[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]


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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.

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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]
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