[Federal Register Volume 78, Number 106 (Monday, June 3, 2013)]
[Notices]
[Pages 33122-33132]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13066]


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NUCLEAR REGULATORY COMMISSION

[NRC-2013-0081]


Policy Statement on Adequacy and Compatibility of Agreement State 
Programs; Statement of Principles and Policy for the Agreement State 
Program

AGENCY: Nuclear Regulatory Commission.

ACTION: Policy statements; draft revisions and request for comment.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is proposing 
revisions to its policy statements on Agreement State Programs. Both 
the ``Policy Statement on Adequacy and Compatibility of Agreement State 
Programs'' and the ``Statement of Principles and Policy for the 
Agreement State Program'' have been revised to add information on 
security of radioactive materials and incorporate changes in the NRC's 
policies and procedures since the last revision in 1997. In addition to 
requesting comments on the revisions made to the policy statements, the 
NRC is specifically requesting comments on (1) Compatibility Category B 
in the ``Policy Statement on Adequacy and Compatibility of Agreement 
State Programs,'' (2) consideration of a performance based approach in 
determining Agreement State compatibility, and (3) performance based 
metrics in the adequacy determination of an Agreement State program.

DATES: Submit comments by August 19, 2013. Comments received after this 
date will be considered if it is practical to do so, but the NRC is 
able to assure consideration only for comments received on or before 
this date.

ADDRESSES: You may submit comment by any of the following methods 
(unless this document describes a different method for submitting 
comments on a specific subject):
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2013-0081. Address 
questions about NRC dockets to Carol Gallagher; telephone: 301-492-
3668; email: Carol.Gallagher@nrc.gov. For technical questions, contact 
the individual(s) listed in the FOR FURTHER INFORMATION CONTACT section 
of this document.
     Email comments to: Rulemaking.Comments@nrc.gov. If you do 
not receive an automatic email reply confirming receipt, then contact 
us at 301-415-1677.
     Fax comments to: Secretary, U.S. Nuclear Regulatory 
Commission at 301-415-1101.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff.
     Hand deliver comments to: 11555 Rockville Pike, Rockville, 
Maryland 20852, between 7:30 a.m. and 4:15 p.m. (Eastern Time) Federal 
workdays; telephone: 301-415-1677.
    For additional direction on accessing information and submitting 
comments, see ``Accessing Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Lisa Dimmick, Office of Federal and 
State Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-
0694, email: Lisa.Dimmick@nrc.gov.

SUPPLEMENTARY INFORMATION: 
I. Accessing Information and Submitting Comments
II. Background
III. Discussion
IV. Proposed Revision to Policy Statement on Adequacy and 
Compatibility of Agreement State Programs
V. Proposed Revision to Statement of Principles and Policy for the 
Agreement State Program
VI. Topics for Additional Comment
VII. Paperwork Reduction Act

I. Accessing Information and Submitting Comments

A. Accessing Information

    Please refer to Docket ID NRC-2013-0081 when contacting the NRC 
about the availability of information for the proposed revisions of the 
policy statements. You may access information related to the proposed 
revisions of the policy statements, which the NRC possesses and is 
publicly available, by any of the following methods:
     Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2013-0081.
     NRC's Agencywide Documents Access and Management System

[[Page 33123]]

(ADAMS): You may access public documents online in the NRC Library at 
http://www.nrc.gov/reading-rm/adams.html. To begin the search, select 
``ADAMS Public Documents'' and then select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's Public 
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or 
by email to pdr.resource@nrc.gov. The ADAMS accession number for each 
document referenced in this notice (if that document is available in 
ADAMS) is provided the first time that a document is referenced.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

B. Submitting Comments

    Please include Docket ID NRC-2013-0081 in the subject line of your 
comment submission, in order to ensure that the NRC is able to make 
your comment submission available to the public in this docket.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into 
ADAMS. The NRC does not routinely edit comment submissions to remove 
identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment submissions into ADAMS.

II. Background

    On August 25, 1993, the Commission requested the NRC staff to 
recommend improvements to the NRC's Agreement State Program to assure 
adequate protection of public health and safety. Among these 
improvements, the NRC staff, with participation from Agreement State 
representatives, developed two policy statements. The policy statements 
are entitled ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' and ``Statement of Principles and Policy for 
the Agreement State Program.'' The Commission approved both policy 
statements on June 29, 1995, but deferred their implementation until 
all implementing procedures were completed and approved by the 
Commission. These policy statements became effective on September 3, 
1997 (62 FR 46517).
    In Staff Requirements Memorandum (SRM), ``SECY-10-0105, Final Rule: 
Limiting the Quantity of Byproduct Material in a Generally Licensed 
Device'' (ADAMS Accession No. ML103360262) dated December 2, 2010, the 
Commission directed the NRC staff to update the Commission's ``Policy 
Statement on Adequacy and Compatibility of Agreement State Programs'' 
and associated guidance documents to include both safety and source 
security considerations in the determination process. Because Agreement 
State adequacy and compatibility are key components of the Integrated 
Materials Performance Evaluation Program (IMPEP) process,\1\ the 
Commission's Policy Statement on the ``Statement of Principles and 
Policy for the Agreement State Program'' is being revised concurrently. 
Two Working Groups operating in accordance with NRC Management 
Directive 5.3, ``Agreement State Participation in Working Groups,'' 
dated August 22, 2007 (ADAM Accession No. ML070940610), are drafting 
the revisions to these policy statements. The two Working Groups met 
concurrently and periodically interfaced in developing the proposed 
revisions. The revisions include adding information on security of 
radioactive materials and updating the policy statements to reflect 
subsequent changes in the NRC policies and procedures.
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    \1\ The NRC developed the IMPEP process to evaluate the adequacy 
and compatibility of Agreement State Programs and the adequacy of 
the NRC's nuclear materials program activities.
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III. Discussion

    The Commission tasked the staff with updating the Commission's 
Policy Statement, ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs,'' and associated guidance, to include both 
safety and source security in the determination process. The Policy 
Statement as issued in 1997 continues to remain relevant and 
effectively serves the mission of the agency. However, the staff 
concluded that the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' and the ``Statement of Principles and Policy 
for the Agreement State Program'' both required revision to meet the 
intent of the SRM by clarifying that security is part of the agency's 
health and safety mission and update the policy statements to include 
current policies, procedures, and practices.
    Following the events of September 11, 2001, the NRC's regulatory 
oversight was enhanced. Additional security measures were developed and 
implemented. While safety and source security have always been inherent 
to the protection of public health and safety, the Working Groups 
recognized that the two policy statements needed to specifically 
acknowledge that the NRC and Agreement State oversight of these 
enhanced security measures should not be confused with the NRC's 
mission to promote the common defense and security. The Working Groups 
revised the purpose sections of the policy statements to indicate that 
public health and safety includes physical protection of ``agreement 
material.''
    The two Working Groups also reconciled a difference in terminology 
in the policy statements as they were originally published. The 
``Policy Statement on Adequacy and Compatibility of Agreement State 
Programs'' used the term ``agreement material'' to refer to byproduct, 
source, and small quantities of special nuclear material as defined in 
Section 274b. of the Atomic Energy Act (AEA) of 1954, as amended. The 
``Statement of Principles and Policy for the Agreement State Program'' 
used the term ``AEA material'' to describe the same material. While the 
terms ``agreement material'' and ``AEA material'' are generally viewed 
as synonymous, using different terms in the policies may be construed 
as an indication that the NRC intended the terms to have different 
meanings. The Working Groups decided to use the term ``agreement 
material'' throughout both policy statements.

Policy Statement on Adequacy and Compatibility of Agreement State 
Programs

    As explained in greater detail in Section VI, ``Topics for 
Additional Comment,'' of this document, the NRC is requesting comments 
on the language used to describe and define Compatibility Category B. 
The language from the 1997 version of the Policy Statement was left in 
place in the draft revision so that the input requested could be based 
on the description currently used when making a determination of 
Compatibility Category B. For Compatibility Category C, the Working 
Group felt it was important to clarify that program elements and 
regulations assigned this category of

[[Page 33124]]

compatibility could be more restrictive than the equivalent NRC program 
element or regulation. Additionally, the NRC is requesting comments on 
what types of program elements should be designated as a Compatibility 
Category B. The NRC is also requesting comment as to whether the number 
of Compatibility Category B program element should be limited.
    The NRC expects to hold two public meetings during the public 
comment period. The agendas for the two public meetings, including the 
dates and locations, will be posted on the NRC's public meeting 
schedule Web site at http://www.nrc.gov/public-involve/public-meetings/index.cfm.

Statement of Principles and Policy for the Agreement State Program

    Several changes were made throughout the Policy Statement to 
demonstrate a clear connection between public health, safety, and 
security. The NRC and Agreement State radiation control programs 
maintain regulatory oversight for the safe and secure handling of 
nuclear materials. These programs have always included the security of 
nuclear materials as an integral part of their health and safety 
mission as it relates to minimizing the risk of exposure to workers and 
the public. Throughout the 1997 Policy Statement, the phrase ``safe 
use'' of material was used. To impart the concept that security is a 
necessary component of public health and safety, the phrase ``safe 
use'' of material was replaced with ``safe and secure use'' of 
material.
    Several updates were made to align the Policy Statement with 
current practices under IMPEP. The Working Group expanded the text 
addressing the actions taken by the NRC as a result of program review 
findings to include options to address performance such as monitoring, 
heightened oversight, probation, suspension, and termination.

IV. Proposed Revision to Policy Statement on Adequacy and Compatibility 
of Agreement State Programs

Purpose

    Section 274 of the AEA of 1954, as amended, provides for a Federal-
State regulatory framework for the control of byproduct, source, and 
small quantities of special nuclear material (hereinafter termed 
``agreement material'') as identified by Section 274b. of the AEA. The 
NRC, by agreement with a State under Section 274 of the AEA, 
relinquishes its regulatory authority in certain areas and allows the 
State Government to assume that regulatory authority, as long as the 
State program is adequate to protect public health and safety and 
compatible with the Commission's \2\ program. For the purpose of this 
Policy Statement, ``public health and safety'' includes physical 
protection of agreement material.
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    \2\ For the purposes of this Policy Statement the definition of 
Commission is equivalent to Title 10 of the Code of Federal 
Regulations: Commission means the five members of the NRC or a 
quorum thereof sitting as a body, as provided by Section 201 of the 
Energy Reorganization Act of 1974, as amended.
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    Section 274 further directs the Commission to periodically review 
State programs to ensure compliance with the provisions of Section 274. 
This Policy Statement presents the NRC's policy for determining the 
adequacy and compatibility of Agreement State programs established in 
accordance with Section 274. This Policy Statement clarifies the 
meaning and use of the terms ``adequate to protect public health and 
safety'' and ``compatible with the Commission's regulatory program'' as 
applied to the Agreement State program. The Policy Statement also 
describes the general framework that will be used to identify those 
program elements that Agreement State programs should implement to 
adequately protect public health and safety and to be compatible with 
the Commission's regulatory program. For the purposes of this Policy 
Statement, ``program element'' means any component or function of a 
radiation control regulatory program, including regulations and/or 
other legally binding requirements imposed on regulated persons, which 
contributes to implementation of that program. Finally, the Policy 
Statement reflects principles discussed in the Commission's ``Statement 
of Principles and Policy for the Agreement State Program,'' which 
should be considered in conjunction with this Policy Statement.
    This Policy Statement is solely guidance for the Commission and the 
Agreement States in the implementation of the Agreement State program. 
This Policy Statement does not itself impose legally binding 
requirements on the Agreement States. In addition, nothing in this 
Policy Statement expands the legal authority of Agreement States beyond 
that already granted to them by Section 274 of the AEA and other 
relevant legal authority. Nor does this Policy Statement diminish or 
constrain the NRC's authority under the AEA. Implementation procedures 
adopted under this Policy Statement shall be consistent with the legal 
authorities of the Commission and the Agreement States.

Background

    The terms ``adequate'' and ``compatible'' represent fundamental 
concepts in the Agreement State program authorized in 1959 by Section 
274 of the AEA. Subsection 274d. states that the Commission shall enter 
into an Agreement under subsection 274b., relinquishing the NRC's 
regulatory authority over certain materials in a State, provided that 
the State's program is adequate to protect public health and safety and 
is compatible, in all other respects, with the Commission's regulatory 
program. Subsection 274g. authorizes and directs the Commission to 
cooperate with States in the formulation of standards to assure that 
State and Commission standards will be coordinated and compatible. 
Subsection 274j(1) requires the Commission to review periodically the 
Agreements and actions taken by States under the Agreements to ensure 
compliance with the provisions of Section 274. Therefore, the 
Commission must review the actions taken by States under the Agreements 
to ensure that the programs continue to be adequate to protect public 
health and safety and compatible with the Commission's program.
    In identifying those program elements for adequate and compatible 
programs, or any changes thereto, the NRC staff will seek the advice of 
the Agreement States. The Commission will consider such advice in its 
final decision.

Discussion

    Section 274 of the AEA requires that Agreement State programs be 
both ``adequate to protect the public health and safety'' and 
``compatible with the Commission's program.'' In accordance with 
Section 274 of the AEA, an Agreement State program should provide for 
an acceptable level of protection of public health and safety in an 
Agreement State (the ``adequacy'' component). The Agreement State 
should also ensure that its program serves an overall nationwide 
interest in radiation protection (the ``compatibility'' component).
    Program elements for adequacy focus on the protection of public 
health and safety within a particular State while program elements for 
compatibility focus on the impacts of an Agreement State's regulation 
of agreement material on a nationwide basis or its potential effects on 
other jurisdictions. Many program elements for compatibility also 
impact public health and safety; therefore, they may also be considered 
program elements for adequacy.

[[Page 33125]]

1. Adequacy
    An ``adequate'' program should include those program elements not 
required for compatibility but necessary to maintain an acceptable 
level of protection of public health and safety within an Agreement 
State. These program elements make up the category Health and Safety. 
An Agreement State's radiation control program is adequate to protect 
public health and safety if administration of the program provides 
reasonable assurance of protection of public health and safety in 
regulating the use of agreement material. The level of protection 
afforded by the program elements of the NRC's materials regulatory 
program is presumed to be that which is adequate to provide a 
reasonable assurance of protection of public health and safety. 
Therefore, the overall level of protection of public health and safety 
provided by a State program should be equivalent to, or greater than, 
the level provided by the NRC program. To provide reasonable assurance 
of protection of public health and safety, an Agreement State program 
should contain the five essential program elements, identified in 
Sections A. through E., that the Commission will use to define the 
scope of its review of the program. The Commission will also consider, 
when appropriate, other program elements of an Agreement State that 
appear to affect the program's ability to provide reasonable assurance 
of public health and safety protection. Such consideration will occur 
only if concerns arise.
A. Legislation and Legal Authority
    State statutes should:
    (1) Authorize the State to establish a program for the regulation 
of agreement material and provide authority for the assumption of 
regulatory responsibility under an Agreement with the Commission;
    (2) Authorize the State to promulgate regulatory requirements 
necessary to provide reasonable assurance of protection of public 
health and safety;
    (3) Authorize the State to license, inspect, and enforce legally 
binding requirements such as regulations and licenses; and
    (4) Be otherwise consistent with applicable Federal statutes.
    In addition, the State should have existing legally enforceable 
measures such as generally applicable rules, license provisions, or 
other appropriate measures, necessary to allow the State to ensure 
adequate protection of public health and safety in the regulation of 
agreement material in the State. For those items that have significant 
health and safety implications, the NRC shall identify legally binding 
requirements that should be adopted by Agreement States. The NRC 
expects that there will be a limited number of such requirements. In 
adopting such requirements, Agreement States should adopt the essential 
objectives of those of the Commission.
B. Licensing
    The State should conduct appropriate evaluations of proposed uses 
of agreement material, before issuing a license, to assure that the 
proposed licensee's operations can be conducted safely and securely. 
Licenses should provide for reasonable assurance of public health and 
safety protection in relation to the licensed activities.
C. Inspection and Enforcement
    The State should periodically conduct inspections of licensed 
activities involving agreement material to provide reasonable assurance 
of safe licensee operations and to determine compliance with its 
regulatory requirements. When determined to be necessary by the State, 
the State should take timely enforcement action against licensees 
through legal sanctions authorized by State statutes and regulations.
D. Personnel
    The State should be staffed with a sufficient number of qualified 
personnel to implement its regulatory program for the control of 
agreement material.
E. Incidents and Allegations
    The State should respond to and conduct timely inspections or 
investigations of incidents, reported events, and allegations involving 
agreement material within the State's jurisdiction to provide 
reasonable assurance of protection of public health and safety.
1. Compatibility
    A ``compatible'' program should consist of those program elements 
necessary to meet a larger nationwide interest in promoting an orderly 
pattern of regulation of radiation protection. Those program elements 
are generally limited to areas of regulation involving radiation 
protection standards and activities with significant transboundary 
implications. An Agreement State radiation control program is 
compatible with the Commission's regulatory program when its program 
does not create conflicts, duplications, gaps, or other conditions that 
would jeopardize an orderly pattern in the regulation of agreement 
material on a nationwide basis. For purposes of compatibility, the 
State should address the following Categories A, B, and C:
A. Category A--Basic Radiation Protection Standards
    For purposes of this Policy Statement, this category includes 
``basic radiation protection standards'' meaning dose limits, 
concentration and release limits related to radiation protection in 
Part 20 of Title 10 of the Code of Federal Regulations (10 CFR), that 
are generally applicable, and the dose limits in 10 CFR 61.41.\3\ Also 
included in this category are a limited number of definitions, signs, 
labels, and scientific terms that are necessary for a common 
understanding of radiation protection principles among licensees, 
regulatory agencies, and members of the public. Such State standards 
should be essentially identical to those of the Commission, unless 
Federal statutes provide the State authority to adopt different 
standards. Basic radiation protection standards do not include 
constraints or other limits below the level associated with ``adequate 
protection'' that take into account permissible balancing 
considerations such as economic cost and other factors.
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    \3\ The Commission will implement this category consistent with 
its earlier decision in the low-level waste area to allow Agreement 
States flexibility to establish pre-closure operational release 
limit objectives, as low as is reasonably achievable goals or design 
objectives at such levels as the State may deem necessary or 
appropriate, as long as the level of protection of public health and 
safety is at least equivalent to that afforded by Commission 
requirements.
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B. Category B--Program Elements With Significant Transboundary 
Implications
    The Commission will limit this category to a small number of 
program elements (e.g., transportation regulations and sealed source 
and device registration certificates) that have significant 
transboundary implications. Agreement State program elements should be 
essentially identical to those of the Commission.
C. Category C--Other Commission Program Elements
    These are other Commission program elements that are important for 
an Agreement State to have in order to avoid conflicts, duplications, 
gaps, or other conditions that would jeopardize an orderly pattern in 
the regulation of agreement material on a nationwide basis. Such 
Agreement State program elements should embody the essential objective 
of the corresponding Commission program elements. Agreement State 
program elements may be more restrictive than Commission program 
elements; however, they

[[Page 33126]]

should not be so restrictive as to prohibit a licensed activity.
D. Category D--Program Elements Not Required for Compatibility
    An Agreement State has the flexibility to adopt and implement 
program elements within the State's jurisdiction that are not addressed 
by the NRC, or program elements not required for compatibility (i.e., 
those NRC program elements not assigned a Compatibility A, B, or C). 
However, such program elements of an Agreement State relating to 
agreement material should:
    (1) Be compatible with those of the Commission (i.e., should not 
create conflicts, duplications, gaps, or other conditions that would 
jeopardize an orderly pattern in the regulation of agreement material 
on a nationwide basis);
    (2) Not preclude, or effectively preclude, a practice \4\ in the 
national interest without an adequate public health and safety or 
environmental basis related to radiation protection; and
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    \4\ For the purposes of this Policy Statement, ``practice'' 
means a use, procedure, or activity associated with the application, 
possession, use, storage, or disposal of agreement material. The 
term ``practice'' is used in a broad and encompassing manner in this 
Policy Statement but does not include economic considerations. The 
term encompasses both general and specific activities involving the 
use of agreement materials.
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    (3) Not preclude, or effectively preclude, the ability of the 
Commission to evaluate the effectiveness of the NRC and Agreement State 
programs for agreement material with respect to protection of public 
health and safety.
E. Category NRC--Areas of Exclusive NRC Regulatory Authority
    These are program elements that address areas of regulation that 
cannot be relinquished to Agreement States pursuant to the AEA or 
provisions of Title 10 of the Code of Federal Regulations. However, an 
Agreement State may inform its licensees of these NRC provisions 
through a mechanism that is appropriate under the State's 
administrative procedure laws as long as the State adopts these 
provisions solely for the purposes of notification, and does not 
exercise any regulatory authority as a result.

Summary and Conclusions

    To foster and enhance a coherent and consistent nationwide program 
for the regulation of agreement material, the Commission encourages 
Agreement States to adopt and implement program elements that are 
patterned after those adopted and implemented by the Commission. 
However, the fact that an Agreement State's program is compatible with 
that of the Commission does not affect that State's obligation to 
maintain an adequate program as described in this Policy Statement.
    By adopting the criteria for adequacy and compatibility as 
discussed in this Policy Statement, the Commission will provide 
Agreement States a broad range of flexibility in the administration of 
individual programs. Recognizing the fact that Agreement States have 
responsibilities for radiation sources other than agreement material, 
the Commission allows Agreement States to fashion their programs so as 
to reflect specific State needs and preferences.
    The Commission will minimize the number of NRC regulatory 
requirements that the Agreement States will be requested to adopt in an 
identical manner to maintain compatibility. The expectation is that 
these requirements will be limited. Requirements in these compatibility 
categories allow the Commission to ensure that an orderly pattern for 
the regulation of agreement material exists nationwide. The Commission 
believes that this approach achieves a proper balance between the need 
for Agreement State flexibility and the need for coordinated and 
compatible regulation of agreement material across the country.

V. Proposed Revisions to Statement of Principles and Policy for the 
Agreement State Program

A. Statement of Principles and Policy for the Agreement State Program

Purpose
    The purpose of this Statement of Principles and Policy for the 
Agreement State Program is to clearly describe the respective roles and 
responsibilities of the NRC and States in the administration of 
programs carried out under Section 274 of the AEA of 1954, as amended. 
Section 274 provides broad authority for the NRC to establish Federal 
and State cooperation in the administration of regulatory programs for 
the protection of public health and safety in the industrial, medical, 
commercial, and research uses of nuclear materials.
    This Policy Statement addresses the Federal-State interaction under 
the AEA: (1) to establish and maintain agreements with States under 
Section 274b. that provide for discontinuance by the NRC, and the 
assumption by the State, of responsibility for administration of a 
regulatory program for the safe and secure use of byproduct, source, 
and small quantities of special nuclear material; and (2) ensure that 
post-agreement interactions among the NRC and Agreement State radiation 
control programs are coordinated, compatible, and continue to provide 
adequate protection of public health and safety.
    Section 274 of the AEA provides for a special Federal-State 
regulatory framework for the control of byproduct, source, and small 
quantities of special nuclear material as identified by Section 274b. 
of the AEA. The NRC, by agreement with a State, relinquishes its 
authority under Section 274 of the AEA over practices involving some or 
all of these materials. The material over which the State receives 
regulatory authority under such agreements is hereinafter termed 
``agreement material.''
    The NRC and Agreement State radiation control programs maintain 
regulatory oversight for the safe and secure handling, use, and storage 
of agreement material. These programs have always included the security 
of nuclear materials as an integral part of their health and safety 
mission as it relates to minimizing the risk of exposure to workers and 
the public. Following the events of September 11, 2001, the NRC's 
regulatory oversight has included developing and implementing enhanced 
security measures. For the purposes of this policy statement, public 
health and safety includes these enhanced security measures.
    This Policy Statement establishes principles, objectives, and goals 
that the Commission expects will be reflected in the implementing 
guidance and programs of the NRC and Agreement States to meet their 
respective program responsibilities and that should be achieved in the 
administration of these programs.
    This Policy Statement is intended solely as guidance for the 
Commission and the Agreement States in the implementation of the 
Agreement State program. This Policy Statement does not itself impose 
legally binding requirements on the Agreement States. In addition, 
nothing in this Policy Statement expands the legal authority of 
Agreement States beyond that already granted to them by Section 274 of 
the AEA and other relevant legal authority. Implementation procedures 
adopted pursuant to this Policy Statement shall be consistent with the 
legal authorities of the Commission and the Agreement States.
Statement of Legislative Intent
    The AEA did not initially specify a role for the States in 
regulating the use of nuclear materials. Many States were concerned as 
to what their responsibilities in this area might be and expressed 
interest in seeing that the

[[Page 33127]]

boundaries of Federal and State authority were clearly defined. This 
need for clarification was particularly important in view of the fact 
that although the Federal Government retained sole responsibility for 
protecting public health and safety from the radiation hazards of 
byproduct, source, and special nuclear material, the responsibility for 
protecting the public from the radiation hazards of other sources such 
as x-ray machines and radium had been borne for many years by the 
States.
    Consequently, in 1959 Congress enacted Section 274 of the AEA to 
establish a statutory framework under which States could assume certain 
regulatory jurisdiction over byproduct, source, and special nuclear 
material in quantities less than a critical mass. The primary purpose 
of the legislation was to authorize the Commission to relinquish its 
regulatory authority over the use of these materials and for assumption 
of this authority by the States. The Commission retained regulatory 
authority over the licensing of certain facilities and activities such 
as nuclear reactors, larger quantities of special nuclear material, the 
export and import of nuclear materials, and matters related to common 
defense and security.
    In considering the legislation, Congress recognized that the 
Federal Government would need to assist the States to ensure that they 
developed the capability to exercise their regulatory authority in a 
competent and effective manner. Accordingly, the legislation authorized 
the Commission to provide training and other services to State 
officials and employees. However, in rendering this assistance, 
Congress did not intend that the Commission would provide any grants to 
a State for the administration of a State regulatory program. This was 
fully consistent with the objectives of Section 274 to qualify States 
to assume independent regulatory authority over certain defined areas 
of regulatory jurisdiction and to permit the Commission to discontinue 
its regulatory responsibilities in those areas.
    In order to relinquish its authority to a particular State, the 
Commission must find that program is compatible with the Commission's 
program for the regulation of agreement materials and that the State 
program is adequate to protect public health and safety. In addition, 
the Commission has an obligation, pursuant to Section 274j. of the AEA, 
to review existing Agreement State programs periodically to ensure 
continued adequacy and compatibility. Section 274j. of the AEA provides 
that the NRC may terminate or suspend all or part of its agreement with 
a State if the Commission finds that such termination is necessary to 
protect public health and safety or that the State has not complied 
with the provisions of Section 274j. In these cases, the Commission 
must offer the State reasonable notice and opportunity for a hearing. 
In addition, the Commission may temporarily suspend all or part of an 
agreement in the case of an emergency situation.

B. Principles of Program Implementation and Program Assessment

    The NRC is responsible for ensuring that the regulatory programs of 
the NRC and the Agreement States collectively establish a coherent 
nationwide effort for the control of agreement material. The basic 
elements of such regulatory programs include principles of good 
regulation in program administration and the ability to assess program 
performance on a consistent and systematic basis; the ability to ensure 
adequate protection of public health and safety including security of 
these nuclear materials; compatibility in areas of national interest; 
and sufficient flexibility to accommodate local needs and conditions. 
Each of these elements is reflected and addressed in specific sections 
of this Policy Statement.
1. Good Regulation Principles
    In 1991, the Commission adopted ''Principles of Good Regulation'' 
to serve as a guide to both agency decision making and to individual 
behavior as NRC employees. There are five Principles of Good 
Regulation: independence, openness, efficiency, clarity, and 
reliability. Adherence to these principles has helped to ensure that 
the NRC's regulatory activities have been of the highest quality, 
appropriate, and consistent. The ''Principles of Good Regulation'' 
recognize that strong, vigilant management and a desire to improve 
performance are prerequisites for success, for both regulators and the 
regulated industry. The NRC's implementation of these principles has 
served the public, the Agreement States, and the regulated community 
well. The Commission further suggests that such principles may be 
useful as a part of a common culture that the NRC and the Agreement 
States share as co-regulators. Accordingly, the Commission encourages 
each Agreement State to adopt a similar set of principles for use in 
its own regulatory program.
    For a regulator to achieve independence nothing but the highest 
possible standards of ethical performance and professionalism should 
influence regulation. However, independence does not imply isolation. 
All available facts and opinions must be sought openly from licensees 
and other interested members of the public. The many and possibly 
conflicting public interests involved must be considered. Final 
decisions must be based on objective, unbiased assessments of all 
information and must be documented with reasons explicitly stated.
    Nuclear regulation is the public's business and it must be 
transacted publicly and candidly. The public must be informed about and 
have the opportunity to participate in the regulatory processes as 
required by law. Open channels of communication must be maintained with 
Congress, other government agencies, licensees, and the public, as well 
as with the international nuclear community.
    The American taxpayer, the rate-paying consumer, and licensees are 
all entitled to the best possible management and administration of 
regulatory activities. The highest technical and managerial competence 
is required and must be a constant agency goal. The NRC must establish 
means to evaluate and continually upgrade its regulatory capabilities. 
Regulatory activities should be consistent with the degree of risk 
reduction they achieve. Where effective alternatives are available, the 
option which minimizes the use of resources should be adopted. 
Regulatory decisions should be made without undue delay.
    Regulations should be coherent, logical, and practical. There 
should be a clear nexus between regulations and agency goals and 
objectives whether explicitly or implicitly stated. Agency positions 
should be readily understood and easily applied.
    Regulations should be based on the best available knowledge from 
research and operational experience. Systems interactions, 
technological uncertainties, and the diversity of licensees and 
regulatory activities must all be taken into account so that risks are 
maintained at an acceptably low level. Once established, regulation 
should be perceived to be reliable and not unjustifiably in a state of 
transition. Regulatory actions should always be fully consistent with 
written regulations and should be promptly, fairly, and decisively 
administered so as to lend stability to the nuclear operational and 
planning processes. Failure to adhere to these principles of good 
regulation in the conduct of operations should be a sufficient reason 
for a regulatory program to self-initiate program changes that will 
result in needed improvements. All involved should

[[Page 33128]]

welcome expressions of concern that indicate a program may not be 
operating in accordance with these principles and revise their program 
to more completely reflect these principles.
    It is not intended that these principles of good regulation be 
established as formal criteria against which the NRC and Agreement 
State programs would be assessed. Rather, these principles should be 
incorporated into the day-to-day operational fabric of the NRC and 
Agreement State materials programs. These principles should be used in 
the formulation of policies and programs, implementation of those 
policies and programs, and assessments of program effectiveness. 
Application of these principles will ensure that complacency will be 
minimized, that adequate levels of protection of public health and 
safety are being provided, and that Government employees tasked with 
the responsibility for these Federal and State regulatory programs 
serve the public in an effective, efficient, and responsive manner. 
These principles are primarily for the use of the NRC and Agreement 
State materials program managers and staff in the self-assessment of 
their respective programs and to use in the establishment of goals and 
objectives for the continual improvement of their respective programs. 
Deficiencies identified during the conduct of the NRC Region and 
Agreement State formal program performance reviews may indicate that 
the program is not adhering to these principles of good regulation. The 
organization being assessed should factor the need for these principles 
into its actions to address identified deficiencies.
2. Coherent Nationwide Effort
    The mission of the NRC is to assure that civilian use of nuclear 
materials in the United States is carried out with adequate protection 
of public health and safety. NRC acknowledges its responsibility, 
shared with the Agreement States, to ensure that the regulatory 
programs of the NRC and the Agreement States collectively establish a 
coherent nationwide effort for the control of agreement material. The 
basic elements of such regulatory programs include the ability to 
ensure adequate protection of public health and safety, compatibility 
in areas of national interest, sufficient flexibility to accommodate 
local needs and conditions, the ability to assess program performance 
on a consistent and nationwide basis, and principles of good regulation 
in program administration.
3. Adequate To Protect Public Health and Safety
    The NRC and the Agreement States have the responsibility to ensure 
adequate protection of public health and safety in the administration 
of their respective regulatory programs controlling the safe and secure 
use of agreement materials. Accordingly, the NRC and Agreement State 
programs shall possess the requisite supporting legislative authority, 
implementing organization structure and procedures, and financial and 
human resources to effectively administer a radiation control program 
that ensures adequate protection of public health and safety.
4. Compatible in Areas of National Interest
    The NRC and the Agreement States have the responsibility to ensure 
that consistent and compatible radiation control programs are 
administered. Such radiation control programs should be based on a 
common regulatory philosophy including the common use of definitions 
and standards. They should not only be effective and cooperatively 
implemented by the NRC and the Agreement States, but also should 
provide uniformity and consistency in program areas having national 
significance.
    Such areas include those affecting interstate commerce, movement of 
goods and provision of services, security of Category 1 and 2 
radioactive sources, and safety reviews for the manufacture and 
distribution of sealed sources and devices. Also necessary is the 
ability to communicate using a nationally accepted set of terms with 
common understanding, the ability to ensure an adequate level of 
protection of public health and safety that is consistent and stable 
across the nation, and the ability of the NRC and each Agreement State 
to evaluate the effectiveness of the NRC and Agreement State programs 
for the regulation of agreement material with respect to protection of 
public health and safety.
5. Flexibility
    With the exception of those compatibility areas where all programs 
should be essentially identical, to the extent possible, Agreement 
State radiation control programs for agreement materials should be 
provided with flexibility in program implementation to accommodate 
individual State preferences, State legislative direction, and local 
needs and conditions. However, the exercise of such flexibility should 
not preclude, or effectively preclude, a practice authorized by the 
AEA, and in the national interest. That is, a State would have the 
flexibility to design its own program, including incorporating more 
stringent, or similar, requirements provided that the requirements for 
adequacy are still met and compatibility is maintained, and the more 
stringent requirements do not preclude or effectively preclude a 
practice in the national interest without an adequate public health and 
safety or environmental basis related to radiation protection.

C. New Agreements

    Section 274 of the AEA requires that once a decision to request 
Agreement State status is made by the State, the Governor of that State 
must certify to the NRC that the State desires to assume regulatory 
responsibility and has a program for the control of radiation hazards 
adequate to protect public health and safety with respect to the 
materials within the State covered by the proposed agreement. This 
certification will be provided in a letter to the NRC that includes a 
number of documents in support of the certification. These documents 
include the State's enabling legislation, the radiation control 
regulations, a narrative description of the State program's policies, 
practices, and procedures, and a proposed agreement.
    The NRC has published criteria describing the necessary content 
these documents are required to cover. The NRC reviews the request and 
publishes notice of the proposed agreement in the Federal Register to 
provide an opportunity for public comment. After consideration of 
public comments, if the Commission determines that the State program is 
adequate and compatible, and approves the agreement, a formal agreement 
document is signed by the Governor and the Chairman of the NRC.

D. Program Assistance

    The NRC will offer training and other assistance to States, such as 
assistance in developing regulations and program descriptions to help 
individual States prepare for entrance into agreements and to help them 
prior to the assumption of regulatory authority. Following assumption 
of regulatory authority by a new Agreement State, to the extent 
permitted by resources, the NRC may provide training opportunities and 
other assistance such as review of proposed regulatory changes to help 
States administer their regulatory responsibilities. The NRC may also 
use its best efforts to provide specialized technical assistance to 
Agreement States to address unique or complex licensing,

[[Page 33129]]

inspection, and limited enforcement issues. In areas where Agreement 
States have particular expertise or are in the best position to provide 
immediate assistance to the NRC or other Agreement States, they are 
encouraged to do so. In addition, the NRC and Agreement States will 
keep each other informed about relevant aspects of their programs. The 
NRC will provide an opportunity for Agreement States to have early and 
substantive involvement in rulemaking, policy, and guidance development 
activities. Agreement States should provide a similar opportunity to 
the NRC to make it aware of, and to provide the opportunity to review 
and comment on, proposed changes in regulations and significant changes 
to Agreement State programs, policies, and regulatory guidance.
    If an Agreement State experiences difficulty in program 
administration, the Commission would use its best efforts to assist the 
State in maintaining the effectiveness of its radiation control 
program. Such assistance could address an immediate difficulty or a 
chronic difficulty affecting the State's ability to discharge its 
responsibility to continue to ensure adequate protection of public 
health and safety. Under certain conditions Agreement States can also 
voluntarily return part or all of its Agreement State program, e.g., 
Sealed Source and Device evaluations and uranium recovery regulatory 
oversight (SECY-95-0136).

E. Performance Evaluation

    Under Section 274 of the AEA, as amended, the Commission retains 
authority for ensuring that Agreement State programs continue to 
provide adequate protection of public health and safety. In fulfilling 
this statutory responsibility, the NRC will periodically evaluate 
Agreement State radiation control programs to determine whether the 
programs are adequate and compatible prior to entrance into a Section 
274b. agreement and ensure they continue to be adequate and compatible 
after an agreement becomes effective.
    The Commission, in cooperation with the Agreement States, 
established and implemented the Integrated Materials Performance 
Evaluation Program (IMPEP). The IMPEP is a performance evaluation 
process that provides the NRC and Agreement State management with 
systematic, integrated, and reliable evaluations of the strengths and 
weaknesses of their respective radiation control programs and 
identification of areas needing improvement. Performance indicators are 
used to evaluate and ensure that regulatory programs are adequate to 
protect public health and safety and that Agreement State programs are 
compatible with the NRC's program. The IMPEP process employs a 
Management Review Board (MRB), composed of senior NRC managers and an 
Agreement State Liaison to make a determination of program adequacy and 
compatibility.
    As a part of the performance evaluation process, the NRC will take 
any necessary actions to help ensure that Agreement State radiation 
control programs remain adequate and compatible. These actions may 
include more frequent IMPEP reviews of Agreement State programs and 
provision of assistance to help address weaknesses or areas needing 
improvement within an Agreement State program. Enhanced oversight, 
suspension, or termination of an agreement may be considered for 
serious program deficiencies or emergencies. The NRC's actions will be 
based on a well-defined and predictable process and a performance 
evaluation program that will be consistently and fairly applied.

F. Levels of Agreement State Program Review Findings

    The following discussion outlines the nature of the NRC findings 
regarding the NRC's Agreement State review process.
1. Adequacy
Finding 1--Adequate To Protect Public Health and Safety
    If the NRC finds that an Agreement State program has met all of the 
IMPEP review criteria or that only minor deficiencies exist, the NRC 
would find that the Agreement State's program is adequate to protect 
public health and safety.
Finding 2--Adequate To Protect Public Health and Safety With 
Improvement Needed
    If the NRC finds that an Agreement State program protects public 
health and safety, but is deficient in meeting some of the IMPEP review 
criteria, the NRC may find that the Agreement State's program is 
adequate with improvement needed. The NRC would consider in its 
determination plans that the State has to address any of the 
deficiencies noted during the review. In cases where less significant 
Agreement State deficiencies previously identified have been 
uncorrected for a significant period of time, the NRC may also find 
that the program is adequate with improvement needed.
Finding 3--Not Adequate To Protect Public Health and Safety
    If the NRC finds that an Agreement State program is significantly 
deficient in some or all of the review criteria, the NRC would find 
that the Agreement State's program is not adequate to protect public 
health and safety.
2. Compatibility
Finding 1--Compatible
    If the NRC determines that an Agreement State program contains all 
required NRC program elements for compatibility, or only minor 
discrepancies exist, the program would be found compatible.
Finding 2--Not Compatible
    If the NRC determines that an Agreement State has a program that 
disrupts the orderly pattern of regulation among the collective 
regulatory efforts of the NRC and other Agreement States (i.e., creates 
conflicts, gaps, or duplication in regulation), the program would be 
found not compatible.

G. NRC Actions as a Result of These Findings

    The following discussion outlines the options available to the NRC 
as a result of making any of the above findings. The appropriate action 
will be determined on a case-by-case basis by the MRB. Subsequent to an 
Agreement State program review, the findings would be recounted in a 
letter to senior level State management.
    If the NRC finds that a State program is adequate and compatible, 
no further action would be required, except a response by the State to 
any recommendations.
    If serious performance issues are noted during the program review, 
NRC may increase the frequency of contacts with the State to keep 
abreast of developments and conduct onsite follow-up reviews to assure 
that progress is being made on correcting those issues. Circumstances 
that can lead to more frequent contact between the NRC and the 
Agreement State program include the following: identification of 
serious program deficiencies, previously identified deficiencies that 
have gone uncorrected for a significant period of time, and/or 
deficiencies in adopting required compatibility program elements.
    If findings of subsequent reviews show that the State has taken 
appropriate corrective actions and that these actions have shown a 
sustained improvement in performance, the MRB will determine whether 
the status of an

[[Page 33130]]

Agreement State program may be moved to another level of oversight. If 
the MRB finds that all deficiencies have been corrected, it may 
determine that the Agreement State program is adequate and/or 
compatible.
    Options to address serious performance issues include one or more 
of the following actions: monitoring, heightened oversight, probation, 
suspension, and termination.
1. Monitoring
    Monitoring is an informal process that allows the NRC to maintain 
an increased level of communication with an Agreement State Program 
through periodic (usually bimonthly) calls between the NRC and State 
managers/staff. Monitoring is implemented in cases where weaknesses in 
a program have resulted in, or are likely to result in, less than 
satisfactory performance for one or more performance indicators. 
Monitoring may be considered based on results of a routine IMPEP 
review, a follow-up IMPEP review, a periodic meeting or other 
interaction with the Agreement State program. In cases where one or 
more performance indicators remain less than satisfactory or further 
degraded, the MRB will consider placing a State on Heightened 
Oversight.
2. Heightened Oversight
    Heightened Oversight is a formalized process that allows the NRC to 
maintain an increased level of communication with an Agreement State 
usually through monthly calls between the NRC and State managers/staff. 
Heightened Oversight is implemented in cases where significant program 
weaknesses are identified, but are not determined to be serious enough 
to find the program inadequate to protect public health and safety. In 
addition to the monthly calls, a State placed on Heightened Oversight 
is required to submit a Program Improvement Plan describing actions to 
be taken by the State to address the program deficiencies, including 
specific goals and milestones. The Program Improvement Plan allows the 
NRC to monitor the actions being taken and the implementation schedule 
for those actions that address the weaknesses identified based on the 
results of an IMPEP review, a periodic meeting, or other interaction 
with the Agreement State program. If programmatic weaknesses are 
serious enough to find the program inadequate to protect public health 
and safety, or if weaknesses continue throughout the period of 
heightened oversight, the MRB may elect to make a recommendation to the 
Commission to place the Agreement State on probation.
3. Probation
    Probation is a formalized process, requiring Commission approval 
and notification to the Agreement State's governor, which allows the 
NRC to maintain an increased level of communication with an Agreement 
State program. Probation is considered in cases where the State's 
program is found to be not adequate to protect public health and 
safety, or not compatible with the NRC's program. An Agreement State 
may also be placed on probation when it has not addressed previously 
identified program weaknesses. The process allows the NRC to monitor 
the actions being taken by the State to correct the identified 
weaknesses and the implementation schedule for those actions.
    Probation would include all the requirements for Heightened 
Oversight previously described. In addition, the NRC would communicate 
its findings to a higher level of State management. Written 
notification of probationary status would be sent to the Governor of 
the State, a notice published in the Federal Register, and a press 
release issued. Notice would also be given to the State's Congressional 
delegation, the appropriate Congressional committee(s), and all 
Agreement and non-Agreement States.
    If requested, the NRC may provide technical support for the 
maintenance of the regulatory program. The probationary period would 
normally be one year or less. At the end of that time, if the State has 
not addressed the deficiencies, the NRC may extend the probationary 
period or institute suspension or termination proceedings.
4. Suspension
    Section 274j. of the AEA gives the Commission authority to suspend 
all or part of its agreement with a State if the suspension is required 
to protect public health and safety, or if the State has not complied 
with one or more of the requirements of Section 274 of the AEA. In 
cases where program deficiencies are such that the Commission must take 
action to protect public health and safety, or if the program has not 
complied with one or more of the requirements of Section 274 of the 
AEA, the Commission may suspend all or part of its agreement with the 
State. In cases where a State has failed to respond in an acceptable 
manner during the probationary period, suspension may be considered.
    Before reaching a final decision on suspension, the Commission will 
notify the State and provide the State an opportunity for a hearing on 
the proposed suspension. Notice of the proposed suspension will also be 
published in the Federal Register. Suspension, rather than termination, 
would be the preferred option in those cases where the State provides 
evidence that the program deficiencies are temporary and that the State 
is committed to correcting the deficiencies that led to the suspension.
    In addition to the normal suspension authority, Section 274j(2) of 
the AEA also addresses emergency situations and gives the Commission 
authority to temporarily suspend all or part of its agreement with a 
State without notice or hearing if an emergency situation exists 
requiring immediate action to protect public health and safety, and the 
State has failed or is unable to take necessary action within a 
reasonable time.
    In cases where the Commission decides to suspend the agreement, the 
NRC would communicate its findings to a higher level of State 
management. The NRC would issue an order temporarily suspending all or 
part of the 274b. agreement and an order to State licensees notifying 
them of the temporary suspension of all or part of the 274b. agreement. 
Written notification of suspension would be sent to the Governor of the 
State, a notice published in the Federal Register, and a press release 
issued. Notice would also be given to the State's Congressional 
delegation, the appropriate Congressional committee(s), and all 
Agreement and non-Agreement States.
5. Termination
    Section 274j. of the AEA gives the Commission authority to 
terminate all or part of its agreement with a State if such termination 
is required to protect public health and safety, if the State program 
has not complied with one or more of the requirements of Section 274 of 
the AEA (e.g., is found to be not compatible with the Commission's 
program for regulation of agreement materials), or by State request. 
When the Commission finds such significant program deficiencies, the 
Commission would institute formal proceedings to terminate its 
agreement with the State. In cases where the State has requested 
termination of the agreement, notice and opportunity for a hearing are 
not necessary.
    In cases where a State has failed to respond in an acceptable 
manner during the probationary period and there is no prospect for 
improvement, termination will be considered. Before reaching a final 
decision on termination, the

[[Page 33131]]

Commission will notify the State and provide the State an opportunity 
for a hearing on the proposed termination.
    Also, notice of the proposed termination will be published in the 
Federal Register. There may be cases where termination will be 
considered even though the State program has not been placed on 
probation.

H. Program Funding

    Section 274 of the AEA does not allow Federal funding for the 
administration of Agreement State radiation control programs. Section 
274 of the AEA permits the NRC to offer training and other assistance 
to a State in anticipation of entering into an Agreement with the NRC. 
However, it is the NRC policy not to fund the establishment of new 
Agreement State programs. Regarding training, given the importance in 
terms of public health and safety of having well trained radiation 
control program personnel, the NRC may offer certain relevant training 
courses and notify Agreement State personnel of their availability.
I. Regulatory Development
    The NRC and Agreement States will cooperate in the development of 
both new and revised regulations and policies. Agreement States will 
have early and substantive involvement in the development of 
regulations affecting protection of public health and safety and of 
policies affecting administration of the Agreement State program. The 
NRC and Agreement States will keep each other informed about their 
individual regulatory requirements (e.g., regulations or license 
conditions) and the effectiveness of those regulatory requirements so 
that each has the opportunity to make use of proven regulatory 
approaches to further the effective and efficient use of resources.
    The Conference of Radiation Control Program Directors, Inc. (CRCPD) 
assists its members in their efforts to protect the public, radiation 
workers, and patients from unnecessary radiation exposure. CRCPD's 
mission, in part, is ``to promote consistency in addressing and 
resolving radiation protection issues.'' The CRCPD provides a forum for 
centralized communication on radiation protection matters between the 
States and the Federal Government and between individual States. One 
product of this forum is the development of the CRCPD Suggested State 
Regulations for use by its members. The NRC also reviews Suggested 
State Regulations for compatibility.

J. Program Evolution

    The NRC-Agreement State program is dynamic and the NRC and 
Agreement States will continue to jointly assess the NRC and Agreement 
State programs for the regulation of agreement materials to identify 
specific changes that should be considered based on experience or to 
further improve overall performance and effectiveness. The changes 
considered may include possible legislative changes. The program should 
also include the formal sharing of information and views such as 
briefings of the Commission by the Agreement States.

VI. Topics for Additional Comment

    The NRC is requesting additional comments on key topics in response 
to direction received from the Commission on the development of both 
Policy Statements (SRM-SECY-12-0112, ``Policy Statements in Agreement 
State Programs''). Specifically, the NRC is seeking comments on the 
following topics:

1. Section IV. Policy Statement on Adequacy and Compatibility of 
Agreement State Programs, Item 1.B. Compatibility Category B

    (1) To clarify the meaning of a ``significant transboundary 
implication,'' the NRC is proposing to define a significant 
transboundary implication as ``one which crosses regulatory 
jurisdictions, has a particular impact on public health and safety, and 
needs to be addressed to ensure uniformity of regulation on a 
nationwide basis.'' However, the NRC recognizes that the use of the 
word ``particular'' can be vague and cause confusion. The NRC is 
requesting specific comments on the proposed draft definition of 
``significant transboundary implication'' and whether the word 
``particular'' should be replaced with the phrase ``significant and 
direct.''
    (2) Program elements with significant transboundary implications 
are illustrated by examples in the 1997 version of the Policy 
Statement.
    (3) The NRC staff concluded the examples listed are not all-
inclusive and could lead to misinterpretation by stakeholders, 
Agreement States, and the NRC staff. The NRC staff is seeking 
additional comment on whether or not the examples should be retained in 
this section of the policy statement.
    (4) The NRC is requesting comments on the description of 
Compatibility Category B as written in Section IV. of this notice and 
whether or not the movement of goods and services, which historically 
has been a main factor in determining whether an issue has transboundry 
implications, should be considered in the definition of significant 
transboundry implication.
    (5) The NRC is requesting comments on whether or not economic 
factors should be a consideration when making a Compatibility Category 
B determination. The NRC believes that health and safety should be the 
primary consideration in making a Compatibility B determination and 
that economic factors should not be a consideration.
    (6) The NRC is requesting comments on alternative versions of 
wording regarding what types of program elements will be assigned a 
Compatibility Category B designation as well as how limited in number 
these will be. The original Policy Statement published in 1997 stated, 
in part: ``The Commission will limit this category to a small number of 
program elements (e.g., transportation regulations and sealed source 
and device registration certificates) that have significant 
transboundary implications.'' The Working Group proposed keeping the 
language in the 1997 version of the Policy Statement; however, some 
believed that this statement could be interpreted to imply that the 
Commission is limited in its ability to assign rules in this 
compatibility category. Therefore, alternative language was proposed as 
follows: ``The Commission will limit this category to program elements 
that have significant transboundary implications. The Commission 
expects that these will be limited in number.'' Some members of the 
working group disagreed with this alternative language and believed 
that the original language should be retained. The details of this 
discussion are in Enclosure 3 of SECY-12-0112, ``Policy Statements on 
Agreement State Programs.'' In summary, some members of the Working 
Group believed that the original language in the 1997 version of the 
Policy Statement was not intended to dictate the Commission's authority 
but rather was to remind those staff proposing designations of 
compatibility B to the Commission for consideration that program 
elements of this designation should be few as opposed to many and 
should involve only significant transboundary implications. 
Additionally, by removing the distinction that there should be a small 
number of program elements, it deemphasizes the idea that Agreement 
States should be given flexibility when addressing the majority of 
program elements necessary for a compatible program.

[[Page 33132]]

2. Section IV. Policy Statement on Adequacy and Compatibility of 
Agreement State Programs, Item. Summary and Conclusions

    The NRC is requesting comments on alternative versions of wording 
regarding the expectation on the number of regulatory requirements that 
Agreement States will be requested to adopt in an identical manner to 
maintain compatibility. This language would cover all regulatory 
requirements as compatibility category A, B, and C. (Agreement States 
are required to adopt regulatory requirements listed as Health and 
Safety to ensure their program is adequate to protect public health and 
safety, but not for compatibility purposes). In the third paragraph 
under ``Summary and Conclusions'' of the original Policy Statement 
published in 1997, it stated, in part: ``The Commission will minimize 
the number of NRC regulatory requirements that the Agreement States 
will be requested to adopt in an identical manner to maintain 
compatibility.'' The Working Group proposed keeping this sentence as 
written; however, some members of the Working Group believed that that 
this sentence could be interpreted to imply that there is a requirement 
that the Commission minimize such requests to Agreement States, rather 
than a statement that reflects the expectation that situations 
justifying such requests will not arise frequently. The sentence was 
revised as follows: ``The Commission will identify regulatory 
requirements that the Agreement States will be requested to adopt in an 
identical manner to maintain compatibility. The expectation is that 
these requirements will be limited.'' Some members of the Working Group 
disagreed with this revision and believed that the original language 
should be retained. The details of this discussion are in Enclosure 3 
of SECY-12-0112, ``Policy Statements on Agreement State Programs.'' In 
summary, some members of the Working Group believed that the original 
text places emphasis on the effort to minimize unnecessary burden on 
the Agreement States' means to accomplish the same goals as the NRC. 
Additionally, the suggested changes do not encourage careful 
consideration as to whether there are other possible options to meet 
the same intended goal.

3. Performance Based Approach for Determining Compatibility

    Currently, Agreement States are afforded some flexibility to use 
approaches other than rulemaking, such as license conditions or orders, 
to implement requirements. The NRC staff is seeking additional input on 
whether a performance-based approach for determining compatibility of 
an Agreement State's radiation control program should be developed. 
Agreement States could be afforded additional flexibility to use other 
approaches to implement requirements. A performance-based approach 
would not rely on a requirement to adopt within 3 years from the 
effective date of the NRC regulation in order to determine 
compatibility of an Agreement State program. In a separate Commission 
vote paper, the NRC staff will use input from comments received on this 
topic to create a recommendation and an implementation plan to provide 
to the Commission for approval.

4. Adequacy Determinations of Agreement State Programs

    The NRC staff is seeking additional input on whether: (1) a revised 
set of performance metrics could be used to replace, supplement, or 
expand upon IMPEP in determining adequacy of an Agreement State's 
radiation control program; and (2) a single holistic determination can 
be made that would accurately reflect the overall adequacy and 
compatibility of a program. Given the current environment of limited 
resources, it is imperative that the NRC be able to develop a clear set 
of performance based metrics that consider the limitations of an 
Agreement State program and provide increased flexibility without 
compromising public health and safety. In a separate Commission vote 
paper, the NRC staff will use input from comments received on this 
topic to create a recommendation or series of recommendations for 
Commission approval.

VI. Paperwork Reduction Act

    This Policy Statement does not contain information collection 
requirements that are subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.).

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information or an information collection 
requirement unless the requesting documents displays a currently valid 
Office of Management and Budget control number.

    Dated at Rockville, Maryland, this 28th day of May, 2013.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary for the Commission.
[FR Doc. 2013-13066 Filed 5-31-13; 8:45 am]
BILLING CODE 7590-01-P