[Federal Register Volume 59, Number 192 (Wednesday, October 5, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24652]
[[Page Unknown]]
[Federal Register: October 5, 1994]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
10 CFR Parts 2 and 150
[Docket No. PRM-150-3]
Measurex Corporation, Receipt of a Petition for Rulemaking
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; Notice of receipt.
-----------------------------------------------------------------------
SUMMARY: The Nuclear Regulatory Commission (NRC) has received and
requests public comment on a petition for rulemaking filed by the
Measurex Corporation. The petition has been docketed by the Commission
and has been assigned Docket No. PRM-150-3. The petitioner requests
that the NRC amend its regulations governing Agreement State regulation
of byproduct material to require Agreement States to notify the NRC of
all proposed and completed regulatory actions. The petitioner also
requests that the NRC amend its regulations governing rulemaking to
require the NRC to publish Agreement State notices of proposed and
completed rulemaking. The petitioner believes that these amendments
would alert NRC and Agreement State licensees of applicable Agreement
State requirements and permit them to more fully participate in the
rulemaking process.
DATES: Submit comments by December 19, 1994. Comments received after
this date will be considered if it is practical to do so, but assurance
of consideration cannot be given except as to comments received on or
before this date.
ADDRESSES: Submit comments to: Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555. Attention: Docketing and Service
Branch.
Deliver comments to 11555 Rockville Pike, Rockville, Maryland,
between 7:45 am and 4:15 pm on Federal workdays.
For a copy of the petition, write: Rules Review Section, Rules
Review and Directives Branch, Division of Freedom of Information and
Publications Services, Office of Administration, U.S. Nuclear
Regulatory Commission, Washington, DC 20555.
FOR FURTHER INFORMATION CONTACT: Michael T. Lesar, Office of
Administration, U.S. Nuclear Regulatory Commission, Washington, DC
20555. Telephone: 301-415-7163 or Toll Free: 800-368-5642.
SUPPLEMENTARY INFORMATION:
Background
The Nuclear Regulatory Commission (NRC) received a petition for
rulemaking dated April 7, 1994, submitted by the Measurex Corporation.
The petition was docketed as PRM-150-3 on April 12, 1994. The
petitioner requests that the NRC amend its regulations in 10 CFR part
150 that govern Agreement State regulation of byproduct material.
Specifically, the petitioner is seeking an amendment to 10 CFR 150.31
that will require Agreement States to notify the NRC of proposed and
completed changes to that State's regulations. The petitioner is also
seeking an amendment to 10 CFR part 2 that will require the NRC to
publish Agreement State notices of proposed and completed rulemaking in
the Federal Register.
The petitioner notes that current NRC requirements contained in 10
CFR 2.804 through 10 CFR 2.807 establish a procedure for the
publication of proposed changes, participation by interested persons,
and notification of changes, and believes that a less detailed set of
rulemaking and notification procedures is specified for Agreement
States in 10 CFR 150.31. The petitioner claims that the current
rulemaking and notification procedure contained in 10 CFR 150.31 fails
to provide a mechanism for persons located outside of any particular
Agreement State to learn about proposed changes in that State's
regulations. The petitioner believes that the legislative intent of 10
CFR 150.31 is to provide a mechanism for interested persons to
participate in the rulemaking process. However, the petitioner claims
that because there is no current notification procedure required for
Agreement States, the petitioner and other persons do not have ample
opportunity to participate in discussion of proposed rules.
The petitioner states that under both its specific license for
device distribution issued by the Agreement State of California and the
general license issued by other Agreement States, it is required to
provide generally licensed device recipients with a copy of the
applicable Agreement State regulations. The petitioner also indicates
that although it makes a substantial effort to learn of proposed
regulatory changes and to maintain current copies of NRC and Agreement
State regulations, it is not always notified of actual changes that may
directly affect it and its customers in Agreement States. The
petitioner believes that the proposed amendments to 10 CFR Parts 2 and
150 would alert NRC and Agreement State licensees to all relevant
Agreement State requirements and permit them to more fully participate
in the rulemaking process.
The NRC is soliciting public comment on the petition for rulemaking
submitted by Measurex Corporation that requests the changes to the
regulations in 10 CFR Parts 2 and 150 as discussed below.
The Petitioner
The petitioner is a manufacturer, distributor, and supplier of
service for process control sensors used by NRC licensees throughout
the United States. The petitioner states that it and its customers are
directly affected by regulations adopted by the NRC and Agreement
States. The petitioner also states that both its specific license for
device distribution issued by California, an Agreement State, and other
Agreement State licenses require it to provide generally licensed
recipients a copy of the applicable Agreement State regulations. For
these reasons, the petitioner claims that it makes a considerable
effort to learn of proposed regulatory changes and to maintain current
copies of NRC and Agreement State regulations.
The petitioner indicates that it is submitting this petition for
rulemaking to amend 10 CFR Parts 2 and 150 because it believes that the
current regulations completely fail to provide a mechanism for persons
located outside any particular Agreement State to learn about proposed
and completed changes to that State's regulations. The petitioner
believes that because there is no adequate mechanism to keep NRC
licensees aware of current Agreement State regulations, it is unable to
fully participate in discussion of proposed rules and is often unaware
of actual regulatory changes that directly affect it and its customers
in Agreement States.
Discussion of the Petition
The petitioner has submitted this petition for rulemaking because
it believes that it is adversely affected by the current regulations
that do not provide an adequate mechanism for NRC licensees to learn
about proposed and adopted changes in applicable Agreement State
regulations. The petitioner states that although the current NRC
regulations in 10 CFR 2.804 through 2.807 establish a procedure for the
notification and publication of regulatory changes and participation by
interested persons, it believes that a less detailed set of rulemaking
and notification procedures is specified for Agreement States in 10 CFR
150.31.
The petitioner's primary concern is that it and other NRC licensees
are not always notified of proposed and completed changes in Agreement
State regulations that can directly affect themselves and their
customers in Agreement States. The petitioner is also concerned that
because it is often not aware of Agreement State regulatory actions, it
does not have the opportunity to fully participate in the rulemaking
process as is intended by NRC regulations. As part of its petition for
rulemaking, the petitioner has included copies of various
correspondence with Agreement State radiation control boards and the
NRC, and cites specific cases in the Agreement States of Oregon and
Texas that it believes will illustrate that the current rules are
unduly burdensome, deficient, and in need of strengthening. For
example, in Oregon, regulatory changes are proposed that would
eliminate the general license authorizing the petitioner to install,
transfer, demonstrate, or provide service and would require the
petitioner to obtain a specific license from Oregon in order to conduct
business.
If these proposed regulations are adopted, the petitioner states
that it will be able to ship sensors to a customer in Oregon only after
confirming that the customer has an appropriate specific license. The
petitioner is concerned not only that the proposed regulations would
impose additional burdens and costs on it and its customers in
conducting business in Oregon, but also that it was not provided ample
opportunity to comment on the proposed rules or to participate in the
rulemaking process.
Although the petitioner attempted to learn about any proposed or
adopted regulatory changes by writing to the Oregon Radiation Control
Section on several occasions between June 1991 and January 1994, it did
not receive a response. The lack of response led the petitioner to
believe that Oregon had not modified its 1987 radiological control
regulations even though the current version of the Oregon
Administrative Rules for the Control of Radiation was adopted in 1991.
The petitioner stated that it only became aware of the changes in
Oregon's notification requirements in February 1994 when informally
contacted by an out-of-state health physics colleague.
The petitioner also described a case in which it did not learn of
regulatory modifications adopted by the Agreement State of Texas in
1993 until after the rules became effective. These regulations govern
distribution and service involving generally licensed devices. The
petitioner claims that the new requirements are costly and
administratively burdensome and again expressed the concern that it was
not able to participate in discussions of proposed rules that affect it
and its customers before the rules became effective.
The petitioner acknowledges that although some State's radiation
control agencies are conscientious in notifying out-of-state
distributors or service groups about proposed and completed regulatory
changes, many do not make such an effort. For these reasons, the
petitioner indicates that it and other firms have no way of knowing
when copies of a State's regulations are no longer valid and,
consequently, have no opportunity to participate in the rulemaking
process. The petitioner stated that its efforts to gain information
regarding Agreement State regulatory changes are costly, time-
consuming, and often ineffective.
To alleviate this situation, the petitioner proposes that 10 CFR
150.31 be amended to require Agreement States to notify the NRC of any
proposed regulatory actions and that 10 CFR Part 2 be amended to
require the NRC to publish the Agreement State notices of proposed
regulatory actions in the Federal Register.
The NRC staff would like to inform the readers that 10 CFR 150.31
applies only to 11e(2) byproduct material (tailings and other wastes
generated from the milling of ores primarily for their source material
content) and reflects statutory requirements in the Uranium Mill
Tailings Radiation Control Act of 1978, as amended. Similar
requirements could be developed to apply to other byproduct material.
In order to avoid confusion with the requirements for 11e(2) byproduct
material, the proper location for these new requirements would need to
be considered in the development of any new section in Part 150.
The Petitioner's Proposed Amendment
The petitioner requests that 10 CFR Parts 150 and 2 be amended to
overcome the problems the petitioner has itemized and recommends the
following revisions to the regulations:
1. The petitioner proposes that Sec. 150.31 be amended by
redesignating existing paragraph (c) as paragraph (d), redesignating
existing paragraph (d) as paragraph (e), and adding a new paragraph (c)
to read as follows:
Section 150.31 Requirements for Agreement State Regulation of
Byproduct Material
* * * * *
(c) After [date], in the licensing and regulation of byproduct
material, as defined in Sec. 150.3(c)(2) of this part, or of any
activity which results in the production of such byproduct material, an
Agreement State shall require compliance with procedures which:
(1) Include the requirements of paragraph (b) of this section, and
(2) In the case of rulemaking also include:
(i) Except as provided by paragraph (c)(2)(iv) of this section,
when it proposes to adopt, amend, or repeal a regulation, shall submit
notice of the proposed change to the Secretary, U.S. Nuclear Regulatory
Commission, Washington, DC 20555, Attention: Chief, Docketing and
Service Branch.
(ii) The notice will include:
(A) Either the terms or substance of the proposed rule, or a
specification of the subjects and issues involved;
(B) The manner, time, and place within which interested members of
the public may comment, and a statement of where and when copies of
such comments may be examined.
(C) The authority under which the regulation is proposed; and
(D) The time, place, and nature of the public hearing, if any.
(iii) The notice required in paragraph (c)(2)(i) of this section
will be made not less than [number to be determined] days prior to the
time fixed for hearing, if any, unless the Agreement State for good
cause stated in the notice provides otherwise.
(iv) The notice and comment provisions contained in paragraph
(c)(2) (i), (ii), and (iii) of this section will not be required to be
applied--
(A) To interpretive rules, general statements of policy, or rules
of agency organization, procedure, or practice; or
(B) When the Agreement State for good cause finds that notice and
public comment are impracticable, unnecessary, or contrary to the
public interest, and are not required by statute. This finding, and the
reasons therefor, will be incorporated into any rule issued without
notice and comment for good cause.
(v) The Agreement State shall provide for a 30-day post-
promulgation comment period for--
(A) Any rule adopted without notice and comment under the good
cause exception in paragraph (c)(2)(iv)(B) of this section where the
basis is that notice and comment is ``impracticable'' or ``contrary to
the public interest;'' or
(B) Any interpretive rule, or general statement of policy adopted
without notice and comment under paragraph (c)(2)(iv)(A) of this
section, except for those cases for which the Agreement State finds
that such procedures would serve no public interest, or would be so
burdensome as to outweigh any foreseeable gain.
(vi) For any post-promulgation comments received under paragraph
(c)(2)(v) of this section, the Agreement State shall submit a statement
to the Secretary, U.S. Nuclear Regulatory Commission, Washington, DC
20555, Attention: Chief, Docketing and Service Branch. This statement
shall contain an evaluation of the significant comments and any
revisions of the rule or policy statement made as a result of the
comments and their evaluation.
(vii) The Agreement State will afford interested persons an
opportunity to participate through the submission of statements,
information, opinions, and arguments in the manner stated in the
notice. The Agreement State may grant additional reasonable opportunity
for the submission of comments.
(viii) The Agreement State may hold informal hearings at which
interested persons may be heard, adopting procedures which in its
judgment will best serve the purpose of the hearing.
(ix) When it has adopted, amended, or repealed a regulation, the
Agreement State will submit notice of the action to the Secretary, U.S.
Nuclear Regulatory Commission, Washington, DC 20555, Attention: Chief,
Docketing and Service Branch.
(x) The notice of adoption, amendment, or repeal of a regulation
provided by an Agreement State to fulfill the requirements of paragraph
(c)(2)(ix) of this section will specify the effective date and include
a concise general statement of the basis and purpose of the change.
Such notice will be made not less than [number of days to be
determined] days prior to the effective date, unless the Agreement
State directs otherwise on good cause found and included in the notice
of rulemaking provided in fulfillment of paragraph (c)(2)(x) of this
section.
* * * * *
2. The petitioner proposes that 10 CFR Part 2 be amended to add a
Sec. 2.810 to read as follows:
Section 2.810 Notice of Proposed Rulemaking by Agreement States
(a) When the Commission, in fulfillment of the requirements of
Sec. 150.31(c)(2)(i) of this chapter, receives Agreement State notice
of a proposal to adopt, amend, or repeal a regulation, it will cause
the notice to be published in the Federal Register. The publication of
this notice will be made not less than fifteen (15) days prior to the
time fixed for hearing, if any.
(b) When the Commission, in fulfillment of the requirements of
Sec. 150.31(c)(2)(vi) of this chapter, receives an Agreement State
statement of post-promulgation comments, it will cause the statement to
be published in the Federal Register.
(c) When the Commission, in fulfillment of the requirements of
Sec. 150.31(c)(2)(ix) of this chapter, receives an Agreement State
notice of the adoption, amendment, or repeal of regulations, it will
cause the notice, including the effective date, to be published in the
Federal Register.
Dated at Rockville, Maryland, this 30th day of September, 1994.
For the Nuclear Regulatory Commission.
John C. Hoyle,
Acting Secretary of the Commission.
[FR Doc. 94-24652 Filed 10-4-94; 8:45 am]
BILLING CODE 7590-01-P
