources to a nuclear power plant licensee after an affimative determination on the licensee certification under subpart A.
It describes response functions which Federal agencies might provide anci the process for allocatirg responsibilities amorg Federal agencies through the Federal Radiological Preparedness Coordinatirq Committee (FRPOC) and Regional Assistance Ommittees (RACs).
Effective Date: 'Ihis final rule is effective 30 days frm date of publication in the Federal Register, and will supersede the currently 1
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effective interim rule, on that date.
For Further Information
Contact:
Craig S. Wingo, Chief, Technological Hazards Division, State ard Incal Ftupc-and Support Directorate, Federal Di=ups y Management Agency, 500 C Street, S.W. Washirgton, D.C. 20472, (202) 646-3026.
Supplementary Inform tion:
Backtrruird: An integrated approach to the developraent of offsite radiological emergency plannirg, preparedness, ard rwuse involvire licensees and State and local governments, voluntary organizations, ard the Federal Goveuuu d. is the approach most likely to provide the best protection to the public. To carry out the foregoing, FEMA is engaged in a cooperative effort with licensees ard State ard local governments ard other Federal agencies in the developunt of State and local plans ard preparedness to cope with radiological emergencies at cammercial nuclear power facilities. These activities are described in 44 CFR Part 350,
" Review ard Approval of State aid Incal Radiological Emergency Plans ard Preparedness," ard Part 351, " Radiological Emergency Planning ard Preparedness," which sets out Federal agency roles and assigns tasks for assisting State ard local governments.
In the event of an actual radiological emergency, the Federal Radiological Emergency Response Plan (FRERP) provides for the overall Federal support to State ard local governments for all types of peacetime radiological incidents including those occurrirg at nuclear power plants. The FRERP was published in the Federal Register on November 8,1985, (50 FR Part 46542).
Executive Order 12657 was issued to ensure that adequate offsite radiological emrgency plannirg ard preparedness is in place at commercial nuclear power plants to satisfy the emergency plannirs requirements of the NRC for the issuance and retention of operating licenses. The Order applies to those situations where State ard local governments, either
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individually or together, decline or fail to prepare cxmnercial nuclear power plant offsite radiological emergency preparedness plans that are sufficient to satisfy the NRC licensirq requirements or to participate adequately in the preparation, demonstration, testing, exercise, or use of such plans.
This regulation supports the amerdments made to NRC's rule,10 CFR 50.47(c) (1) ard 10 CFR Part 50, Appendix E, Section IV.F., effective n w +'=v 13, 1987, (52 FR 42078) for those situations where State ard local l
governments decline or fail to participate in radiological emergency
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planning ard preparedness.
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l In u.unection with nuclear power plant licensirg, FDR has previously I
entered into a Memorardum of Urderstardire (MOU) on planning ard
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preparedness (50 FR 15485, April 18, 1985) with the imC, under which FD%
will furnish =wnts, findirgs, ard determinations as to whether offsite emergency plans ard preparedness are adequate ard continue to be capable of implementation (e.g., adequacy ard maintenance of procedures, l
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training, resources, staffing levels and qualification, and equipnent
% w'y). Dese ae"-is, findings, and determinations will be used by the NRC in wusction with its own licensing and regulatory res-e-
I possibilities. FDR will support these assessments, findings, and determinations in the NRC licensing process and related administrative and court pv CMings (See 10 CFR Part 50).
%e Dcecutive Order makes provision for FDR, to the extent permitted by law, to obtain full reimbursement either jointly or severally for services performed by FDR or other Federal agencies pursuant to E.O.12657 frm any affected licensee and frun any affected, non-participatire or inadequately participating State and local government. S e policy and procedures for the reimbursement process will be covered in separate regulations published in the Pladeral Register.
Discussion of m m is on interim rule: As no proposed rule was published, FDR requested that w nats on the interim rule be subnitted by May 1, 1989, with an indication that these w= sits would be reviewed and, as appropriate, amendments made.
Wenty-six written communications were received and have been placed in the Docket. Of these, 6 were frm utility conpanies; 5 were frm interest groups (e.g., citizen groups, enviwnmenL21 groups, and utility associations); 10 were fra State governments, 2 were frun local governments, 2 frun Federal agencies, arc 1 frun a member of Cuwpuss.
Eight supported the rule,12 opposed issuanon of the rule, and 6 commented on specific matters, some unfavorably, without indicating one way or the other an overall position on issuance of the rule.
A number of the comments were general in nature. These considered the basic validity or authority for promulgation of the regulation or at least a part thereof, ard certain of the premises underlying the regulation such as the raal 4am a==ntion and related issues, Federalism and " conflict of interest." Were were also a number of w=ssts directed to specific sections of the regulation. Sese specific conments will be related to the applicable section, dim 1W, and the Agency's response to the ocanments noted with supporting rationales.
As a general principle underlyiry FD%'s response to the ocxuments on this regulation, it must be understood that FDR is an independent establishment within the Executive Branch of the Govtunusit and, as such, is subject to the direction, control, and policy decisions of the President. 'Ihis is particularly the case in connection with FDR's functions under this regulation because they basically derive frun authority (Federal Civil Defense Act of 1950, as amended, and Disaster Relief and Emergency Assistance Act) which is vested in the President and delegated by him to the Director of FDR.
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A.
General C = a is
- 1. Role of FD% in the plannirn Dro ss Several wmuiers, scrne opposirg ard scxne supportirq the interim rule, expressed concerns that the rule might be applied in ways that would disrupt the status quo, i.e., under Part 350 and NRC regulations, states are able to ccrupensate for non-participation of local governmerrts and utilities are able to subnit offsite plans for FDM review. Supporters of the interim rule were concerned that the rule might be applied in a way that would hinder a licensee's own effort to develop an adequate offsite emergency plan, such as at the Shoreham nuclear power plant which was recently licensed by NRC under existing NRC and FDR procedures. Critics suggested that FD R might find existing State or local participation in offsite planning " inadequate" under the new rule without sufficient basis, thus subverting and replacirg the existing 350 process. There was general concern on the part of commenters that the new rule which covers inadequacy might affect every nuclear power plant ard foster the wention that FDR would take over all offsite planning, preparedness, and response functions.
Both existing FB% and NRC regulations and the new rule apply to situations where State or local governments " decline or fail" to participate in preparing offsite emergency plans. In some cases, the states have wensated for the lack of participation by local governments ard these plans have been reviewed by FDR urder 44 CFR 350 and found to be adequate. In two cases, those of Shoreham ard Seabrook nuclear power plants, the ut).lities have compensated for the lack of participation of State ard local governments by preparing their own offsite plans, with some technical assistarse frcxn FDR, ard subnitting them through the NRC to EUR for review. Both plars have been reviewed by FDR urder 44 CFR 350 ard the NRC-FDR 100 on plannirq ard preparedness and were fourd to be adequate. Thus, the new rule will have no adverse effect upon these firdings of adequacy. Section 352.2(c) explicitly provides that the regulation in this part does not affect the validity of e=gency preparedness developed by licensees irdeperdent of or prior to Executive Order 12657.
It is important to emphasize that FDR continues to urge State ard local governments to cooperate with NRC licensees in the development ard implementation of offsite e mrgency plans. Similarly, the NRC continues to regaire its licensees to seek the cooperation of State ard local governments to develop ard implement these offsite plans. Both agencies have stated in many forums that they view State ard local participation in the development ard implementation of offsite emergency plannirg as the l
preferred approach.
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Under the new rule, IRC licensees have arother option when State or local governments decline or fail to participate in emergency planning. The new rule provides for FDR technical assistance in the develorrent of utility
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. g prepared offsite plans and for the utility plan to be supplemented with provisicos for Federal facilities and resources under certain exceptional Circumstances.
Under the new rule, the threshold for provision of Federal technical assistance in the development of offsite plans is a FDR determination
[under 352.5(f)] after consultation with State and ruispc wible local officials, that a " decline or fail" situation exists. Given FDR's policy and belief that State and local participation in offsite planning is the preferred approach, this is a significant threshold. '1his threshold for the provision of Federal facilities and resources is a FDR determination (under Section 352.6(b)) that the licensee has made =v4=m feasible use of its own resources and it assumes that the State ard local authorities would contribute their full resources under rmliam a==tions di==M in Section 4 hereafter. If the offsite plans are still deficient, the plans can be augmented with Federal technical assistance, facilities, and resources.
Finally, FDR views the development of a utility offsite plan, either under existing regulations or the new rule, as a last resort that NRC licensees can use in their attenpt to dsc-nate under NRC's regulations that there is reasonable assurance that adequate protective measures can and will be taken in the event of an emergency.
- 2. Command and wdevl and Federalism Nues A number of ocanmenters, primarily those opposed to issuance of the rule itself, m.=nted on these matters. 'Ibese commenters also opposed issuance of Dcecutive Order 12657 and challenged it for much the same reasons they challenged the rule. At least one commenter who supported the rule replied to these critics of the rule.
'Ibe issues raised are primarily Federalism and command and control. 'Ihe former ervamms States rights and the Tenth Amendment to the U.S.
Constitution. It also involves Sec. S(c) ard (d), of the Dcecutive Order and Sec. 352.27 of the rule which states that FDR shall provide for initial Federal response activities including command and control of the off site respcawe as may be needed. 'Ihe challerge to statutory authority is basically of this function. The authority for most of the functions under the rule was not challenged.
'Ibe Federalism - States rights issue in effect argues that States and local governments rather than the Federal government have the right to determine that a particular site for a nuclear power plant is unsafe, that workable emergency plans are impossible, and that the Federal government should defer to State and local governments on this point.
It is argued that the rule is in violation of Dcocutive Order 10612 on Federalism - that in applying that Dcecutive Order site selection is a purely local matter and the Federal government should defer to States and localities.
'Ibese u.nad.s ignored the consideration that in the area of nuclear power plant radiological health and safety matters, the Atcutic Energy Act has 5
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preenpted the field ard that site selection is a Federal matter. In connection with the issuance of the interim rule FDR prepared a Federalism assessment which certificd that there was nothire in the regulation inconsistent with principles, criteria and requi muu ds stated in Executive Order 10612 and the regulation did not affect the States' ability to discharge traditional State governmental functions or other aspects of State sovereignty.
With respect to ccanand ard control, wunders shared a corcern expressed I
in one muuud, that virtually the entire Federal goveumust apparatus is j
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empowered to respord to a nuclear emergency at the behest of FD% anonirg "ccramand ard control" authorities without the State and local officials ard even apparently over their objections. A cammenter challengcd the statutory authority for this function.
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'Ihese canments focus an only a very limited segment of Federal function urder the order and rule, do not give proper cognizance to the rmlim j
ane-tion, ard fail to recognize the built in projections in the rule k
itself.
For rest functions which would be performed urder the rule such as planning, notification and warniJg, communications ard Man =ination of information, there is adequate statutory authority in Sections 201 and 502 of the Federal Civil Defense Act.
On the basis of Section 2(b)(4) of Executive Orders 12657 ard 10 CFR 50.47(c)(1)iii (part of the NRC Emergency Plannirg rule), FDR's rule l
i assunes that States ard local government will be involved in a response to an actual radiological emergency to the mvi== extent possible usire their best efforts.
'Ihe Executive Order directs ard the rule provides that FD% will consult with State ard local goverranents continually, especially when determining whether a " decline or fail" situation exists, (352.4(d)) and mobilizing a Insponse to an actual emergency (See 352.27). Section 2(b)(2) of the Executive Order states explicitly that "[FDR] shall take care not to supplant State ard local resources. FD% shall suostitute its own for those of State ard local governments only to the extent remry to campensate for the nonparticipation or inadequate participation of those gcriernments, and only as a last resort after appropriate consultation with the Governors ard responsible local officials in the affected area regarding State ard local participation." Section 5(b) of the Executive Order directs FD% to coordinate (ard turn over) the response function when State ard local governments do erarcise their authority.
'Ibe rule contemplates that FD% or other Federal agencies acting at FDR's request would assist the orderly activation of State and local goverranent resguse functions. As an example, FD% might be called on to marshal resources, such as reception centers, which cannot readily be made available without preplanning.
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- 3. Staniards ard criteria for FD% findims A number of cu..usters pointed to the lack of standards and criteria for determinations on such matters as " decline or fail," " participate adequately," ard the like.
Se standards and criteria for a review and evaluation of a licensee plan and for an analysis of whether there is a decline or fail situation or whether a State or local government is participatirq adequately in the preparation, duisMantion, testing, exercise or usirg such plans are those used in 10 CFR Part 50.47 Appendix E, and Part 70 and NURD3-0654/FDG-REP-1 Rev. 1 (November 1980) and Suppl. 1 (September 1988). A brief version of these is set out at 44 CFR 350.5. h is regulation states in Section J52.7 (Review and evaluation) that FD% will use Part 350 (44 CTR 352.7) in making firdirgs. Requirements applicable to State and local government plans are applicable to licensee plans.
- 4. Realism assunctions Several -sits challerged the appropriateness and factual validity of the realism a==tions, namely, that in the event of an actual radiological emeagucy, State and local officials will exercise their best efforts to protect the public, cooperate with the utility, and follow the utility offsite plen.
Section 2(b)(4) of Dcecutive Order 12657 provides that in carrying out its responsibilities under that Order, FD% shall assume that in the event of an actual cmergency or disaster, State ard local authorities would contribute their full resources ard exercise their authorities in accordance with their duties to protect the public, ard wculd act generally in conformity with the licensee's radiological emergency preparedness plan. Rese rmlim assumptions have been adopted by the NRC in 10 CFR 50.47 (c)(1)(ii). Their validity has been approved in a court decision (Massachusetts v. United States of America, Nuclear Reculatorv Conmission), 856 F. 2d 378, CA 1, 1988.
We FD% regulation is based on the realism assumptions addressed in 352.25(c), ard with respect to makirg determinations or conmitnent of resources under Section 352.6, the amwtions are explicitly adorfad as 352.6(c)(2).
- 5. Conflict of interest A number of commenters claimed that since the regulation provides that FD%
would both develop plans ard review and evaluate them, this would be a i
" conflict of interest." FD% is of the view that the term is neither accurate nor helpful in Mmming the matter but, for lack of a better l
term, it will be used in discussion of this subject.
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he FDR role set out in the regulation is based squamly on the D:ecutive Order. FD%'s role as evaluator derives from Sec? don 4 of the Order.
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planning function derives frtra Fection 3 In order to implement the Executive Order pursuant to Section 6, FirA must assume both roles. As dice =M elsewhere in this demarit, FDR is an executive agency
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implementing functions vested in the President and delegated by him to the Director, FDR. It has no alternative but to carry out lawful assignments made to the Director. FDR can mitigate any perceived conflicts by internal delegations within FDR so that FDR officials who develop the plans will not evaluate their cun work.
Also, it should bi ruted that the plans developei pursuant to this Part. are not FDR's plans. FDR assists licensees and State and local governments under the Executive Order only in those limited situations where a " decline or fail" situation necessitates r = a4al action. FDR also provides plannirg assistance to State ard local governments under the Part 350
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p ucess (44 CFR 350). m is process is considered correctly to be a
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cooperative effort and not a conflict of interest. W e process under Part j
352 is no different. It should also be noted that under NRC rules, FDR 1
firdig ard determinations an the adequacy of plans are advisory in character and have the status of rebuttable presumptions. Rese findirgs and determinations are not binding on the IE, which remains the sole judge as to the adequacy of plannire ard preparedness under IE regulations.
his arrarquuent is not altered in any way by this rule. All FDR firdirgs on plans developed under this Part will receive the same careful scrutiny and be subject to the same irdeperdent IE judgment as all other FDR findings and determinations. 14creover, any FDR firdirgs and determinations, includirg those submitted to the IE urder this Part, can be challerged by any State or local government or members of the general public, as parties to controversies before the IE, as outlined in IE Rules of Practice.
- 6. Due m vcds Cu.aud.ers claimed that the interim rule did not provide procedures for matelting or objectirg to FDR actions in the certification process. Se final regulation has been rodified to provide for State and local govemuit cmment on licensee certification (See Section 352.5(d)) ard to provide for an appeal to the Director, FD%, of determinations by the Associate Director (See Section 352.29).
- 7. Ad tinistrative Procedure Act A claim was made that by providirq in CFR 352.7 that in the event of an inconsistency between E.O.12657 ard 44 CPR 350, the Executive Order prevailed, FDR was amendirq 44 CFR 350 without goirs through the Administrative Procedure Act process for informal rulemaking 5 U.S.C. 553.
FDR has no intent to modify Part 350. Be standards ard eriteria set out in Section 350.5 are uncharged. In the unlikely event of an inconsistency between an Executive Order and a regulation, the Executive Order would prevail as it is the action of a higher authority; i.e., the President, while the regulation is the action of the Director of FDR. Other hu.ntars expressed cancerns on the application of the Administrative 8
Procedure Act to issuance of licenses by NRC, which is not pertinent to this rulemaking. 'Ibe effect of Part 352 in NRC prm=iirgs, is governed by NRC rules.
Another u
<=d.er objected to issuance of an interim rule without the formality of a " proposed" rule. Section 6 of Executive Order 12657 states that FDR shall issue interim and final directives and procedures implementirq the Order as expeditiously as is feasible, and in any event, shall issue interim directives and sMares not more than 90 days follcwing the effective date of this Order and shall issua final directives and sucsiares not more than 180 days following the effective date of this Order Which is November 18, 1988.
FDR continues to rely on its belief that meeting the Executive Order s w :Ai rule. As rimwillne did justify the departure frun issuance of a e
this rule is basically a procedural rule, the Administrative Procedure Act does not recpire FDR to have i=wl a proposed rule. FDR's own suc.= nares which call for a proposed rule (44 CFR 1.12) allow for an exenption in this case. Issuance of the interim rule, with request for w-.c.ud., has afforded adequate upputtanity to the public for comment.
- 8. Other u
.ute One m uiter re - arded that an on-site specific envisuur.iral inpact statement be developed as part of the certification process. In individual cases, FDR is of the view that certification acceptance would not be a major Federal action significantly affecting the quality of the human envitunwaat and that use of the National Envituutsital Policy Act (NEPA) evcass is not required under the NEPA statutes and regulation.
A housiter an the fee reimbursement provision challenged the regulatory flexibility analysis statement that the rule did not place burdens on local goveunisits. Regulatory flexibility may be an issue in fee regulations, but since that subject is not specifically addra==i in this regulation, there is no need to amend the preamble to the interim rule.
'Ihe assistance described in this Part is not Federal financial assistance described in 44 CPR 4 and, thus, does not require use of the intergovernmental review sucalare described therein.
B.
Section-specific u -uis Secticms 352.1 and 352.2 Definition and scone, turcose and acolicability Cu m sit: A commenter suggested that Subpart A begin with the Section on
" Licensee certification" and that the first two Sections be introductory.
Discussion: 'Ihis would make it clearer that the scope ard definitions sections apply to both Subparts A and B.
Re m.: Adopted as Section 352.4 herein. Also, the Table of Contents has been amerded by adding new Sections 352.3 (Purpose and scope) and 9
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352.29 (Appoal proocss).
Section 352.1 Deff.- bions Cuaiziit: 352.l(g) Incal governnent. 'Ihere were a Inraber of suggestions for additions to this listing such as public school districts and villages.
Discussion: The intent of the definition is to be as inclusive as possible as reflected in the term, "other jurisdictions," which eb me other entities cuch as school districts and villages. mis term is deemed to include all local political entities which might have a planning and response function.
Essoonse: No change.
352.l(h)
Decline or fail Cummt;. A number of ccamnents were made with respect to the definition of decline or fail, some to expand and some to contract the scope of the definition. 'Ihus, suggestions were made to delete the references to State and local inadequacies, while another u.an.cr would have added an exanple of inadequacies such as " lack of dese, Lated timely action by State or local governments" or similar evidence of fallure to perform properly.
Discussion: The Executive Order applies whenever State or local gcVeum.ad.s, either individually or tcgether, " decline or fail" to prepare emergency preparedness plans or to " participate adequately" in the preparation, demonstration, testing, exercise, or use of such plans.
he tern, " decline or fail," as used in this regulation, is intended to cover all these circumstances. FDR is of the view that the existing definition, slightly redified, is a fair reflection of the intent of the order, and that further additions or contractions would not be more accurate or ccriplete.
Response: 'Ihe words, "in a tirely manner," are added after " correct those inadequacies" to nore clearly expre.m the need for proqptness in State and local actions.
352.l(q).Ghmnand and control Oudit: A suggestio a was made that the term, " protective action re> - vdations," was more accurate and familiar to response organizations than " protective action decisions."
Discussion: It is believed that in the context of this regulation the word, " decisions," rore accurately reflects the intent of the Executive Order. 'Iherefore, no change is reqaired.
Response: No change.
352.2(a) Scope, purpose and applicability 10
Comment: As dimiecca heretofore in the general dimmion a number of the m a n iers asked about the purported lack of criteria for determinations as to "
- 1ine or fail" and " participate adequately."
Discussion: In rest cases, " decline" is rcre or less self evident. 'Ihe criteria used in evaluating a fail situation or determinirn the adequacy of participation in plannirs ard preparedness are the same criteria used in reviewirs State and local plans under Part 350. 'Ihat is IEC's Emergency Planning Rule (10 CPR Part 50.47, Appendix E ard Part 70) ard the joint FDR-NRC criteria for preparation ard Evaluation of Radiological Enuyus ry Response plans and preparedness in support of Nuclear Power Plants, NURD3-0654/FDR-REP-1, Rev.1, (November 1980) ard Suppl.1 (September 1988). See 44 CFR 350.5(a). Section 352.6 states this. 'Ihis is believed to be an adequate definition of criteria.
Response: No change 352.2 (c) Acolicability Cu m i: Two wame.dwrs wished clarification of paragraph (c) to make it clearer that the regulation should not be conued or applied to hirder a licensee's own efforts to develop response plans to the extent rewry to achieve adequate energency preparedness.
Discussion: FDR agrees that nothirg in the regulation should be construed to hirder the licensee's efforts developed under this Part or any other Part such as 350. 'Ihus, FD% should not, as suggested, develop generic plans which can be used by licensecs.
Resoonse: We believe the existirg larguage adequately expresses the m.xyt that the licensee's effort independent of this Part remains in full force ard effect, are not superceded, ard that if any further assistance urder this Part is furnished, it is supplemental.
352.4 Licensee certification Corwcri;1 A number of comnenters suggested that the regulation should irdicate how long the certification applied ard that there should be provisions to address changirg situations. Other cramments of an editorial nature were made such as what evidence the licensee should subnit to support a firdirg of decline or fail, e.g., press releases or litigation positions. Also, a suggestion was made to add the words, "or designee,"
after " chief executive officer" in paragraph a.
Additionally, a suggestion was made for the licensee to send copies of the certification to other places such as the tac Regioral Offices.
l Discussion: It would not be feasible to set out rcre specific periods of time for certification as each case varies. Obviously, there is authority to amerd or redify the certifications or other determinations at any tire.
l While press releases or litigation positions are an irdication of I
positions of State or local governments for a dmwnt such as the certificaticia, FD% is of the view there then should be formality.
11
herefore, the d~wentation should show that there has been a written request to State or local officials, with response or a lack of response in a reasanable time, for participation in plannirg, cmmit: ment of resources, or timely correction of inaduyncies. Se host FD% Regional Office distributes copies of the certification, arx1 takes the official actions with respect thereto. It should control this dimmination of documents.
merefore, there is no need for the licensee to send the certification anywhere but the host FD % Regional Office. S e suggestian to add the words, "or " designee," after " chief executive officer" is not adopted, as it is believed that a request of this magnitude should be made only at the highest level by the chief executive officer.
Response: No charge.
352.5 FD% action en licensee certification Cuma st: A number of camnents were made on this Section, particularly with respect to the time frame for actions. Sme thought the period for FDR review should be shortened or that actions or inactions should be dim'aitive of a FDR decision, such as autmatic approval if no final decision is made in 30 days. Sane desired that a timeframe be established for FD% consultation with State and local officials.
j Discussion: Suggestions to shorten the time for FDR to act in 10 days, or to n=ma if FDR does not make a final decision within 30 days the
)
certification is automatically accepted, are rejected. However, when a utility meets the requirements of the Nuclear Regulatory nmimian's (NRC) emergency planning rule (See 10 CFR 50.47 (c)(1)(i) and (ii), FDR will determine this to be dispositive.
Response: A number of modifications have been made in this Section to allcw for m uit by State and local governments and a new Section 352.29 on appeals from intere.3ted parties, applicable to this and other Sections has been added.
We FDR Associate Director will make a decision within 45 dr.ys of receipt of certification by the Regional Director. Action an an ageal will be completed within no more than 60 days after the date of the decision.
However, during an appeal FDR will provide technical assistance to a licensee.
352.6 FD% determination on the commitment of Federal facilities and resources Cu..wsit: A suggestion was made that the realism doctrine, which k. set out as an assumption upon which all resource determinations are made, should be reiterated in a number of places in Section 5 arri elsewhere.
DiscussioD: FD% is of the view that this duplication is unnunmary.
[See 352.6(c)(2) ani 352.25(c).]
Response: No charge.
12
352.6 (d) Ommitment of resources i
Coment: FDR should advise State and local authorities of the facilities and resources provided the licensee.
Discussion: FDR believes that State arxi local goveumads should be kept fully infnmad of Federal Assistance provided to licensees.
Response: 7he phrase, "the states and affected local governments," is added to the third sentence of paragraph d.
352.23. E'nctions of a Reaional Assistance Ccunittee (RAC)
Coment: A umuuder noted that this Section extended Part 351 assistance to licensees, and suggested that the RAC be able to prwide assistance prior to certification. This has been done in Shoreham and Seabrook cases already mxler Parts 350 and 351. The ccxumenter thought that Section 352.23 prer
, RAC assistance prior to such certification.
Discursion: FDR is of the view that this is an ira.unact intapretation of Section 352.23, and that assistance can be furnished prior to a certification. Paragraph (b) quite explicitly allows consultation on the rMa for facilities and resources. The present practice of RAC ceciaation in absence of State or local cooperation is pam4==ible and encouraged. Such cooperation is furnished under Parts 350 and 351 independent of the Dcecutive Order and Part 352, and will continue to be so furnished. A suggestion was made that milestones be established in the regulation for Fe:1eral agency responses in 352.23(d). These are inappropriate in a regulation but should be established as part of good management technique.
Response: No change.
352.24 Provision of technical assistance and Federal facilities arxl msowxes Cum sit: It was noted that technical assistance is referred to in 352.23 and 352.24. The difference between these uses of technical assistance resides with the intent of such technical assistance. Following a determination under Subpart A, technical assisbince is intended to be part of plan development and completion. Prior to a determination under Subpart A, technical assistance is intended to be provided to help evaluate the need for Federal assistance and Federal facilities and resources.
Response: An additional statement has been added allowing provision of technical assistance during perxlency of an appeal.
352.28 Reimbursement Cumait: Utilities ocamented that State and local governments whose non-participation in emergency planning gave rise to this situatie, should bear financial burden. Li nsees should not pay for this. Licensees 13
should not be the conduit for collecting fees frm State ad local govhauiants. Objections were made by State and localities to changing non-participating State aM local gov &4u.unts for any costs, particularly costs of services or resources provided by FDR or RACs. This was based on lack of legal authority aM lack of a request for such assistance. Also, one I
unmalter frun a locality within the EPZ, but not receivirg any services or tax benefits frun a nuclear plant, objected to possible fees a-@
against it.
Discussion: The issue of reimbursement is presently beirg considered in separate regulations on this subject, and will not be addressed in this regulation. FDR has issued a proposed regulation based on 31 USC 9701 which is specific to FDR, and not other agencies, which covers fees to be charged to utilities for FDR services and resources urder both Parts 350 and 352. Section 352.28 restates the Dcecutive Order and will not be revised.
Response: No charge.
352.29 Appeal process Cb+ sit: Cmmenters desire that there be a procedure for a State or local government or a licensee to appeal the decision made by the Associate Director concarniny a certification request by a licensee or a request for reso m %
Discussion: FDR supports the rights of State and local governments or others to appeal FDR decisions, a provision provided in Part 350.
Response: A new Section 352.29 is added.
Reculatory Flexibility Certification In accordance with the Regulatory Flexibility Act of 1980, 5 U.S.C. 605(b),
the Director has certified that this rule will not have a significant eumm-asic inpact upon a substantial number of small entities. The rule places obligations and burdens only on nuclear power plant li nsees which are large electric utility companies. These licensees are not "small entities" as set forth in the Regulatory Flexibility Act ard do rot meet the small business size standards (set forth in Small Business Administration regulations in 13 CFR 121.0). A copy of the certification ard attendant materials are available for inspection ard copy in the Rules Docket.
Envirumstal Assame:nent and Findirn of No Significant Environmental Impact.
The Director has determined under the National Envitumustal Policy Act of 2969 and FDR Regulation 44 CFR 10, " Environmental Considerations," that this rule is not a major Federal action significantly affecting the quality of the human environment. An envitu mw Aal assessment has been prepared which is available for inspection aM copyiry for a fee in the Rules 14
3
- Docket, narralatory Analysis
'Ihis rule is.not a " Major Rule" as the term is used in Descutive Order 12291 and inplanenting Office of Management and Budget (CNB) guidance. It will not have an annual effect on the econcany of $100 million or more, will rr;t result in an increase in oosts, and will not have a significant adverse 4M on ocupetition, enployment, inv L.:st, productivity, inntwaticri, or the ability of United States harmd enterprises to ocupete with foreign had enterprises in danestic or export =*Ms.
Paner Work Reduction Act l
'Ihis rule contains information requirunents that are subject to the Paper Work Reduction Act of 1980 (44 U.S.C. 3501 et seq.) and the CMB implementing regulation, 5 CFR 1320. 'Ihese requirements have been submitted to and been approved by CNB. 'Ihe CMB Number is 3067-0201 for Sections 352.4 and 352.24.
Fariavalisen har,tive Order A Federalism annamannant under E.O. '12612 has been prepared and a copy is available for inspection and copying for a fee at the Rules Docket.
T.iat of Subiects in 44 CFR 352:
Nuclear Power Plants and Reactors, Radiation Protection, Intergovernmental Relations, and Federal Assistance.
Accordingly, 44 CPR 352 is amended to read as follows.
PART 352 - 039EBC3AL NUC[ EAR POWER PIANIS: I! MERGENCE PREPAREDNESS PIANNI!G s:ar+irm 352.1 Definitions.
352.2 Scope, purpose and applicability.
9* = vt A: certificatims and nt*aminations 5:ar+im 352.3 Purpose and scope 352.4 Licensee certification.
352.5 FDR action on licensee certification.
352.6 FDR determination cri the commitment of Federal facilities and resources.
352.7 Review and evaluation.
, 9*=vt B: Federal Participation 5:ar+i m 15
352.20 Purpose ard scope.
352.21 Participatory Federal agencies.
352.22 Functions of the Federal Radiological Preparedness Coordinating Cbr:rnittee.
352.23 Functions of a Regional Assistance Ctanittee.
352.24 Provision of technical assistance ard Federal facilities and resources.
352.25 Limitation on ocnnittiIg Federal facilities and resources for emergem y p2. W.
352.26 ArraresatuLs for Federal response in the licensee offsite emergency rea.ise plan.
r 352.27 Federal role in the wa.uger4ry resporse.
352.28 Reimbursement.
252.29 Acceals Drocnss.
Authority: Federal Civil Defense Act of 1950, as amerded [50 U.S.C. App.
2251 et seq.]; Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121 et seq. ; 31 U.S.C. 9701; Executive Order 12657; Executive Order 12148; Executive Order 12127 and Executive Order 12241.
352.1 Definitions As used inh Part, the followiry terms ard wacy;Ls are defined:
(a) Associate Director means the Associate Director, State ard Incal Fwpaus ard Support, FDR or designee.
(b)
Directo_r means the Director, FD R or designee.
(c) I;EZ means Emergency Planning Zone.
(d) FD% means the Federal EmEay.axTy Management Agency.
(e) HBg means the Nuclear Regulatory nrmbion.
(f) Recional Director means the Regioral Director of FDR or designee.
(g) local covernnent neans boroughs, cities, counties, municipalities, parishes, towns, tcunships or other local jurisdictions within the plume and irgestion exposure pathway EPZs that have specific roles in emergency plannirg and preparedness.
(h) Decline or fail means a situation where State or local goverments do not participate in preparire offsite emergency plans or have significant plannify or preparedness inadequacies and have not der:anstrated the commitment or capabilities to correct those inadequacies in a ti-ely manner I
so as to satisfy NRC licensing requirements.
(i) Governor neans the Governor of a State or his/her designee.
l (j) Certification neans the written justification by a licensee of the need j
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t a;
for Federal ocupensatory assistance. This certification is required to activate the Federal assistance under this Part.
(k) Ba-maible loca1' official.means the highest elected official of an appropriate local gevu,.-=,t.
(1) Technical assistance means services provided by FDA and other Federal agencies to facilitate offsite radiological emergency planning and preparedness such as: Provision of support for the preparation of offsite radiological energency response plans and r<
twes; FBR coordination of services fran other Federal agencies; provision and interpretation of,
Federal guMance;. provision of Federal and w Laact personnel to offer-advice and zwrenarxlations for specific==r=t= of prepaM-was such as
' alert and notification and emergency public information.
(m) Fadaval facilitima and raar=Eces means perinaussl, rupaty (land, buildings, vehicles, amir= ant), and operational capabilities m>Lzulled by the Federal geva,.-=,i related to establishing and maintaining radiological y
emergency response preparedness.
- i (n) Licensee means the utility which has applied for or has received a
' license fran the NRC to operate a ocanercial nuclear power plant.'
l (o) Reimbursement means the payment to FDDVFederal agencies, jointly or severally, by a licensee and State and local geva...=ius for assistance and services provided in s m ing certifications and implementing Federal ocupensatory assistance under Part 352.
i
. (p) Host FDR Recional Office means the FDR Regional Office that has primary juriadirtion by virtue of the nuclear power plant being located within its geogroitic boundaries.
e -ar"a and control means making and issuing protative. action (q) m decisions and directing offsite e:supcy response resources, agencies, and activities.
352.2 ' Soape, purpose avut appliambility (a) This Part applies whenever State or local govuss==>ts, either individually or together, decline or. fail to prepare ocenercial nuclear power plant offsite radiological emupcy preparedness plans thr.t. are sufficient to satisfy NRC licensing requit=== ids or to participate W Mtely in the preparation, demonstration, testing, exercise, or use of such plans. In order to request the assistance provided for in this Part, an affected nuclear power plant applicant or licensee shall certify in writing to FDR that the above situation exists.
(b) The purposes of this Part are as follows:
(1) To establish policies and r - twas for the enMiamion of a licensee certification for Federal assistance under Deecutive Order 12657; (2) set forth policies and sucidares for FDA's determination to accept, accept with modification, or reject the licensee certification; (3) establish a framework for providing 17
)
)
Federal assistance to licensecs; aM (4) provide procedures for the review ard evaluation of the acla?mcy of offsite radiological emetw y plannirg c
ard preparedness. Firdirgs and determinations on offsite plannire and preparedness made urder this Part are provided to the NRC for its use in the licensirq pwc.i.:ss.
(c) 'Ihis Part applies only in instances wheru Executive Order 12657 is used by a licensee and its provisiens do Int affect the validity of the emutyercy preparedness developed by the licensee independcat of or prior to Executive Order 12657.
9*mrt A: Certificatims and n*nminations 352.3 Purcose ard Scoce
'Ihis Subpart establishes policies ard procedures for Winnion by a ccramercial nuclear power plant licensee of a certification for Federal assistance under Executive Order 12657. It contains policies and procedures for FDR's determinations, with respect to a certification. It establishes a framework for providiry Federal assistance to licensees. It also provides procedures for review ard evaluation of the adequacy of licensee offsite radiological emergency planning and preparedness.
352.4 Licensee certification (a) A licensee which seeks Federal assistance urder this Part shall submit a certification to the host FDR Regional Director that a decline or fail situation exists. 'Ihe certification shall be in the form of a letter from the chief executive officer of the licensee. 'Ihe contents of this letter shall address the provisions set forth in paragraphs (b) ard (c) of this Section.
(b) 'Ibe licerree certification shall delineate why such assistance is needed based on the criteria of decline or fail for the relevant State or local governments.
(c) 'Ibe licensee certification shall document requests to ard responses from the Governor (s) or responsible local official (s) with respect to the efforts taken by the licensee to secure their participation, cooperation, ccanitmert; of resources or timely correction of plannirg ard preparedness failurus.
[ Approved by the Office of Management and Budget (CMB) under ultrol number 3067-0201) 352+5 FDR action an licenace ocrtificaticn (a) Upon receivirg a licensee certification, the host Regional Director shall imuliately notify FD% Headquarters of the licensee certification.
Within 5 days the host Regional Director shall notify the Governor of an affected State ard the chief executive officer of any local government that a certification has been received, ard nake a copy of the certification 18 l
_ _ _ ~ _.
i-w available to such persons. Within 10 days, the host Regional Director shall acknowledge in writing the receipt of the certification to the licensee.
(b) Within 15 days of receipt of the certification, the Regional Director shall publish a notice in the Federal Register that a certification frta the licensee has been received, and that copies are available at the Regional Office for review and copying in accordance with 44 CFR 5.26.
(c) FDR F=wh=vters shall notify the NRC of receipt of the certification and shall request advice frcan the NRC on whether a decline or fail situation exists.
(d) State and local governments may submit written statements to the host Regional Director outlining their positicsi as to the facts stated in the letter of certification. Such statements shall be subnitted to FDR within 10 days of the date of notification provided to State and local govemw4t under Section CFR 352.5(a). Any such statements shall be a part of the rews.d and will be considered in arriving at re_ -. =-dations or determinations made under the provisions of this Part.
(e) The host FDR Regional Office shall provide, after consulting with State and responsible local officials, a rummorded determination on whether a decline or fail situation exis+s to the FDR Associate Direct. or within 30 days of receipt of the licensee certification.
(f) The FDR Associate Director shall make a determination on whether a decline or fail situation exists within 45 days of receipt of the licensee certification and shall advise the licensee, NRC, and State and local officials.
(g) The times for actions set out above may be extended up to an aggregate of 30 days by the host Regional Director or Associate Director, as appropriate.
352.6 FDn,b+mmiriation on the runnitment of Federal facilities and rewaratrues (a) A licensee request for Federal facilities and resources shall document the licensee's maxinum feasible use of its resources and its efforts to aa'ni the use of State and local gov &must and volunteer resources.
(b) Upon a licensee request for Federal facilities and resources, FDR bawharters shall notify NRC and request advice from the NRC as to whether the licensee has made maximum use of its resources and the extent to which
- the licensee has emplied with 10 CFR 50.47(c)(1). The host FDR Regional Director shall make a ra --. a-dation to the FDR Associate Director on whether the provision of these facilities and resources is warranted. The FDR Associate Director shall make a final determination as to whether Federal facilities and resources are paaelari.
(c) In making tne determination urder paragraph (b) of this section, FDR:
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(1) Shall wcnt actively with the licensee,.ard before' relying upcn any Federal resources, shall make==vi== feasible use of the licensee's own' resources, whicil may include agreenants with volunteer orgardzations and.
other gch--=d. entities and agencies.
(2) Shall assume that, in the event of an actual radiological emergency or riinanter, State and local authorities would contribute their full resources and exercise their authorities in accordance with their duties to protect the public and would act generally in ocnformity with the licensee's radiological emergency prepar.dr.=s plan. '
(d) 'Ihe FDIA Associate Director shall make a determination cm the need for and cxanitment of Federal facilities and raannees.. Ihe FDIA determination shall be made in consultation with affected Federal agencies and in amentlance with 44 CFR 352.21. FDIA shall inform the licensee, the States and affected local gch-rad.s. in writing of the Federal support
- whicil will be provided. 'Ihis information shall identify Federal agencies that are to provide Federal support, the extent and purpose of the support to be provided, the Federal facilities and resources to be cannitted and the limitations on their use. 'Ihe provision of the identified Federal support shall be made under the policies and prrndnws of Subpart B of this Part.
352.7 Review and evalt=*4t=
FEMA shall conduct its activities and make findings under this Part in a manner consistent with 44 CFR 350 to the extent that those procedures'are appropriate and not inconsistent with the intent ard prmeres required by E.O.12657. 'Ihis Order shall take pr-riance, and any inconsistencies shall be resolved under the suc=dures.in the NRC/FDA Memorandum of Understanding (WJU) on planning and preparedness.
9*==vt B: Pederal Berticipation 352.20 Purpose and scope
'Ihis Subpart establishes policy and prrneres for providing support for offsite radiological emergency plannirx3 and preparedness in a situation where Federal support under Executive Order 12657 (E.O.12657) has been requested. 'Ihis Subpart:
(a) Describes the suc==ss for providing Federal technical assistance to the licensee for developing its offsite errmfuq rw:ipcsie plan after an affirmative determination on the licensee certification under Subpart A [44 CFR 352.5(f)];
(b)' Describes the pb== for providing Federal facilities ard resources to the licensee after a determination under Subpart A [44 CFR 352.6(d)]
that Federal resources are recpired; (c) Describes the principal respcise functions which Federal agencies may 20
,2 be called upon to provide; (d) Describes the p -cc for allocatig rim.rrsibilities among Federal agencies for plannirq site-specific s=r acy respci=e functions; and v
(e) Prwides for the participation of Federal agencies, including the members of the FRPCC and the PACS.
352.21 Ihr+4ci,mtig Federal agerch (a) FDR may call upon any Federal agency to participate in plannig for the use of Federal facilities and resources in the licensee offsite surgercf respcree plan.
(b) FDR may call upon the followig agencies and others as needed, to prwide Federal technical assistance and Federal facilities and resources:
(1) Department of Cuuuctwi:;
(2) Department of Defense; (3) Department of Energy; (4) Department of Health and Human Services; (5) Department of Housing and Urban Development; (6) Department of the Interior; (7) Department of Trarspurtation; (8) Envisumudal Protection Agency; (9) Federal Ocxnmunications rhmnimion; (10) General Services Administration; (11) National Otmnunications System; (12) Nuclear Regulatory rw,mimion; (13) United States Department of Acri. culture; and (14) Department of Veterans Affairs.
(c) FDR is the Federal agency primarily resgisible for coordinating Federal assistance. FDR may enter into Memorandums of Understanding (MOU) and other instruments with Federal agencies to provide technical assistance arxi to arrange for the commitment and utilization of Federal facilities and resources as meny. FDR also may use a MI to delegate to another i
Federal agency, with the consent of that agency, any of the functions and duties assigned to FD%. Following review and apprwal by CEB, FDR will publish such d m mants in the Federal Register.
352.22 Functions of the Federal Radiological Preparudrs Coordinating twmnittee (UTO:')
Under 44 CFR 351, the role of the FRPOC is to assist FDR M providing policy direction for the program of technical assistance to State and local governments in their radiological suive.rcy planning and preparedness activities. Under this Subpart, the role of the FRPOC is ta provide advice to FDR regardirq Federal assistance and Federal facilities ani.-
for implementing Subparts A and B of this Part. 'Ihis assistance activity is extended to licensees. 'Ibe FRKC will assist FDR in revisire the 1
Federal Radiological Emre.cyacf Response Plan (FRERP).
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b 352.23 Functions of a Regional Assistance thmittee (RAC)
(a) Under 44 CFR 351, the role of a RAC is to assist State and local govuuuud. officials to develop their radiological emergency plans, to review the plans, and to observe exercises to evaluate the plans. UMer Subparts A and B of this Part, these techrdcal assistance activities are extended to the licensee.
(b)
Prior to a determination under Subpart A [44 CFR 352.6(d)] that Federal facilities and resources are needed, the designated RAC for the specific site will assist the licensee, as r-ary, in evaluating the need for Federal facilities and resources, in addition to providirq technical assistance under 352.23(a).
(c) In accomplishing the foregoing, the RAC will use the standards and evaluation criteria in NURD3-0654/rDM-REP-1, Rev.1 and Supp.1 1 or approved alternative approaches, and RAC Iru a rs shall render such technical assistance as appropriate to their agency mission and expertise.
(d) Followirg a determination under Subpart A (44 CFR 352.6(d)] that Federal facilities and resources are needed, the RAC will assist FD% in identifying agencies and specifying the Federal facilities and resources which the agencies are to provide.
352.24 Provision of tedmim1 assistance arrl Federal facilities arx1 resources (a) Upon a determination under Subpart A [44 CFR 352.5 (f) and 352.4(e)]
that a decline or fail situation exists, FD R and other Federal agencies will provide technical assistance to the licensee. Such assistance may be provided during the pendency of an appeal under Subpart 352.29.
(b) 'Ihe applicable criteria for the use of Federal facilities and resources are set forth in Subpart A (44 CFR 352.6(c)(1)(2)]. Upon a determination under Subpart A (44 CFR 352.6(d)) that Federal resources or facilities will be requuud, FD% will consult with the FRPCC, the RAC, the individual Federal agencies, and the licensee, to determine the extent of 4
Federal facilities and resources that the government could provide, and the most effective way to do so. After such consultation, FD R will specifically request Federal agencies to provide those Federal facilities and resources. 'Ihe Federal agencies, in turn, will respond to confirm the availability of such facilities and resources and provide estimates of i
their costs.
(c) FDR will inform the licensee in writirg of the Federal support which will be provided. 'Ihis information will identify Federal agencies which are to be ircluded in the plan, the extent and purpose of technical assistance to be provided and the FMeral facilities and resources to be 1
ocanitted, and the limitations of their use. 'Ibe information will also describe the requirements for reimbursement to the Federal government for this support.
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Copy available frun FDR Distribution Center, P.O. Box 70274 Washirgton, DC 20024 i
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e (d). FDR will coordinate the Federal effort in inplementirg the determinations made under Subpart A [44 CTR 352.5(f) and 352.6(d)] so that each Federal agency maintains the ccumitted technical assistance, 3
facilities, and resources after the licensee offsite emespcy response i
plan is coupleted. FD % and other Federal agencies will participate in i
I training, exercises, and drills, in sugort of the licensee offsite sina p cy ra:, rise plan.
(e)
In carrying out palT29taphs (a) through (c) of this Section, FDR will keep affected State ard local goveumuius informed of actions taken.
)
[ Approval by the CNB under control number 3067-0201]
352.25 Limitation on rmnitting Federal feilities and resources for
- apcy puparais ms (a) 'Ibe ccumitment of Federal facilities and resources will be made through the authority of the affected Federal agencies.
(b)
In implementing a determination under Subpart A [44 CFR 352.6(d)],
that Federal facilities and resources are r==q for eiumsgacy preparedness, FDR shall take care not to supplant State and local resources. Federal facilities and resources shall be substituted for those of the State and local goveumuis in the licensee offsite emeryv1cy response plan only to the extent r==_q to wwsate for the nonparticipation or inadequate participation of those gove.umuis, and only as a last resort after consultation with the Governor (s) and responsible local officials in the affected area (s) regarding State ard local participation.
(c) All Federal planning activities described in this Subpart will be carav+ael under the ammntion that, in the event of an actual radiological emergency or disaster, State ard local authorities would contribute their full resources and exercise their authorities in accntdance with their duties to protect the public frun harm ard would act, generally, in conformity with the licensee's offsite criapcy rewse plan.
Aua1+-,dm for Mm1 rar ame in the li -,ssee offsite==aw y 352.26 c
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r @ mse plan Federal agencies may be called upon to assist the licensee in developify a licensee offsite emergency response plan in areas such as:
(a) Arrarw#.:nts for use of Federal facilities and resources for response functions such as:
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(1) Pronpt notification of the emergency to the public; (2) Assisting in any rmony evacuation; (3) Providing reception centers or shelters and related facilities ard l
services for evacuees; I
(4) Providirq sir.rgency medical services at Federal 23 l
hospitals; and (5) Ensuring the creation and maintenance of channels of communication fran camearcial ruclear power plant licensees te & ate and local governments and to surrounding members of the public.
Arrarap==uds for transferring res se functions to State ard local (b) e govhumiaats during the respc.nse in an actual sawcy; and (c) Arrarafam:uis idlich may be reamry for FDR ocordination of the raspurse of other Federal agencies.
352.27 Baderal role in the energency response 1
In addition to the Federal migent of the licensee offsite endWcy reip se plan described in Subpart B (352.26), and after complying with E.O.12657, Section 2(b)(2), which states that FDR:
(2) shall take care not to supplant State and local resources and that FDR shall substitute its own resources for tirse of State and local govusumatus only to the extent twe=ry to wtgnate for the nonparticipation or inadegaate participation of those governments, and only as a last resort after appropriate consultation with the Governors and resy.nsible local officials in the affected area
]
regardJng State and local participation FDR shall provide for initial Federal response activities, including omnand ard u.n Lwl of the offsite response, as may be zwdM. Any Federal respurse role, undertaken pursuant to this section, shall be transferred to State and local governments as soon as feasible after the anset of an actual enw e cy.
4 l
352.28 Da h"w- >L 1
In accordance with Executive Order 12657, Section 6(d), and to the extent j
permitted by law, FDR will coortlinate full reimbursement, either jointly 1
or severally, to the agencies performirq services or furnishing resources,
]
fr m any affected licensee and frce any affected non-participating or inadequately participating State or local goveau=uit.
352.29 ADoeal orocess (a) Any interested party may amaal a determination made by the Associate Director, urder Sections 352.5 and 352.6 of this Part, by submitting to the Director, FDR, a written notice of appeal, within 30 days after issuance.
1
'Ihe a,maal is to be addressed to the Director, Federal Li&yercy Management Agency, 500 C. St., S.W., Washington, D.C. 20472. 'Ihe appeal letter shall state the specific reasons for the appeal and include documentation to support appellant arguments. 'Ibe appeal is limited to matters of record under 352.5 and 352.6.
l (b) Within 30 days of receipt of this letter, the FD% Director or
)
l designee will review the record and make a final determination on the 24 1
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e matter.
(c) Copies of this determination shall be furnished to the Appellant, the State (s), affected local goveanusits, ard the Imc.
(d) For purposes of this Section, the term " interested party" means only a licensee, a State or a local government, as defined in 352.1(g).
Dated Billing Cbde 6718-20 Julius W. Becten, Jr.
Director, FD %
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' ~4. E... 1 Federal Register / Vol.'53lNo. 228 / Wednesday," November 23,19881 Presidential Documents' 47gM
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, Executive Order 13s57 of November 18,1988
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Federal. Emergeiscy Menagement Agency Assistance. In Emergency. Preparedness Planning ' at Commercial '. Nuclear.
Power Plants l
By the' authority vested in me as President by the Constitution and laws of the Y
United States of America, including the Federal Civil Defense Act of 1950, as !
. amended (50 U.S.C. App. 2251 et seq.), the Disaster Relief Act of 1974, as -
amended (42 U.S.C. 5121 et seg.), the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seg,), Reorganization Plan No.1 of 1958, Reorganization Plan -
No.1 of1973, and Section 301 of Title 3 of the United States Code, and in order to ensure that plans and procedures are in place to respond to radiological-emergencies at commercial nuclear power plants in operation or under con-
. atruction,it is hereby ordered as follows:
Section 1. Scope. (a) This Order applies whenever State or local governments '
either individually or together, decline or fall to prepare commercial nuclear power plant radiologicaiemergency preparedness plans that are sufficient to satisfy Nuclear Regulatory Commission ("NRC") licensing requirements or to participate adequatel
., use of such plans.. y in the preparation, demonstration, testing, exercise (b) In order to request the assistance of the Federal Emergency Management Agency (" FEMA") provided for in this Order, an affected nuclear power plant -
' applicant or licensee (" licensee") shall certify in writing to FEMA that the,
situation described in Subsection (a) exists.
Sec. S. Generally Applicable Principles and Dimetives. (a) Subject to the principles articulated in this Section, the Director of FEMA is hereby author-1:ed and directed to take the actions specified in Sections a through a of this Order.
(b)la carryireout any ofits responsibilities under this Order FEMA:
(1) shall work actively with the licensee, and, before relying upon its resources or those of any other' Department or agency within the Executive branch, shall nake maximum feasible use of the licensee s resources:
(2) shall take care not to supplant State and local resources. FEMA shall substitute its own resources for thoss of the State and local governments only to the extent necessary to compensate for the nonparticipation or inadequate participation of those govemments, and only as a last resort after appropriate consultation with the Governors and responsible local officials in the affected area regarding State and local participation; (3) is authorized, to the extent permitted by law, to enter into interagency Memoranda of Understanding providing for utilit:stion of the resources of ether Executive branch Departments and agencies and for delegation to other Executive branch Departments and agencies of any of the functions and duties assigned to FEMA under this Order; howeven, any such Memorandum of Understanding shall be subject to approval by the Director of the Office of Management and Budget ("OMB") and published in final form in the Federal Register;and (4) shall assume for purposes of Sections 3 and 4 of this Order that. In the event of an actual radiological emergency or disaster, State and local authori-ties would contribute their full resources and exercise their authorities in
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- dnInday' Nrvember 23,1988 /
7 presidenti:I Documents -
W accordance with their duties te protect the public from harm and would act
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generally in conformity with the licensee's radiological emergency prepared-ness plan.
(c) The Director of OMB shall resolve any issue concerning the obligation of' Federal funds arising from the implementation of this Order. In resolving issues under this Sub,ection, the Director of OMB shall ensure:
1 L
(1) that FEMA has utihzed to the maximum extent possible the resources of
. the licensee and State and local governments before it relies upon its appro-priated and lawfully available resources or those of any Department or agency in the Executive branch:,, f,;
(2) that FEMA shall use its existing resources to coordinate and manage,'
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rather than duplicate, other available resources: -
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j (3) that implementation of this Order lo accomplished with an economy of resources; and... i n '
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(4) that full reldbursemSt to 'the Federal Government is provided, to the extent permitted bylaw.. h, ',,.
'Sec. S. FEMA hurticipatiour in E.
.. ianning shallinclude advice technical -
preparedness Planning. (a) FEMA assistance in ereersency preparedness p assistance, and arrangements for facilities and resources as needed to satisfy '
the emergency planning requirements under the Atomic Energy Act of19M as amended, and any other Federal legislation or regulations pertaining to issu-ance or retention of a construction permit or an operating license for a nuclear
_ powerplant.
(b) FEMA shall make all necessary plans and arrangements to ensure that the Federal Government is prepared to assume any and all functions and under-takings necessary to provide adequate protection to the public in cases within the scope of this Order. In making such plans and arrangemaats.
(1) FEMA shall focus planning of Federal response activities to ensure that:
(A) adequate resources and arrangeme'at's will exist, as of the time when an faitial response is neede ven the absence or inadequacy of advance State andlocal commitments; (B) attention has been given to coordinating (including turning over) response functions when State and local governments do exercise their authority, with specific attention to the areas v ere prior State and local participation has k
beeninsufficient orabsent; (2) FEMA's planning for Federal participation in responding to a radiological emergency within the scope of this Order shallinclude, but not be limited to.-
arrangements for using e.xisting Federal resources to provide prompt notifica-tion of the emergency > the general public; to assist in any necessary evacuation: to provide reception centers or shelters and related facilities and services for evacuees; to provide emergency medical services at Federal hospitals, including those operated by the military services and by the Veter-ans* Administration; and to ensure the creation and maintenance of channels of communication from commercial nuclear power plant licensees or appli-cents to State and local governments and to surrounding members of the public.
Sec. 4. Evoluotion of Plans. (a) FEMA shall consider and evaluate all plans developed under the authority of this Order as though drafted and submitted by a State orlocalgovernment.
(b) FEMA shall take'all actions necessary to carry out the evaluation referred to in the preceding Subsection and to permit the NRC to conduct its evaluation of radiological emergency preparedness plans including, but not limited to, planning, participating in, and evaluating exercises, drills, and tests. on a timely basis, as necessary to satisfy NRC re off-site radiological emergency preparedness.quirements for demonstratioris o O
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,j Federal Register / V:1. 53. Na 226 / W1dnesdry. November 23. 1988 / Presid:ntial P+1==ents'4
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.F 8ec. 3. Response to o RadiologicalEneigency. (a) la the ewent of an actual radiological emergency or disaster. FEMA shall take all steps necessary to ensure the implementation of the plans developed under tids Order and shall-coordinate the actions of ather Federal agencies to acidere the maximum
- effectiveness of Federal efforts in responding to the emergemqr.
(b) FEMA shall coordinate Federal response activities to ensare that adequate resources are directed, when an initial response is needed, to activities 1
hindered by the absence or inadequacy of advance State and local commit-J ments. FEMA shall also coordinate with State and local governmental authori-ties and tum over response functions as appropriate when State and local.
gavemments do exercise their authority.
(c) FEMA shall assume any necessary command-and.castrol function.'or delegate such function to another Federal agency, in the event that no competent State and local authority is available to perform such function.-
I
'(d) In any instance in which Federal personnel mey be caBed upon to fill a command-and-control function during a radiological emergency, in addition to any other powers it may have. FEMA or its designee is askhorized to accept volunteer assistance from utility employees an.d other nongovernmental per.
sonnel for any purpose necessary to implement the emergency response plan and facilitate off-site emergency response.
'Sec. s. Ingplementat/on of Order. (a) FEMA shall issue interim and final 4
directives and procedures implementing this Order as expeditiously as is
{
feasible and in any event shall issue interim directives and procedures not more than 90 days following the effective date of this Order and shallissue -
final directives and pmcedures not more than too days following the effective date of this Order.
(b)Immediately upon the effective date of this Order. FEMA shall review, and -
initiate necessary revisions of, all FEMA regulations. directives, and guidance to conform them to the terms and policies of this Order.
(c)Immediately upon the effective date of this Order. FEMA shall review, and initiate necessary renegotiations of, all interagency agreements to which FEMA is a party, so as to conform them to the terms and policies of this Order.
This directive shall include, but not be limited to, the Federal Radiological Emergency Response Plan (50 Fed. Res. 46542 (November a.1985)).
(d) To the extent permitted by law. FEMA is directed to obtala full reimburse-ment, either jointly or severally, for services parformed by FEMA or other Federal agencies pursuant to this Order from any affected licensee and from '
any affected nonparticipating or inadequately participating State or local government. ~
Sec. 7. Amendments. %Is Executive Order amends Executive Order Nos.
11490134 Fed. Reg.17567 (October 28.1989)).12148 (44 Fed. Agy. 43239 (July so.
here))y superseded to the extent that they are inconsist 1979, and 12241 (45 Fed. Reg. 64879 (September 29,1980)) and the same are b
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.f Federal Register / Val. 53. Nr. 228 / Wedn:sd:y, N:v mber 23,1988 / Presidential Documents 1
Sec. a.fudicial fieview. This Order is intended only to improve the internal management of the Executive branch, and is not intended to create any right or beneflt, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers, or any person.
Sec. 9, Effective Date. %is Order shall be effective November 18, 1988.
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THE WHITE HOUSE, T' '
In Dec. awlas November 28,1968.
Filed 11-as-et im pe) a m sed mies.n.u o
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Tuesday February 28,1989 Wa -
Part VI w
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Federal Emergency
- yy Management Agency 44 CFR Part 352 Commercial Nuclear Power Plants;
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,J 8512 Federal Register / Vol. 54, No. 38 / Tuesday. February 28, 1989 / Rules and Regulations FEDERAt. EMERGENCY process for allocating responsibilities Discussion MANAGEMENT AGENCY among Federal agencies through the On November 18,1988. the President Federal Radiological Preparedness
' ed '
$ FR 44 CFR Part 352 Coordinating Committee (FRPCC) and k'7510
- derj ncy nq R
al Assistance Committees Agency Assistance in Emergency IDocket No. 352 INT.]
I I-Preparedness Planning at Commercial C mmercial Nuclear Power Plente; Dates:This is an interim rule.It is Nuclear Power Plants."
Emergency Preparedneae Planning effective March 30,1989. However, The Executive order was issued to public comment is requested.These ensure that adequate offsite radiological AGENCY: rederal Emergency com nents should be submitted in emergency planning and preparedness is Management Agency.
writing to the address listed below no in place at commercial nuclear power ACTION: Interim rule, later than May 1.1989. Upon completion plants to satisfy the emergency planning sumuany:This rulemaking adopts a of the comment period a review of the requirements of the NRC for the new Part in Title 44 CFR Emergency docket will be made and as appropriate, issuance or retention of operating Management and Assistance. Chapter 1, amendments to the rule adopted.
licenses.The order applies to those altuations where State and local Fzderal Emergency Management POR runTHEn sNromuatioN CONTACT:
Agency (FEMA). Subchapter E Craig S. Wingo. Chief, Technological governments, either individually or Preparedness. New Part 352 concerns Hazards Division, State and loca) together, decline or fail to prepare commercial nuclear power plant licensee certification and Programs and Support Directorate determinations and provisions of Washington DC 20472,(202) 646dO28.
radiological emergency preparedness plans that are sufficient to meet NRC Federal assistance for offsite r:diological emergency planning and.
Aponess: Written comments should be licensing requirements or to participate preparedness for commercial nuclear submitted to Rules Docket Clerk, FEMA, adequately in the preparation, p:wer plants under Executive Order Room 840,500 C Street, SWa demonstration, testing, exercise or use 12657.This part responds to a Washington.DC 20472.The Docket is of such plans.
requirement in section 6(a) of the Order open for inspection and copying, during As required by section 2(b)(2) of that FEMA issue directives and normal business hours. Monday thru.
Executive Order 12657,"[ijn carrying out procedures to implement the Order.This Friday 8:30 am-5:00 pm-holidays any of its responsibilities under this pIrt is intended to ensure that plans and excepted.
order. FEMA * *
- shall take care not to P'{'g9 pjacij a 'po d '
d an on erdal suPPLKutNTARYINFORuATIOst '
supplant State and local resources.
nuclear power plants in operation or Back8 und fo. those of the State and local under construction. Part 352 consists of two Subparts. A and B.This rulemaking An integrated approach to the governments only to the extent was developed by an FEMA / Nuclear development of offsite radiological necessary to compensate for the Regulatory Commission (NRC) staff task emergency planning, preparedness and nonparticipation or inadequate Participation of those governments, and force.
response involving ifcensees and State -
only as a last resort after appropriate and local governments, voluntary consultation with the Governors and Subpart A: Certifications and organizations and the Federal responsible local officials in the affected Determinations Government is the approach most likely - ama agarding State and local This Subpart establishes policies and to provide the best protection to the participation.
procedures for submission by a pblic.To carry out the foregoing. FEMA Executive Order 12657 direc,ts FEMA commercial nuclear power plant is engaged in a cooperative effort with to undertake three basic functions in a licensee of a certification for Federal licensees and State and local
. decline orfall circumstance:(1)To assistance under Executive Order 12657. governments and other Federal agencies assist the licensee in the development of It contains policies and procedures for to the development of State and local an emergency re8ponse plan:(2) to FEMA's determination, with respect to a plans and preparedness to cope with participate in the testing and other certification. It establishes a framework radiological emergencies at commercial activides designed to ensure that the for providing formal Federal assistance nuclear power facilities.These activities P an can be effectively implemented in l
to licensees. It also provides procedures are described in 44 CFR Part 350, the event of an emergen and (3) to for review and evaluation of the d
f d
Prepare for and to undertake. If adequacy of licensee offsite radiological 1,oca Radiolo ic 1 e gen P sand Dece8sary. An perational role in smergency planning and preparedness.
Preparedness" and Part 351.
responding to an emergency. An Subpart B: Federal Partic4ation
" Radiological Emergency Planning and undertaking by TEMA of the first two of This Subpart establishes policies and Preparedness." which sets out Federal those functions is not dependent on a agency roles and assigns tasks for request from State or local government procedures for providing Federal-assisting State and local governments.
off cials. As recognized in this support for offsite radiological emergency planning and preparedness In the event of an actual radiological regulation (44 CFR 352.5(c)(2)), the in a situation when such support under emergency, the Federal Radiological
" realism doctrine" assumes that in the E.O.12057 has been requested. It Emergency Response Plan (FRERP) event of an actual radiological
)
describes the process for providing provides for the overall Federal support emergency State and local officials will Federal facilities and resources to a to State and local governments for all make their best efforts to protect the nuclear power plant licensee after an types of radiologicalincidents including public, including requesting Federal l
r_ffirmative determination on the those occurring at nuclear power plants. assistance if necessary. FEMA's licensee certification under Subpart A.It The FRERp was published in the Federal operational function in the event of an describes response functions which Register on November 8.1985 (50 CFR emergency is premised on the " realism Federal agencies might provide and the Part 46542).
doctrine."
)
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lL' Federal Register / Vol. 54. No. 38 / Tuesday. February 28, 1989 / Rules and Regulations 8513 Upon certification in writing to FEMA activities under 44 CFR Part 352 in a functions and undertakings necessary to by a licensee of non-participation or manner consistent with 44 CFR Part 350 provide adequate protection of the inadequate participation by State or to the extent those policies and public in cases within the scope of this local governments, the Director of procedures are appropriate and not Executive order.In the event of an FEMA is authorized to take actions to inconsistent with the intent of Executive actual emergency. FEMA will coordinate provide the appropriate Federal Order 12657. Any apparent with the State and local governmental cssistance.
inconsistencies or incongruities between authorities and undertake offsite This regulation supports the the "350 process" and the review and response functions as may be needed.
cmendments made to NRC's rule.10 evaluation under 44 CFR Part 352 shall FEMA will transfer such functions to CFR 50.47 (c)(1) and 10 CFR Part 50.
be resolved through the FEMA /NRC State and local governments when they Appendix E.SectionIV.F effective stering committee within the framework exercise their authority and related December 13.1987. (52 FR 42078) for of the NRC/ FEMA MOU.
response functions.
those situations where State or local Federal policies and procedures for The Executive order also requires governments decline or fall to ensuring that plans and procedures are FEMA to assume any necessary participate in radiological emergency in place to respond to radiological
. command and control function, or to planning and preparedness.
emergencies at commercial nuclear delegate It to another Federal agency,in in connection with nuclear power power plants are covered by several the event that no competent State and I
plant licensing. FEMA has previously existing documents. In addition to the local authority is available to perform cntered into a Moorandum of FEMA and NRC regulations, the NRC/
such function. Federal planning for this Understanding i OU) (50 FR 15485.
FEMA MOU on planning and contingency will beiccommodsted in April 18.1985) with the NRC. under preparedness and the FRERP. these the next revision of the Federal I
which FEMA will furnish assessments documents include:The joint FEMA /
Radiological Emergency Response Plan.
cnd findings and determinations as to NRC " Criteria for Preparation and The Executive order makes provision whether or not offsite emergency plans Evaluation of Radiological Emergency for FEMA. to the extent permitted by cnd preparedness are adequate and Response Plans and Preparedness in law, to obtain full reimbursement for continue to be capable of Support of Nuclear Power Plants" services performed by FEMA or other implementation (e.g., adequacy and
[NUREG-0054/ FEMA-rep-1 Rev.1.and Federal agencies pursuant to E.O.12657 maintenance of procedures. training.
Supp.1) and the NRC/ FEMA MOU for from any affected licensee and from any resout 's. staffing levels and incident response.Except for affected, non-participating or qualification and equipment adequacy).
Supplement 1. these documents pertain inadequately participating State and nese assessments, findings and to situations where State and local I al Th I
d determinations will be used by the NRC governments participate in radiological procchu e I
r e reirnb nt in connection with its own licensing and emergency planning and preparedness.
crocess will be covered in a separate regulato responsibilities. FEMA will Those policies and procedures pertain t regulation to be published in the Federal support ese assessments findings and situations in which State and local j
Reds I
determinations in the NRC licensing governments participate adequately in eet on 6 of Executive Order 12657 process and related administrative and the emergency planning process and states that FEMA shallissue interim and court proceedings (See 10 CFR Part 50).
have produced response plans which final directives and procedures l
FEMA's p'rocedures for processing meet NRC licensing requirements. In implementing the order as expeditiously I
sed making determinations on licensee those instances. Federal agencies dl certification requests under this provide assistance directly to the State
{s s)e sj anh p d res i
nt di ecti regulation are described as followsf and local governments. Supp.1 to not more than 90 days following the Upon receipt of a licensee certification.
NUREG-0654 applits to utility plans effective date of this order and shall FEMA will evaluate the certification as only.
Issue final directives and procedures not to whether it meets the criteria of This regulation identifies a -
- decline or fall" as used in section 1(a) mechanism for consulting with Federal more than 180 days following the i
effective date of this order which is of Executive Order 12657. Upon an agencies as participants in the Noveniber 18,1988.
affirmative determination. FEMA will proceedings of the FRPCC and the RACs begin providing advice to the licensee. A which were established by 44 CFR Part in order to meet these deadlines, separate FEMA evaluation will focus on 351. Such consultations address the best FEMA is issuing this regulation as an the licensee's request for Federal way to apply Federal facilitics and interim rule with a request for pubhc facilities and resources.
resources.The fanctions of the FRPCC comment instead of issuing a proposed if an affirmative determination is and the RACs are expanded to include rule with request for comment followed enade that Federal facilities and providing advice to FEMA regarding by a final ru.e. Meeting executive order resources are needed, then FEMA will provision to and use of Federal technical deadlines is considered good cause for initiate actions to provide these facilities assistance, facilities, and resources by not issuing the rules as a proposed rule and resources under Subpart B. During affected licensees.
with a sixty day comment period. In this process. FEM A will seek advice in the event of an actual radiological accordance with 44 CFR 1.4 (c). (e) and from the NRC as to whether or not the emergency. E.O.12657 requires FEMA to (f) such notice and public procedure is licenece has maximally utilized its take all steps necessary for ensuring the omitted as impractical or unnecessary.
resources and the extent to which the implementation of plans developed in lieu of this omission public comment licensee has complied with to CFR under the order: and to coordinate the is requested on the interim rule and 50.47(c)(1).
actions of other Federal agencies in FFA1A will conduct full rulemaking This regulation also proWdes the achieving maximum effectiveness of including review and action on the framework for FEMA's review and Federal efforts in responding to the comments to the same extent as if this evaluation of licensee offsite emergency. Planned respnnse functions were a proposed rule.
radiological emergency planning and of Federal agencies are needed to The ses! stance described in this Part i
i preparedness. Specifically. FEMA will ensure that the Federal government is is not Federal financial assistance conduct its review and evaluation prepared to assume any and all desenbed in 44 CFR Part 4 and. thus.
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k 8514 Federal Register / Vol. 54 No. 38 / Tuesday. February 28, 1989 / Rules and Regulations does not require use of the federalism Executive Order (c) EPZ means Emergency Planning e
Zone.
i intergovernmental revi w procedure A Federalism assessment under E.O.
l descr! bed therein.
(d)TEMA means the Federal 12612 has been prepared and a copy is Reguistory Flexibility Certification available for inspection and copying for Emergency Management Agency.
(e)NRCmeans the Nuclear a ee at the Rules Docket.
l In accordance with the Regulatory Regulatory Commission.
Flexibility Act of 1980. 5 U.S.C. 605(b),
IJat of Subjects in 44 CFR Part 352 (f)Regiono/ Director means the Regional Director of FEMA or designee.
the Director has certified that this rule 1
1 d
will not have a significant economic re istic p ti tergove e tal (g) m governmentmeans boroughs, cities, counties, municipalities, parishes, impact upon a substantial number of relations and Federal assistance-towns, townships or other local small entities.The rule places Acc rdingly, Subchapter E Chapter 1 jurisdictions within the plume and obligations and burdens only on nuclear Title 44. Code of Federal Regulations is ingestion exposure pathway EPZe that power plant licensees which are electric utility companies dominant in their amenged by adding Part 352-have specific roles in emergency planning and preparedness.
service areas.These licensees are not PART 352-FEDERAL EMERGENCY (h) Decline orfallmeans a situation
small entitles" as set forth in the MANAGEMENT AGENCY ASSISTANCE where State orI al governments do not 1
Regulatory Flexibility Act and do not IN EMERGENCY PREPAREDNESS meet the small business size standards PLANNING ATCOMMERCIAL participate in preparing offsite emergency plans or have significant
[ set forth in Small Business NUCLEAR POWER PLANTS Administration regulations in 13 CFR planning or preparedness inadequacies Part 121.] A copy of the certification, subpart A--certmcanons and and have not demonstrated the end attendant material is available for Determinanons commitment or capabilities to correct those inadequacies so as to satisfy NRC j
inspection and copying in the Rules sec.
Docket.
352.1 Dennitions.
licensing requirements.
352.2 Scope, purpose and applicability.
(i) Governormeans the Governor of a Environmental Assesement and Finding 352.3 ucensee certification.
State or his/her designee of No Significant EnvironmentalImpact 852.4 FEMA action on licensee certification.
[]) Certificollon means the written 352.5 FEMA determination on the justification by a licensee of the need for The Director has deterrained under commitment of Federal facilities and the National Environmental Policy Act Federal compensatory assistanco. This wwurces.
certification is required to activate the of1969 ang! FEMA Regulation 44 CFR 352.0 Review and evaluation.
Federal assistance under this Part.
Da s ru e nt ma Fe eral Subpart s--Federal Parucipation (k)Responsiblelocolo icialmeans aetion algnificandy affecting the quality 352.20 Purpose and scope.
the highest elected offici ofan 352.21 Participa Federal agencies.
appropriate local government.
of the huraan environment.Therefore.
s52.22 Funuions the Federal Radiolog! cal (I) Technicalassistance means an environmental impact statement is Preperednen Coordinating Committee services provided by FEMA and other l
not required. In support of this finding, (FRPCG Federal agencies to facilitate offsite I
an environmental assessment has been 352.23 Fonctions of a Regional Assistana radiologicaleme3ency planning and 1
i prepared which is available for Committu (RAG preparedness suc as: Provision of inspection and copying for a fee in the 352.24 Provision of technical assistance and Rules Docket.
Federal facilities and resources.
aux > ort for the preparation of offsite 352.25 umitation on committing Federal railiological emergency response plans Regulatory Analysis facilices and resources for amergency and procedures: FEMA coordination of preparedness.
services from other Federal agencies:
This rule is not a major rule as the 352.26 Arrangements for Federal response provision and interpretation of Federal term is used in Executive Order 12291 in the Ucensee Offsite Emerger4 guidance; provision of Federal and
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cnd implementing OMB guidance. it will Response Plan.
contract personnel to offer advice and not have an annual effect on the 352.27 Federal role in the emergency recommendations for specific aspects of economy of $100 million or more, will ru ponse.
preparedness such as alert and not result in a major increase in costs or 352.28 Reimbursement.
notification and emergency public f
prices to consumers, individual Authority:FederalCivilDefense Act of ggn,,ma6on.
industries, Federal, State or local gas amend d 5
s e,R ief nd I"II#d8##I[#CIIIII####d#########
U8
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g r.s egencies, or geographic regions and will Emerseney Assistance Act. 42 U.S.C. s121 et means personnel, property (land, not have a significant adverse impr.ct on seg.: at U.S C. s'o1 et segg Executive order buildings, vehicles. equipment), and
]
competition. employment. investment.
12a57; Executive Order 1216a:Execuuve operational capabilities controlled by i
productivity, innovation or the ability of order 12127 and Executive Order 12241.
the Federal government related to United States based enterprises to establishing 6 and maintaining compete with foreign based enterprises Subpart A-Certifications and radiological emergency response in domestic or export markets.
Delarminations preparedness.
Paper Work Reduction Act f asta Denninons.
(n)Mensee means the uGIRy wW.h has applied for or has received a license
'This rule contains information As used in this Part, the following from the NRC to operate a commercial mquirements that are subject to the terms and concepts are defined:
nuclear power plant.
3 Paper Work Reduction Act of1980 (44 (a) Associate Directormeans the (o) Reimbursement means the i
U.S.C. 3501 et seq.) and the OMB Associate Director. State and Local payment to FEMA / Federal agencies.
I implementing regulation 5 CFR Part Programs and Support. FEMA or jointly or severally, by a licensee and i
1320. These requirements have been
. designee.
State and local governments for j
submitted to OMB for approval, and the (b) Director means the Director, assistance and services provided in l
OMB number is 3067-0201.
FEMA or designee.
processing certifications and l
l l
l I
1 Federal Register / Vol. 54. No. 38 / Tuesday. February 28, 1989 / Rules and Regulations 8525 implementing Federal cornpensatory for the relevant State or local host FEMA Regional Director shall make casistance under Part 352-governments, a recommendation to the FEAM (p) Host TEMA Regional Office means (c) The licensee certification shall Associate Director on whether the the FEMA Regional Office that has document requests to and responses provision of these facilities and primary jurisdiction by virtue of the from the Governor (s) or responsible resources is warranted.ne FEMA nuclear power plant being located local official (s) with respect to the Associate Director shed make a final within its geographic boundaries.
efforts taken by the licensee to secure determination as to whether Federal (q) Command andcontm/ means their participation. cooperation.
facilities and resources are needed.
m: ling and issuing protective action commitment of resources or timely (c)In making the determination under decisions and directing offsite correction of planning and preparedness paragraph (b) of this Section.IT.MA-cmergency response resources, agencies, failures.
(1) Shall work actively with the cnd activities.
I Appmved by the O!! ice of Management and licensee, and before relying upon any Budget under control number 3007-0231)
Federal resources, shall ma,ke maximum 5 352.2 Scopa, purpons and appncatstity.
- furce, helude F N **50aca8c*a***
(a)Ris Part applies whenever Siste
$8cauom or local governments either individually agreements with volunteer organizations or together, dechne or fail to prepare (a) Upon receiving a licensee and other government entities and c mmercial nuclear power plant offsite certification. the host Regional Director e8encies' r diological emergency preparednen shallimmediately notify FEMA (2) Shall assume that,in the event of pt na that are sufhcient to satisfy NRC Headquarters of thelicensee an actual radiological emergency or licensing requirements or to participate certification. Within 10 days, the host disaster, State and local authorities cdequately in the preparation.
Regional Director shall acknowledge in would contribute their full resources and d remonstration, testing, exercise. or use writing the receipt of the certification to exercise their authorities in accordance cf such plans. In order to request the the licensee.
casistance provided for in this Part an (b) Within 15 days of receipt of the with their duties to protect the public cffected nuclear power plant applicant certification, the Regional Director shall from harm and would act generally in er licensee shall certify in writing to publish a notice in the Federal Register conformity with the licensee s FEMA that the above situauon exista.
that a certification frorn the licensee has radiological emergency preparedness I
P AS been received, and that copies are (b)The purposes of this Part are as f;110ws:(1) To establish policies and avallable at the Regional OfSce for (d)The FEMA Associate Director procedures for the submission of a
"I'W and Copying in accordance with shall make a final determination on the 44 CFR 5.20.
need for and commitment of Federal licersee certification for Federal cssistance under Executive Order 12657 (c) FEMA Headquarters shall notify facilities and resources. The FEMA (21 set forth policies and procedures for the NRC of receipt of the certification determination shall be made in FEMA's dete:rmination to accept, acmpt and shall request advice from the NRC consultation with affected Federal on whether a decline or fall altuation agencies and in accordance with 44 CFR with modification or relect the licensee 352.21. FEMA shan inforrn the licensee exists.
c:r'ification. (3) estabush a framework (d) The host FEMA Regional Office in writing of the Federal support which for providing Federal assistance to shall provide, after consulting with State will be provided. This information shall licensees and (4) provide procedures for the review and evaluation of the and responsible local officials, a identify Federal egencies that are to recommended determination on whether provide Federal support, the extent and edequacy of offsite radiological a decline or fall situation exists to the purpose of the support to be provided.
amergency planning and preparedness.
Findings and determinations on offsite FEMA Anociate Director within 7.0 days the Federal facilities and resources to be of receipt of the licensee certification, committed and the limitations on their ph:nning and preparedness made under (e) The FEMA Associate Director use.The provision of the identified this Part are provided to the NRC for its shall make a final determination on Federal support shall be made under the oe in the licensing process.
whether a decline or fail situation exists policies and procedures of Subpart D of (c) This Part applies only in instances within 30 days of receipt of the licensee this Part.
where Executive Order 12657 is used by certWicadon and shall advise the 3 352.s Revnew and evatustlorL o licensee and its provisions do not g C["sy NRC, and State and local
[g cffect the validity of the emergency preparedness developed by the licenses snake findings under this Part in a independent of or prior to Executive 1 352.5 FEMA determination on the manner consistent with 44 CFR Part 350 Order 12657.
commftment of Federal feemtles and to the extent that those procedures are appropriate crid not inconsistent with
$ 352.3 Ucensee cert!fication.
(a) A licensee request for Federal the intent and procedures required by (s) Alicensee whlch seeks Federal facilities and resources shall document E O.12657. This order shall take
.a$1 e reso ed under 8
8 C'
8 I
'C 8 8 to.e ures ctor a a d el ne I i ua i ndI 8 8 V'fnment8Dd in the NRC/ FEMA MOU on plannittg exists.The certifiestion sha!! be in the
[vo g,e e E
form of a letter from the chief executive (b) Upon a licenseeIequest for officer of the licensee.The contents of Federal facilities and resources. FEMA Subpart B-Federal Part cipst on this letter sha!! address the provisions headquarters shall notify NRC and
)
set forth in paragraphs (b) and (c) of this request advice from the NRC as to i 352.20 Pepose sind a,copa.
Section-whether the licensee has made This Subpart establishes policy and (b) The licensee certifiestion shall maximum use of its resources and the procedures for providing support for delineate why such assistance is needed entent to which the licensee has offsite radiological emergency planning based on the criteria of decline or fall complied with to CFR 50.47(c)(1).The and preparednen in a situsticn where l
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I y'
8516 Federal Register / Vcl. 54. No. 38 / Tu:sday. Februtry 28, 1989 / Rules an.1 R gulations Federal support under Executive Order functions and duties ansigned to FEMA set forth in Subpart A (44 CFR 352.5(c) 12057 (E.O.12657) has been requested.
Following OMB review and approval.
(1) and (2)).Upon a determination under This Subpart:
FEMA will publish such documents in Subpart A (44 CFR 352.5(d)) that Federal (a) Describes the process for providing the Federal Register, resources or facilities will be required.
Federal technical assistance to the FEMA will consult with the IRPCC, the licensee for developing its offsite F'm* *' W RAC, the individual Federal agencies, I8 F
h a
C and the licensee to determine the extent emergency response plan after en Committee (FPtPCC).
of Federal facilities and resources that affirmative determination on the Under 44 CFR Part 351. the role of the the government could provide, and the licensee certification under Subpart A FRPCGs to assist FWA in proddi.y most effective way to do so. After such (44 CFR 352.4 (d) and (e));
(b) Describes the process for
{C g ',
dlocal consuhation. FEMA wul specHicaDy
- c on an e request Federal agencies to provide providing Federal facilities and governments in their radiological those Federal facilities and resources, resources to the licensee after a lannh d
d determination under Subpart A (44 CFR fgQdes Under tNs Subp e role of The Federal agencies.in turn, will 352.5(d)) that Federal resources are the FRPCCis to provide advice to FEMA respond to confirm the avanability of such facilities and resources and required; Federal assistance and regardi7acilities and resources for provide estimates of their costo.
(c) Describes the principal response Federal functions which Federal egencies may implementing Subparts A and B of this (c) FEMA willinform the limnsee in be called upon to provide:
Part.This assistance activity is writing of the Federal support which will (d) Describes the process for extended to licensees. The FRPCC will be provided.This information will allocating responsibuities among assist FEMA in revising the Federal identify Federal agencies which are to Federal agencies for planning site-Radiological Emergency Response Plan be included in the plan, the extent and specific emergency response functions:
(FRERP).
purpose of technical assistance to be and provided and the Federal facilities and (e) Provides for the participation of I *62.23 Funemens of a Notons#
resources to be committed and the Federal egencies including the members Ameistenes Commusee (RACl-I mitations of their use.The information of the FRPCC and the RACa..
(a) Under 44 CFR Part 351, the role of will also describe the requirements for a RAC is to a:sist State and local reimbursement to the Federal l 352.21 Per$cipeeng Fedwel agencies.
government officials to develop their government for this su'pport.
(a) FEMA may callupon any Federal radiological emergency plans, to review (d) FEMA will coordinate the Federal agency to participate in planning for the the plans, and to observe exercises to effort in implementing the use of Federal facilities and resources in evaluate the plans.Under Subparts A determinations made under Subpart A the licensee offsite emergency response and B of this Part, these assistanc*
(44 CFR 352.5(d)) so thet each Federal plan.
activities are extended to the licensee.
agene) maintains the committed (b) FEMA may callupon the following (b) Prior to a determination under technical assistance, faculties and agencies and others as needed, to Subpart A (44 CFR 352.5(d)) that Federal resources after the licensee offsite provide Federal technical assistance facilities and resources are needed. the emergency tesponse plan is completed.
and Federal facilities and resources:
designated RAC for the specific alte will TEMA and other Federal agencies will (1) Department of Commerce, assist the licensee, as necessary. In participate in training, exercises, and (2) Department of Defense:
evaluating the need for Federal faculties drills,in support of the licensee offa!!e (3) Department of Energy; and resources.
emergency response plan.
(4) Department of Health and Human (c) 1n accomplishing the foregoing. the (e)ln carrying out paragrapMe)
Services:
RAC will use the standards and through (c) of this Section. FEMA will (5) Department of Housing and Urban evaluation criteria in NUREG-0654/
keep affected State and local Development:
FEMA-REP-1.Rev.t.Supp.18 or governments informed of actions taken.
(6) Department of the Interior; approved alternative approaches, and (7) Department of Transportation; RAC members shallrender such (Approved by the Office of Management and
- 18) Environmental Protection Agency; technical assistance as appropriate to pudget under contml number 3067-02o1)
(9) Federal Communications their agency mission and expertise.'
I 362.25 umheen on siemmunng Fedwal Commission:
(d) Following a determination under tecismos and toeou oes ter emweeney (10)CeneralServices Administration:
Subpart A (44 CFR 352.5(d)) that Federal g w _;,
facilities and resources are needed, the (11) National Comrnunications System:
(s)The commitment of Federal (12) Nuclerar Regulatory Commission:
RAC will assist TEMA in identifying facuities and resources will be made (13) United States Department of stencies and specifying the Federal through the authority of the affected facilities and resources which the Agriculture; and Federal agencies.
(14) Department of Veterans' Affaira.
88encies are to Provide, h
a detminstion (c) FEMA is the Federal agency I 352.34 Prevlolon of technleaf meanstance under Subpart A (44 CFR 352.5(d)). that primarily responsible for coordinating and Federal teoulties and resources.
Federal facuities and resources are Federal assistance. FEMA may enter (a) Upon a detenninstion under necessary for emergency preparedness, into Memorandums of Understanding Subpart A (44 CFR 352.4(e)) that a FEMA shall take care not to supplant (MOUs) and other instruments with decline or fall situstion exists. FEMA State and local resources. Federal Federal agencies to provide technical and other Federal agencies w31 provide facilities and resources shall be assistance and to arrange for the technical assistance to the licensee, substituted for thos2 of the State and commitment and utilization of Federal (b) The applicsble criteria for the use local governments in the licensee offsite facihtles and resources as necessary, of Federal facilities and resources are emergency response plan only to the FEMA also may use a MOU to delegate extent necessary to compensate for the to another Tederal agency, with the 8 Copy evenaMe from fWA Detalbutka Coom.
Nonparticipation or inadequate consent of that agency.any of the P.O. nou rtc?t. wuMnstoe. DC acces.
participation of those governments. and
f,-
f e
Federal Register / Vol. 54. No. 38 / Tuesday February 28, 1989 / Rules and Regulations 8517 only as a last resort after consultation (3)Providing reception centers or inadequate participation of those wim the Governor (s) and responsible shelters and related facilities and governments, and only as a last resort local officials in the affected area (s).
services for evacuees; after appropriate consult'ation with the regarding State and local participation. - (4) providing emergency medical Governore and respuasiblelocal j
{c) AllFederal planning activities services at Federalhospitale; and officials in the affected ama regarding i
describedin this Subpart willbe (5) Ensuring the creation and State andlocalparticipation FEMA j
conducted under the assumption that,in maintenance of channels of 6 hall provide for initial Federal response the event of an actuelradiological communication from commercial actfvities, including command and emergency or disaster, State and local nuclear power plant hcensees to State control of the offsite response, as may cuttorities would contribute their full andlocalgovernments and to be needed. Any Federal responsa role, resources and exercise their authorities surrounding members of the public.
undertaken pursuant to this section, shal' be transferred to State and local in cocordance with their duties to (b) Arrangements for transferring protect the public from harm and would response functions to State and local governments as soon as feasible after the onset of an actual emersucy.
j cct, generally, la conformity with the governments during the response in an a
licenses e offsite emergency response actual emergency; and (c) Arrangements i353.38 Reintursement.
plan.
which may be necessary for FEMA in accordance with Executive Ordat coordination of the response of other 12857, section 6(dl. and to the extent t 352.38 W W W Federt) agencies.
permitted bylaw FEMA willcoordinate response in the Usensee Offene full reimbursement, either jointly or Emergency peeponse Penn-
$ 361.H Federal role in the emergene",
severally, to the agencies performing j
Federal agencies may be called upon reopense.
senica or furrdshing rmources, from to assist the licensee in developing a in addition to the Federalcomponent any affectedlicensee and from any licensee offsita emergency response of thelicensee offsite emergency affected non-participating or plan in areas such as:-
response plan described in Subpart B
, inadequately participating State or local (a) Arrangements for'une of Federal (1352.26), and after complying with E.O.
governmut.
facilities and resources for respones 12657, section 2(b)[2), which eistes that functions such as:
FEMA:shall take care not to supplant Deted; Febreaty as, tees.
State and local resources and that Julius W. Beaten.).,
(1) Prompt notification of the emergency FEMA shall subsmuteits omm Mrm.
to the public; for those of State and local governments (FR Doc.86 4435 Filed S-M et, a:45 am)
[2) Assisting in any necessary only to the ettent necessary to enuna come er ae.m evacuation; compensate for the nonparticipation or I
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1 DRAFT I
Ms. Pamela Barr, FEMA Desk Officer l
Office of Information and Regulatory Affairs Office of Management and Budget Room 3208 725 17th Street, N.W.
Washington, D.C.
20503
Dear Ms. Barr:
I am responding to the Office of Management and Budget's request for f
comment on the Federal Emergency Mangement Agency's final rule implementing I
l Executive Order 12657, " FEMA Assistance in Emergency Preparedr.est Planning at Commercial Nuclear Power Plants." We believe that the rule is acceptable, and we support FEMA's important efforts to implement the Executive Order.
Sincerely, Chairman l
1 l
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a