[Federal Register Volume 61, Number 16 (Wednesday, January 24, 1996)]
[Proposed Rules]
[Pages 1857-1860]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-965]



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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 2 and 150

[Docket No. PRM-150-3]


Measurex Corp.; Denial of Petition for Rulemaking

AGENCY: Nuclear Regulatory Commission.


[[Page 1858]]

ACTION: Denial of petition for rulemaking.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition 
for rulemaking submitted by the Measurex Corporation. The petition was 
docketed by the Commission, and was assigned Docket No. PRM-150-3. The 
petitioner requested that the NRC amend its regulations concerning 
Agreement State regulation of byproduct material to require Agreement 
States to notify the NRC of proposed and completed regulatory actions 
and to require that the NRC publish notices of Agreement States' 
proposed and completed rulemakings. The NRC is denying the petition 
because there would be no safety benefit by NRC actions to consolidate 
and further disseminate this information; the process of collecting and 
disseminating this information would place a significant administrative 
and economic burden on the NRC and the Agreement States; and the 
information sought by the petitioner on proposed and completed 
Agreement State rulemakings is already available from a number of 
sources.

ADDRESSES: Copies of the petition for rulemaking, the public comments 
received, the petitioner's response to these comments, the NRC's letter 
of denial to the petitioner, and the Congressional letters are 
available for public inspection or copying in the NRC Public Document 
Room, 2120 L Street NW. (Lower Level), Washington, DC.

FOR FURTHER INFORMATION CONTACT: Tony DiPalo, Office of Nuclear 
Regulatory Research, U.S. Nuclear Regulatory Commission, T9F31, 
Washington, DC 20555-0001. Telephone: 301-415-6191.

SUPPLEMENTARY INFORMATION:

Background

    The Nuclear Regulatory Commission (NRC) received a petition for 
rulemaking dated April 7, 1994, submitted by Ms. Elsa Nimmo for the 
Measurex Corporation, a manufacturer, distributor, and supplier of 
services for process control sensors used by NRC and Agreement State 
licensees throughout the United States. The petition was docketed as 
PRM-150-3 on April 12, 1994.
    The NRC published a notice that announced the receipt of the 
petition and requested public comment on the suggested amendments in 
the Federal Register of October 5, 1994 (59 FR 50706). The petitioner 
requested that the NRC amend its regulations in 10 CFR part 150 that 
concern Agreement State regulation of byproduct material. Specifically, 
the petitioner sought an amendment to 10 CFR 150.31 that would have 
required each Agreement State to notify the NRC of proposed and 
completed changes to that State's regulations.
    The petitioner also sought an amendment to 10 CFR part 2 that would 
have required the NRC to publish notices of these regulatory changes in 
the Federal Register. The petitioner noted that current NRC 
requirements contained in Secs. 2.804 through 2.807 of Title 10 of the 
Code of Federal Regulations establish a procedure for the publication 
of proposed changes, participation by interested persons, and 
notification of changes; however, the petitioner believes that a less 
detailed set of rulemaking and notification procedures is specified in 
10 CFR 150.31. The petitioner also states that, in their experience, 
the 10 CFR 150.31 rulemaking and notification procedure fails to 
provide a mechanism for persons located outside any particular 
Agreement State to learn about proposed changes in that State's 
regulations. In the absence of such a mechanism, the petitioner 
believes that they and others are excluded from the opportunity clearly 
intended by 10 CFR 150.31 to participate in discussion of the proposed 
rules.
    The petitioner indicated that although it makes a substantial 
effort to learn about 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 the Agreement States. For example, the Petitioner noted 
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 believed that the proposed amendments to 10 
CFR parts 2 and 150 would alert the NRC and Agreement State licensees 
of all relevant Agreement State requirements and permit them to more 
fully participate in the rulemaking process.

Discussion of the Petition

    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 may affect licensees and their customers in 
those 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 the petition for 
rulemaking, the petitioner included copies of correspondence with 
Agreement State radiation control boards and the NRC, and cited 
specific cases with the Agreement States of Oregon and Texas that it 
believed illustrated why the current rules are deficient and in need of 
revision.
    In Oregon, for example, regulatory changes were proposed that would 
have eliminated 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. These regulatory changes were never approved. 
Nevertheless, the petitioner states that had Oregon's proposed 
regulations been adopted, it would be able to ship sensors to a 
customer in Oregon only after confirming that the customer has an 
appropriate specific license. The petitioner was concerned that 
interested parties were not provided ample opportunity to comment on 
Oregon's proposed rules or to participate in their rulemaking process. 
The petitioner felt that although it 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. 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 indicated that it only became aware of the 
proposed changes to Oregon's regulations in February 1994 when 
informally contacted by an out-of-state health physics colleague.
    In the case of Texas, the petitioner indicated that they did not 
learn about certain regulatory modifications adopted in 1993 by the 
Agreement State of Texas until after these rules became effective. At 
that time, the petitioner believed that the involved agency, in this 
case the Texas Department of Health, Division of licensing, 
Registration and Standards, Bureau of Radiation Control, knew these 
changes would affect out-of-State firms since the petitioner was 
notified in writing by this agency in September 1993 about some of the 
changes after they had been adopted. However, the petitioner felt they 
had no opportunity to participate in the rulemaking process and also 

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believed these regulatory modifications would directly affect its 
business in Texas.
    The petitioner noted that some State's radiation control agencies 
are conscientious in notifying out-of-state distributors or service 
groups about proposed and completed regulatory changes, but many do not 
make such an effort. For these reasons, the petitioner indicated that 
it and other similar service groups 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 
also felt that its effort to gain information regarding Agreement State 
regulatory changes was costly, time-consuming, and often ineffective.
    To alleviate this situation, the petitioner proposed that 10 CFR 
150.31 be amended to require Agreement States to notify the NRC of both 
proposed and completed regulatory actions to adopt, amend, or repeal 
regulations and that 10 CFR Part 2 be amended to require the NRC to 
publish Agreement State notices of proposed and completed rulemakings 
in the Federal Register. However, with regard to 10 CFR 150.31 the 
staff noted that this requirement applies only to AEA 11 (e) 2 
byproduct material (Uranium Mill Tailings) rather than regular 
``Byproduct Materials.''

Summary of Public Comments

    The October 5, 1994, Notice of receipt invited interested parties 
to submit written comments concerning the petition. The NRC received 17 
comment letters. Ten comment letters were received from States 
represented by their Departments of Health, Natural Resources, 
Environmental Quality, and Nuclear Safety; 4 came from industry 
representing distributors and suppliers of services for individual 
process measurement systems; 1 from a private consultant, 1 from a 
citizens group, and 1 joint comment representing two professional 
groups.
    The petition proposed two amendments. The first was to amend 10 CFR 
150.31 to (in most cases) require Agreement States to notify the NRC of 
both proposed and completed action to adopt, amend, or repeal 
regulations. The second was to amend 10 CFR Part 2 to require the NRC 
to publish in the Federal Register the Agreement State Notices of 
proposed and completed rulemakings.
    Of the 17 comments received, 11 opposed the petition, 5 favored 
granting the petition through rulemaking, and 1 supported the 
petition's request but, preferred a simpler approach as an alternative 
to rulemaking. The commenters opposed to the petition did so on the 
following basis:
    (i) A State respondent indicated that its State properly and 
routinely notifies the NRC of proposed and completed regulatory actions 
at both the headquarters and regional level. The respondent also 
indicated that its State routinely seeks comments from the NRC before 
promulgation of a State regulation to ensure the NRC is aware of these 
revisions.
    (ii) A State respondent cited an example given by the petitioner of 
a misunderstanding about notification of a proposed rule the State was 
developing that was successfully resolved. The respondent indicated 
that the State not only gave the party involved (in this case the 
Measurex Corporation) the information requested, but the comment period 
was extended to allow the petitioner time to formulate comments for 
submittal to the Oregon State Public Hearing Officer. The petitioner's 
comments were reflected in the final rule. Oregon, has modified its 
computerized mailing lists and, in the future, the petitioner will 
receive routine mailings of all regulatory notices.
    (iii) A State respondent indicated that it can be safely assumed 
that all Agreement States have some minimum notice requirement for the 
purpose of due process, and that seeking local relief is far preferable 
to a national rule. Therefore, if the petitioner has a problem with the 
due process requirements of a particular State, relief lies with that 
State's officials and the State's legislative/political process. Along 
this line, several State respondents indicated that they have their own 
laws and administrative procedures which they follow for rulemaking. 
Under these requirements, Agreement States maintain registers in which 
proposed and completed regulations are published and to which 
interested parties can subscribe. One State commenter noted that under 
its public records law it is required to make copies available on 
request of its proposed and completed regulations. Another State 
respondent indicated that the name, address, and telephone number of 
Agreement State officials can be found in the Conference of Radiation 
Control Program Directors' Directory of Personnel Responsible for 
Radiological Health Programs.
    (iv) One State respondent indicated that under its Administrative 
Procedure Act it is required to notify interested parties of rule 
changes and to hold public hearings to receive comments which can also 
be delivered in writing.
    (v) A joint response from two professional groups indicated they 
were concerned with the rising cost of doing business with both the NRC 
and the Agreement States and therefore, were opposed to any effort that 
would effect further increases. They believed the information requests 
of the petition reflect the cost of doing business with the various 
Agreement States and that the petitioner should utilize its own 
resources in gathering the information necessary to become aware of a 
State's relevant requirements. One State respondent indicated that the 
petition would increase costs to State and Federal Governments and to 
those they regulate because Agreement States and the NRC obtain 
revenues from fees and/or general fund monies. Thus, the cost of 
promulgating proposed State regulations in the Federal Register will 
ultimately be born by all radioactive material licensees and the 
general public. Because this expenditure will only benefit a small 
number of service groups that distribute generally licensed devices, it 
would be more economical if these groups requested copies of the 
desired information from the States within which they plan to do 
business. A State respondent indicated that the cost to the petitioner 
for producing a periodic form letter and postage would be small 
compared to the added bureaucracy if the NRC was required to develop a 
program to gather the desired information from the Agreement States and 
publish it in the Federal Register.
    (vi) Several State respondents expressed concern over the 
additional administrative and economic burden that would be imposed on 
the Agreement States because of proposed new procedural requirements in 
the petition. Furthermore, these proposed requirements may create 
conflict with existing State statutes concerning rulemaking time 
frames, or may further delay an already lengthy rulemaking process. One 
State respondent indicated that it was doubtful that their State 
General Assembly would consider an amendment to a State statute that 
only accommodates one agency.
    The commenters favoring the petition did so on the following basis:
    (i) One industry respondent indicated that some Agreement States 
maintain an effective communication program of notifying interested 
parties of proposed and completed regulatory actions in their States, 
but others may not. Thus, companies like the petitioner's must make a 
substantial effort to acquire the desired information. Another industry 
respondent indicated it had difficulty obtaining copies of current 
regulations and any information on proposed 

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regulatory changes from some Agreement States.
    (ii) An industry respondent indicated that early notification of 
potential revisions in Agreement State regulations would alert the NRC 
to possible rule inconsistencies and non-compatibility problems before 
changes become final, which would facilitate a greater awareness and 
understanding of the changes.
    (iii) A public interest group expressed concern that the 
difficulties encountered by the petitioner may stem from State 
government favoritism toward in-State businesses to the detriment of 
out-of-State entities who are affected by the State's actions.
    (iv) One respondent, a private consultant, indicated that without a 
mechanism for learning about proposed and completed regulatory actions 
in Agreement States, it was too time consuming and expensive for 
individuals to obtain this information.
    (v) One industry respondent indicated that although there were a 
number of ways interested parties could obtain the desired regulatory 
information requested by the petition, they did not assume that these 
parties would be informed. In addition, it is believed there is a lack 
of uniformity and consistency among the Agreement States in how 
interested parties are notified of proposed and completed regulations. 
This respondent, while supporting the petition, indicated he preferred 
a simpler solution (unspecified) for providing uniform and timely 
information to parties interested in Agreement State regulations. He 
also believed the Organization of Agreement States was in the best 
position to develop such a solution.

Reasons for Denial

    The NRC reviewed the amendments proposed in the petition, 
considered the comments received, and concluded that the arguments made 
by the petitioner are not sufficient to warrant amending 10 CFR parts 2 
and 150. The reasons for denial are as follows:
    1. The petition does not discuss any situation in which the public 
health and safety is an issue or any apparent safety benefit that will 
be derived by collecting and disseminating the information requested by 
the petition. Thus, the NRC foresees no basis for the additional 
administrative burden or increased costs to collect and disseminate 
this information in the manner suggested by the petition.
    2. The process of collecting and disseminating the information 
pursuant to the petition would place an administrative and economic 
burden on both the NRC and Agreement States. The petitioner did not 
address the costs for developing the information system that would be 
necessary to implement the proposed amendments in the petition or 
consider the reporting burdens that would be imposed on both the 
Agreement States and the NRC to support the operation of such a system. 
The petitioner did not consider the costs associated with system 
operational problems, the need for additional staff resources at both 
the NRC and Agreement States, the need for administrative procedures 
for tracking information and documentation system instructions, and the 
costs for periodically publishing notices of the information under NRC 
auspices in the Federal Register.
    3. The information sought by the petitioner is already available 
through other mechanisms. Based on a review of the public comments, 
several means presently exist by which interested parties who are not 
licensed in a particular Agreement State can access information on 
proposed or completed regulation changes in a particular Agreement 
State. As previously mentioned, several Agreement State respondents 
indicated that, as required by State statute, they maintain state 
registers in which proposed and completed regulatory actions of that 
State are published. The information on the State Registers is 
available to interested parties on a subscription basis, by mail, or by 
telephone.
    The Conference of Radiation Control Program Directors, Inc., also 
maintains a directory that includes the name, address, and telephone 
number of Agreement State public officials responsible for radiological 
health programs. By making a telephone call to the appropriate 
Agreement State public official, a requester can obtain information 
about the latest proposed and completed regulatory actions in that 
State. In addition, the NRC maintains a list of Agreement State 
contacts that includes telephone and facsimile numbers and addresses. 
Interested parties can call or write to the NRC to obtain this 
information. The NRC also sponsors open meetings twice a year to 
discuss Agreement State and NRC regulatory matters.
    Because of the potential administrative burden and added costs 
associated with the development and operation of an information system 
to support the requests in the petition without an accompanying health 
and safety benefit, and because alternative means are currently 
available to the petitioner and interested parties to acquire the 
desired information about Agreement State regulatory activities, the 
petition for rulemaking filed by the Measurex Corporation (PRM-150-3) 
is denied.

    Dated at Rockville, MD, this 26th day of December 1995.

    For the Nuclear Regulatory Commission.
Hugh L. Thompson, Jr.,
Acting Executive Director for Operations.
[FR Doc. 96-965 Filed 1-23-96; 8:45 am]
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