[Federal Register Volume 62, Number 8 (Monday, January 13, 1997)]
[Rules and Regulations]
[Pages 1662-1665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-718]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 150 and 170
RIN 3150-AF49
Recognition of Agreement State Licenses in Areas Under Exclusive
Federal Jurisdiction Within an Agreement State
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its
regulations to clarify that Agreement State licensees can seek
reciprocal recognition of their license from the NRC when they are
working within areas of exclusive Federal jurisdiction in Agreement
States. The amendment also clarifies NRC regulatory requirements for
reciprocity and the appropriate fees and filing procedures applicable
to Agreement State licensees operating under reciprocity.
EFFECTIVE DATE: February 27, 1997.
FOR FURTHER INFORMATION CONTACT: Hampton Newsome, Office of the General
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001,
telephone (301) 415-1623, e-mail [email protected] or Mark Haisfield, Office
of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001, telephone (301) 415-6196, e-mail
[email protected]
SUPPLEMENTARY INFORMATION:
Background
On June 18, 1996 (61 FR 30839), the NRC published a proposed rule
in the Federal Register that would clarify that Agreement State
licensees could seek reciprocal recognition of their license from the
NRC when they are working within areas of exclusive Federal
jurisdiction in Agreement States. Current regulations, subject to
certain restrictions, allow any person who holds a specific license
from an Agreement State to conduct activities permitted by that license
in non-Agreement States and offshore waters using an NRC general
license. The general license is granted under the authority contained
in 10 CFR 150.20, ``Recognition of Agreement State Licenses.'' To meet
the requirements of Sec. 150.20, a licensee must submit an NRC Form 241
at least 3 days before engaging in the activities (subject to some
exceptions as noted in Sec. 150.20). If an Agreement State licensee
does not qualify for a general license under Sec. 150.20, the licensee
must apply for and obtain a specific license to work in areas of NRC
jurisdiction.
Need for Regulatory Action
The NRC believes that there are several problems with the current
regulations in Sec. 150.20 that necessitated this rulemaking action.
First, the current regulation does not include provisions to allow
Agreement State licensees to qualify for an NRC general license when
operating in areas of exclusive Federal jurisdiction within Agreement
States. Second, there has been some confusion regarding the NRC
regulations applicable to Agreement State licensees operating in areas
of NRC jurisdiction pursuant to Sec. 150.20. Third, Sec. 150.20 does
not reference the appropriate fee requirements applicable to Agreement
State licensees who file an NRC Form 241, ``Report of Proposed
Activities in Non-Agreement States.'' Finally, there has been some
confusion regarding the filing procedures for this form.
Comments on the Proposed Rule
The Commission received one letter commenting on the proposed rule.
A copy of the letter is available for public inspection and copying for
a fee at the Commission's Public Document Room, located at 2120 L
Street, NW (Lower Level), Washington, DC.
Comment. The commenter indicated that NRC's overall system of
reciprocity is flawed because state regulatory agencies do not have
meaningful investigatory or enforcement powers to regulate licensees
operating under reciprocity. In addition, the commenter believes that
the current reciprocity system reduces the participation of citizens in
the regulatory process because the regulatory agency in this
commenter's state does not, in the commenter's view, exert adequate
regulatory authority over licensees operating under reciprocity.
The commenter also had several specific objections to the proposed
rule. The commenter indicated that this rulemaking will reduce
recordkeeping requirements because of certain language changes proposed
regarding recordkeeping at the licensee's Agreement State office. In
addition, the commenter believes that the rule will remove a variety of
requirements including existing fee requirements, the existing 3-day
advance deadline for filing with the Commission, and existing reporting
and compliance requirements applicable to radiographers. Finally, the
commenter believes that the rulemaking inappropriately broadens the
authority of NRC Regional Administrators to grant, by telephone, a
waiver of the 3-day filing requirement before starting work under the
general license.
Response. The NRC has full enforcement and inspection authority to
regulate the activities of Agreement State licensees operating under
reciprocity in areas of NRC jurisdiction. Agreement State licensees
operating under reciprocity must comply with all of NRC's regulatory
requirements. As such, the Commission believes that an appropriate
avenue for citizen access in addressing issues of reciprocity is the
NRC itself. If an individual has safety concerns about the conduct of a
licensee operating under reciprocity, that individual should contact
NRC and their concerns will be addressed through NRC's allegation
review process.
Contrary to the commenter's claims that this rulemaking involves
more than a clarification, it is noted that the proposed rule either
codifies current NRC regulatory practice (with respect to reciprocity
in areas of exclusive Federal jurisdiction) or clarifies existing
requirements applicable to licensees operating under reciprocity in
areas of NRC jurisdiction. While this rulemaking may facilitate
increased use of this general license provision, the Commission does
not view this as a concern given the full regulatory power that NRC has
over these licensees with respect to activities conducted under
reciprocity.
[[Page 1663]]
As to the commenter's specific concerns, the Commission notes that
this rulemaking will not effect the reporting requirements in
Sec. 150.20. Language in Sec. 150.20(a) has been clarified to indicate
that, in order to qualify for the general license, a person must have a
specific license from an Agreement State where the licensee maintains
an office for directing the licensed activity and for retaining
radiation safety records. These editorial changes clarify, but do not
alter any existing recordkeeping requirements. The addition of language
in this rulemaking related to fees simply serves to provide additional
notice to licensees that certain fee requirements in 10 CFR Part 170
apply to Agreement State licensees operating under reciprocity. This
rulemaking does not remove or alter existing fee requirements.
Similarly, this rulemaking does not involve any change to the
current time requirements for reciprocity filings. In most cases,
licensees must file the NRC Form 241 at least 3 days before engaging in
activities under reciprocity. However, as the proposed rule explained
in more detail, the Regional Administrator may waive the 3-day
requirement, because of an emergency or other reasons, provided the
licensee receives authorization and files the appropriate information
within 3 days. In addition, this rule does not broaden the authority
for telephone waivers of the 3-day filing requirement. While this
rulemaking does add language to indicate that a waiver may be given
``because of an emergency or other reasons,'' this addition simply
provides an example of an instance when a waiver may be appropriate. As
such, this rulemaking does not expand or otherwise change the Regional
Administrators' current discretion to grant waivers to the 3-day filing
requirement.
Finally, contrary to the commenter's assertions, this rulemaking
does not eliminate any existing requirements applicable to
radiographers operating under reciprocity in areas of NRC jurisdiction.
However, the reference to a Part 71 requirement applicable to
radiographers in the proposed rule has been eliminated in the final
rule because it is not necessary. The present rule does not alter the
requirements applicable to radiographers operating under reciprocity.
No changes in the rule have been made in response to this comment.
Minor editorial changes have been made to the rule (e.g., in
Sec. 150.20(b) the word ``valid'' in the proposed rule has been changed
to ``applicable'' and other changes have been made in this section for
clarification or grammatical purposes).
Regulatory Action
Exclusive Federal Jurisdiction
The current wording of Sec. 150.20 has created confusion for
Agreement State licensees operating in areas of exclusive Federal
jurisdiction within Agreement States. An area of exclusive Federal
jurisdiction is an area over which the Federal Government exercises
legal control without interference from the jurisdiction and
administration of State law. Areas of exclusive Federal jurisdiction
exist in both Agreement and non-Agreement States. Because the Federal
Government has sole authority over areas of exclusive Federal
jurisdiction in Agreement States, the NRC has jurisdiction over Atomic
Energy Act activities conducted in those areas. Section 150.20 contains
the notification procedures (use of an NRC Form 241) regarding general
licenses for Agreement State licensees seeking to operate in areas of
NRC jurisdiction (e.g., non-Agreement States and offshore waters).
However, Sec. 150.20 does not indicate that the NRC may grant
reciprocity to Agreement State licensees to conduct activities in areas
of exclusive Federal jurisdiction within an Agreement State. The
current regulation only authorizes a general license for activities
conducted in non-Agreement States, whether or not in an area of
exclusive Federal jurisdiction within that non-Agreement State, and
offshore waters. Despite the omission in the regulation, the NRC staff,
under current practice, permits an Agreement State licensee to operate
in an area of exclusive Federal jurisdiction within the Agreement State
if the licensee submits an acceptable NRC Form 241.
The lack of a specific reference to areas of exclusive Federal
jurisdiction has caused confusion for licensees, Agreement States, and,
occasionally, the NRC staff in interpreting the coverage of the
reciprocity provisions in Sec. 150.20. This rulemaking amends
Sec. 150.20 to provide a specific reference to areas of exclusive
Federal jurisdiction.
Regulatory Requirements Applicable to Sec. 150.20 Licensees
The specific references to other NRC regulatory requirements in
Sec. 150.20 has also been a source of confusion. According to
Sec. 150.20(b), persons operating under the general license must comply
with a variety of specific NRC regulatory requirements. However,
Sec. 150.20 does not specifically reference all NRC regulations that
are applicable to materials licensees. The revised Sec. 150.20 clearly
indicates that licensees operating pursuant to the rule's provisions
must comply with all NRC regulations applicable to materials licensees.
This amendment is consistent with the original intent of the rule.
When originally issued in 1962 (27 FR 1351; February 14, 1962),
Sec. 150.20 required Agreement State licensees to comply with ``the
appropriate provisions of 10 CFR Parts 20, 30, 31, 40, and 70'' of the
Commission's regulations. The rule required compliance with all NRC
regulations applicable to NRC materials licensees at that time. In
1965, many of the requirements in 10 CFR Part 30 were relocated to
newly created regulatory provisions in 10 CFR Parts 32, 33, 34, 35, and
36 (30 FR 8185; June 26, 1965). A conforming amendment to Sec. 150.20
was not made in response to this change. Since 1965, specific
requirements have been added to Sec. 150.20 that may have created the
impression that certain NRC requirements otherwise applicable to
materials licensees are not applicable to general licensees under
Sec. 150.20. This is not the case. It is NRC's position that Agreement
State licensees operating in areas of NRC jurisdiction pursuant to
Sec. 150.20 must comply with those regulations applicable to NRC
licensees. This amendment will clarify the applicable requirements.
Fees Imposed on Agreement State Licensees Operating Under Reciprocity
The amendment adds appropriate references to Sec. 150.20 regarding
the relevant fee requirements in 10 CFR Part 170. The fee schedule in
10 CFR Part 170 is being updated to indicate that there will be a
charge for licensee revisions to an NRC Form 241 in addition to the
initial filing fee. A clarification to an NRC Form 241 does not require
a fee. The NRC Form 241 is being revised to include, in the
instructions on the form, information concerning revisions and
clarifications.
In addition, this amendment involves a minor conforming change to
the schedule for materials fees in Sec. 170.31, ``Schedule of Fees for
Materials Licenses and Other Regulatory Services, Including
Inspections, and Import and Export Licenses,'' to clarify that the fee
requirement applies to activities conducted under reciprocity pursuant
to Sec. 150.20 regardless of the location of the activities.
Filing Procedures
The amendment also clarifies the procedures for filing an NRC Form
241 for reciprocity described in Sec. 150.20(b).
[[Page 1664]]
The clarifications include identifying what needs to be submitted,
specifying the procedure to use when an emergency filing is necessary,
and making revisions to the initial filing. These clarifications do not
impose any additional requirements on the Agreement State licensee.
Enforcement
If an Agreement State licensee fails to notify the NRC before
conducting work in an area of exclusive Federal jurisdiction, the NRC
is denied an opportunity to inspect the activity to determine that it
is being conducted safely and in accordance with NRC requirements. The
current NRC Enforcement Policy (``General Statement of Policy and
Procedures for NRC Enforcement Actions'', NUREG 1600) contains an
example in Supplement VI.C.9 of failure to submit an NRC Form 241 in
accordance with 10 CFR 150.20. Under the Enforcement Policy, this
violation is categorized at Severity Level III, which constitutes
escalated enforcement action. However, absent extraordinary
circumstances, the NRC will not take enforcement action against an
Agreement State licensee for such a violation if the licensee has
evidence that it received a determination, before beginning work, from
a Federal Agency that the area of work is not under exclusive Federal
jurisdiction. This evidence may be a written statement from the Federal
Agency that provided the determination and the date that it was
provided, or a written record made by the licensee with the name and
title of the person at the Federal Agency who provided the
determination and the date that it was provided.
Compatibility of Agreement State Regulations
The provisions in Sec. 150.20 will continue to be a Division 1 item
of compatibility. The Commission recognizes that portions of the rule
apply to matters under NRC's jurisdiction (e.g., offshore waters and
areas of exclusive Federal jurisdiction). The Agreement States should
fashion their own rules implementing this provision in a manner
consistent with their authority. The Commission is currently developing
implementing procedures for a new Adequacy and Compatibility Policy
that was approved by the Commission on June 29, 1995. The Commission
will continue to apply the current compatibility designation to
Sec. 150.20 until it gives its final approval to the implementing
procedures for the new Policy.
Environmental Impact: Categorical Exclusion
The Commission has determined that this regulation is the type of
action described as a categorical exclusion in 10 CFR 51.22(c)(1).
Therefore, neither an environmental impact statement nor an
environmental assessment has been prepared for this regulation.
Paperwork Reduction Act Statement
This rule does not contain a new or amended information collection
requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.). Existing requirements were approved by the Office of
Management and Budget, approval number 3150-0032.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless it displays a currently
valid OMB control number.
Regulatory Analysis
This final rule does not impose any new requirements or additional
costs to licensees because the rulemaking codifies current practice
that allows Agreement State licensees to work under an NRC general
license. Because the rulemaking improves the clarity and consistency of
the NRC's regulations, it will benefit Agreement State licensees
operating in areas of exclusive Federal jurisdiction.
This rule will result in a minor reduction in NRC resources
(estimated to be one-sixth of a staff year per year) currently being
expended to explain our fee schedule and to clarify for licensees and
Agreement States the conditions under which an Agreement State licensee
can operate within an area of exclusive Federal jurisdiction. NRC
resources to amend Sec. 150.20 are estimated to be about one-half of a
staff year, which is a cost effective, one-time use of resources. This
constitutes the regulatory analysis for this final rule.
Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this rule does not have a
significant economic impact upon a substantial number of small
entities.
The final rule does not impose any new requirements or additional
costs to licensees because the rule codifies current practice that
allows Agreement State licensees to work under an NRC general license.
Because this rule improves the clarity and consistency of NRC's
regulations, it will benefit Agreement State licensees operating in
areas of exclusive Federal jurisdiction.
Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement Act of
1996, the NRC has determined that this action is not a major rule and
has verified this determination with the Office of Information and
Regulatory Affairs, Office of Management and Budget.
Backfit Analysis
The NRC has determined that the backfit rule, 10 CFR 50.109, does
not apply to this final rule and, therefore, a backfit analysis is not
required, because these amendments do not involve any provisions that
would impose backfits as defined in 10 CFR 50.109(a)(1).
List of Subjects
10 CFR Part 150
Criminal penalties, Hazardous materials transportation,
Intergovernmental relations, Nuclear materials, Reporting and
recordkeeping requirements, Security measures, Source material, Special
nuclear material.
10 CFR Part 170
Byproduct material, Import and export licenses, Intergovernmental
relations, Non-payment penalties, Nuclear materials, Nuclear power
plants and reactors, Source material, Special nuclear material.
For the reasons set out in the preamble and under the authority of
the Atomic Energy Act of 1954, as amended, the Energy Reorganization
Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting
the following amendments to 10 CFR Parts 150 and 170.
PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274
1. The authority citation for Part 150 continues to read as
follows:
Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as
amended (42 U.S.C. 5841).Sections 150.3, 150.15, 150.15a, 150.31,
150.32 also issued under secs. 11e(2), 81, 68 Stat. 923, 935, as
amended, secs. 83, 84, 92 Stat. 3033, 3039 (42 U.S.C. 2014e(2),
2111, 2113, 2114). Section 150.14 also issued under sec. 53, 68
Stat. 930, as amended (42 U.S.C. 2073). Section 150.15 also issued
under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C.
10155, 10161). Section 150.17a also issued under
[[Page 1665]]
sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.30 also issued
under sec. 234, 83 Stat. 444 (42 U.S.C. 2282).
2. Section 150.20 is amended by revising paragraphs (a), the
introductory text of (b), (b)(1), and the introductory text of (c),
redesignating paragraphs (b)(2) through (b)(4) as paragraphs (b)(3)
through (b)(5), revising redesignated paragraphs (b)(3) and (b)(4), and
adding a new paragraph (b)(2) to read as follows:
Sec. 150.20 Recognition of Agreement State licenses.
(a)(1) Provided that the provisions of paragraph (b) of this
section have been met, any person who holds a specific license from an
Agreement State, where the licensee maintains an office for directing
the licensed activity and retaining radiation safety records, is
granted a general license to conduct the same activity in--
(i) Non-Agreement States;
(ii) Areas of exclusive Federal jurisdiction within Agreement
States; and
(iii) Offshore waters.
(2) The provisions of paragraph (a)(1) of this section do not apply
if the specific Agreement State license limits the authorized activity
to a specific installation or location.
(b) Notwithstanding any provision to the contrary in any specific
license issued by an Agreement State to a person engaging in activities
in a non-Agreement State, in an area of exclusive Federal jurisdiction
within an Agreement State, or in offshore waters under the general
licenses provided in this section, the general licenses provided in
this section are subject to all the provisions of the Act, now or
hereafter in effect, and to all applicable rules, regulations, and
orders of the Commission including the provisions of Secs. 30.7 (a)
through (f), 30.9, 30.10, 30.14(d), 30.34, 30.41, and 30.51 to 30.63,
inclusive, of Part 30 of this chapter; Secs. 40.7 (a) through (f),
40.9, 40.10, 40.41, 40.51, 40.61, 40.63 inclusive, 40.71 and 40.81 of
Part 40 of this chapter; Secs. 70.7 (a) through (f), 70.9, 70.10,
70.32, 70.42, 70.51 to 70.56, inclusive, 70.60 to 70.62, inclusive, and
to the provisions of 10 CFR Parts 19, 20, and 71 and subpart B of Part
34, Secs. 39.15 and 39.31 through 39.77, inclusive, of Part 39 of this
chapter. In addition, any person engaging in activities in non-
Agreement States, in areas of exclusive Federal jurisdiction within
Agreement States, or in offshore waters under the general licenses
provided in this section:
(1) Except as specified in paragraph (c) of this section, shall, at
least 3 days before engaging in each activity for the first time in a
calendar year, file a submittal containing an NRC Form 241, ``Report of
Proposed Activities in Non-Agreement States,'' 4 copies of its
Agreement State specific license, and the appropriate fee as prescribed
in Sec. 170.31 of this chapter with the Regional Administrator of the
U.S. Nuclear Regulatory Commission Regional Office listed on the NRC
Form 241 and in Appendix D of Part 20 of this chapter for the Region in
which the Agreement State that issued the license is located. If a
submittal cannot be filed 3 days before engaging in activities under
reciprocity, because of an emergency or other reason, the Regional
Administrator may waive the 3-day time requirement provided the
licensee:
(i) Informs the Region by telephone, facsimile, an NRC Form 241, or
a letter of initial activities or revisions to the information
submitted on the initial NRC Form 241;
(ii) Receives oral or written authorization for the activity from
the Region; and
(iii) Within 3 days after the notification, files an NRC Form 241,
4 copies of the Agreement State license, and the fee payment.
(2) Shall file an amended NRC Form 241 or letter and the
appropriate fee as prescribed in Sec. 170.31 of this chapter with the
Regional Administrator to request approval for changes in work
locations, radioactive material, or work activities different from the
information contained on the initial NRC Form 241.
(3) Shall not, in any non-Agreement State, in an area of exclusive
Federal jurisdiction within an Agreement State, or in offshore waters,
transfer or dispose of radioactive material possessed or used under the
general licenses provided in this section, except by transfer to a
person who is --
(i) Specifically licensed by the Commission to receive this
material; or
(ii) Exempt from the requirements for a license for material under
Sec. 30.14 of this chapter.
(4) Shall not, under the general license concerning activities in
non-Agreement States or in areas of exclusive Federal jurisdiction
within Agreement States, possess or use radioactive materials, or
engage in the activities authorized in paragraph (a) of this section,
for more than 180 days in any calendar year, except that the general
license in paragraph (a) of this section concerning activities in
offshore waters authorizes that person to possess or use radioactive
materials, or engage in the activities authorized, for an unlimited
period of time.
* * * * *
(c) A person engaging in activities in offshore waters under the
general license provided for that purpose in paragraph (a) of this
section need not file an NRC Form 241 with the Commission under
paragraph (b)(1) of this section provided that:
* * * * *
PART 170--FEES FOR FACILITIES, MATERIALS, IMPORT AND EXPORT
LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT
OF 1954, AS AMENDED
3. The authority citation for Part 170 continues to read as
follows:
Authority: 31 U.S.C. 9701, sec. 301, Pub. L. 92-314, 86 Stat.
222 (42 U.S.C. 2201w); sec. 201, 88 Stat. 1242, as amended (42
U.S.C. 5841); sec 205, Pub L. 101-576, 104 Stat 2842, (31 U.S.C.
902).
Sec. 170.31 [Amended]
4. Section 170.31 is amended by removing the phrase ``in a non-
Agreement State'' from Category 16 of the Schedule of Materials Fees.
Dated at Rockville, Maryland, this 30th day of December, 1996.
For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 97-718 Filed 1-10-97; 8:45 am]
BILLING CODE 7590-01-P
