[Federal Register Volume 62, Number 8 (Monday, January 13, 1997)]
[Rules and Regulations]
[Pages 1662-1665]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-718]


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NUCLEAR REGULATORY COMMISSION

10 CFR Parts 150 and 170

RIN 3150-AF49


Recognition of Agreement State Licenses in Areas Under Exclusive 
Federal Jurisdiction Within an Agreement State

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The Nuclear Regulatory Commission (NRC) is amending its 
regulations to clarify that Agreement State licensees can seek 
reciprocal recognition of their license from the NRC when they are 
working within areas of exclusive Federal jurisdiction in Agreement 
States. The amendment also clarifies NRC regulatory requirements for 
reciprocity and the appropriate fees and filing procedures applicable 
to Agreement State licensees operating under reciprocity.

EFFECTIVE DATE: February 27, 1997.

FOR FURTHER INFORMATION CONTACT: Hampton Newsome, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, 
telephone (301) 415-1623, e-mail [email protected] or Mark Haisfield, Office 
of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001, telephone (301) 415-6196, e-mail 
[email protected].

SUPPLEMENTARY INFORMATION:

Background

    On June 18, 1996 (61 FR 30839), the NRC published a proposed rule 
in the Federal Register that would clarify that Agreement State 
licensees could seek reciprocal recognition of their license from the 
NRC when they are working within areas of exclusive Federal 
jurisdiction in Agreement States. Current regulations, subject to 
certain restrictions, allow any person who holds a specific license 
from an Agreement State to conduct activities permitted by that license 
in non-Agreement States and offshore waters using an NRC general 
license. The general license is granted under the authority contained 
in 10 CFR 150.20, ``Recognition of Agreement State Licenses.'' To meet 
the requirements of Sec. 150.20, a licensee must submit an NRC Form 241 
at least 3 days before engaging in the activities (subject to some 
exceptions as noted in Sec. 150.20). If an Agreement State licensee 
does not qualify for a general license under Sec. 150.20, the licensee 
must apply for and obtain a specific license to work in areas of NRC 
jurisdiction.

Need for Regulatory Action

    The NRC believes that there are several problems with the current 
regulations in Sec. 150.20 that necessitated this rulemaking action. 
First, the current regulation does not include provisions to allow 
Agreement State licensees to qualify for an NRC general license when 
operating in areas of exclusive Federal jurisdiction within Agreement 
States. Second, there has been some confusion regarding the NRC 
regulations applicable to Agreement State licensees operating in areas 
of NRC jurisdiction pursuant to Sec. 150.20. Third, Sec. 150.20 does 
not reference the appropriate fee requirements applicable to Agreement 
State licensees who file an NRC Form 241, ``Report of Proposed 
Activities in Non-Agreement States.'' Finally, there has been some 
confusion regarding the filing procedures for this form.

Comments on the Proposed Rule

    The Commission received one letter commenting on the proposed rule. 
A copy of the letter is available for public inspection and copying for 
a fee at the Commission's Public Document Room, located at 2120 L 
Street, NW (Lower Level), Washington, DC.
    Comment. The commenter indicated that NRC's overall system of 
reciprocity is flawed because state regulatory agencies do not have 
meaningful investigatory or enforcement powers to regulate licensees 
operating under reciprocity. In addition, the commenter believes that 
the current reciprocity system reduces the participation of citizens in 
the regulatory process because the regulatory agency in this 
commenter's state does not, in the commenter's view, exert adequate 
regulatory authority over licensees operating under reciprocity.
    The commenter also had several specific objections to the proposed 
rule. The commenter indicated that this rulemaking will reduce 
recordkeeping requirements because of certain language changes proposed 
regarding recordkeeping at the licensee's Agreement State office. In 
addition, the commenter believes that the rule will remove a variety of 
requirements including existing fee requirements, the existing 3-day 
advance deadline for filing with the Commission, and existing reporting 
and compliance requirements applicable to radiographers. Finally, the 
commenter believes that the rulemaking inappropriately broadens the 
authority of NRC Regional Administrators to grant, by telephone, a 
waiver of the 3-day filing requirement before starting work under the 
general license.
    Response. The NRC has full enforcement and inspection authority to 
regulate the activities of Agreement State licensees operating under 
reciprocity in areas of NRC jurisdiction. Agreement State licensees 
operating under reciprocity must comply with all of NRC's regulatory 
requirements. As such, the Commission believes that an appropriate 
avenue for citizen access in addressing issues of reciprocity is the 
NRC itself. If an individual has safety concerns about the conduct of a 
licensee operating under reciprocity, that individual should contact 
NRC and their concerns will be addressed through NRC's allegation 
review process.
    Contrary to the commenter's claims that this rulemaking involves 
more than a clarification, it is noted that the proposed rule either 
codifies current NRC regulatory practice (with respect to reciprocity 
in areas of exclusive Federal jurisdiction) or clarifies existing 
requirements applicable to licensees operating under reciprocity in 
areas of NRC jurisdiction. While this rulemaking may facilitate 
increased use of this general license provision, the Commission does 
not view this as a concern given the full regulatory power that NRC has 
over these licensees with respect to activities conducted under 
reciprocity.

[[Page 1663]]

    As to the commenter's specific concerns, the Commission notes that 
this rulemaking will not effect the reporting requirements in 
Sec. 150.20. Language in Sec. 150.20(a) has been clarified to indicate 
that, in order to qualify for the general license, a person must have a 
specific license from an Agreement State where the licensee maintains 
an office for directing the licensed activity and for retaining 
radiation safety records. These editorial changes clarify, but do not 
alter any existing recordkeeping requirements. The addition of language 
in this rulemaking related to fees simply serves to provide additional 
notice to licensees that certain fee requirements in 10 CFR Part 170 
apply to Agreement State licensees operating under reciprocity. This 
rulemaking does not remove or alter existing fee requirements.
    Similarly, this rulemaking does not involve any change to the 
current time requirements for reciprocity filings. In most cases, 
licensees must file the NRC Form 241 at least 3 days before engaging in 
activities under reciprocity. However, as the proposed rule explained 
in more detail, the Regional Administrator may waive the 3-day 
requirement, because of an emergency or other reasons, provided the 
licensee receives authorization and files the appropriate information 
within 3 days. In addition, this rule does not broaden the authority 
for telephone waivers of the 3-day filing requirement. While this 
rulemaking does add language to indicate that a waiver may be given 
``because of an emergency or other reasons,'' this addition simply 
provides an example of an instance when a waiver may be appropriate. As 
such, this rulemaking does not expand or otherwise change the Regional 
Administrators' current discretion to grant waivers to the 3-day filing 
requirement.
    Finally, contrary to the commenter's assertions, this rulemaking 
does not eliminate any existing requirements applicable to 
radiographers operating under reciprocity in areas of NRC jurisdiction. 
However, the reference to a Part 71 requirement applicable to 
radiographers in the proposed rule has been eliminated in the final 
rule because it is not necessary. The present rule does not alter the 
requirements applicable to radiographers operating under reciprocity.
    No changes in the rule have been made in response to this comment. 
Minor editorial changes have been made to the rule (e.g., in 
Sec. 150.20(b) the word ``valid'' in the proposed rule has been changed 
to ``applicable'' and other changes have been made in this section for 
clarification or grammatical purposes).

Regulatory Action

Exclusive Federal Jurisdiction

    The current wording of Sec. 150.20 has created confusion for 
Agreement State licensees operating in areas of exclusive Federal 
jurisdiction within Agreement States. An area of exclusive Federal 
jurisdiction is an area over which the Federal Government exercises 
legal control without interference from the jurisdiction and 
administration of State law. Areas of exclusive Federal jurisdiction 
exist in both Agreement and non-Agreement States. Because the Federal 
Government has sole authority over areas of exclusive Federal 
jurisdiction in Agreement States, the NRC has jurisdiction over Atomic 
Energy Act activities conducted in those areas. Section 150.20 contains 
the notification procedures (use of an NRC Form 241) regarding general 
licenses for Agreement State licensees seeking to operate in areas of 
NRC jurisdiction (e.g., non-Agreement States and offshore waters).
    However, Sec. 150.20 does not indicate that the NRC may grant 
reciprocity to Agreement State licensees to conduct activities in areas 
of exclusive Federal jurisdiction within an Agreement State. The 
current regulation only authorizes a general license for activities 
conducted in non-Agreement States, whether or not in an area of 
exclusive Federal jurisdiction within that non-Agreement State, and 
offshore waters. Despite the omission in the regulation, the NRC staff, 
under current practice, permits an Agreement State licensee to operate 
in an area of exclusive Federal jurisdiction within the Agreement State 
if the licensee submits an acceptable NRC Form 241.
    The lack of a specific reference to areas of exclusive Federal 
jurisdiction has caused confusion for licensees, Agreement States, and, 
occasionally, the NRC staff in interpreting the coverage of the 
reciprocity provisions in Sec. 150.20. This rulemaking amends 
Sec. 150.20 to provide a specific reference to areas of exclusive 
Federal jurisdiction.

Regulatory Requirements Applicable to Sec. 150.20 Licensees

    The specific references to other NRC regulatory requirements in 
Sec. 150.20 has also been a source of confusion. According to 
Sec. 150.20(b), persons operating under the general license must comply 
with a variety of specific NRC regulatory requirements. However, 
Sec. 150.20 does not specifically reference all NRC regulations that 
are applicable to materials licensees. The revised Sec. 150.20 clearly 
indicates that licensees operating pursuant to the rule's provisions 
must comply with all NRC regulations applicable to materials licensees.
    This amendment is consistent with the original intent of the rule. 
When originally issued in 1962 (27 FR 1351; February 14, 1962), 
Sec. 150.20 required Agreement State licensees to comply with ``the 
appropriate provisions of 10 CFR Parts 20, 30, 31, 40, and 70'' of the 
Commission's regulations. The rule required compliance with all NRC 
regulations applicable to NRC materials licensees at that time. In 
1965, many of the requirements in 10 CFR Part 30 were relocated to 
newly created regulatory provisions in 10 CFR Parts 32, 33, 34, 35, and 
36 (30 FR 8185; June 26, 1965). A conforming amendment to Sec. 150.20 
was not made in response to this change. Since 1965, specific 
requirements have been added to Sec. 150.20 that may have created the 
impression that certain NRC requirements otherwise applicable to 
materials licensees are not applicable to general licensees under 
Sec. 150.20. This is not the case. It is NRC's position that Agreement 
State licensees operating in areas of NRC jurisdiction pursuant to 
Sec. 150.20 must comply with those regulations applicable to NRC 
licensees. This amendment will clarify the applicable requirements.

Fees Imposed on Agreement State Licensees Operating Under Reciprocity

    The amendment adds appropriate references to Sec. 150.20 regarding 
the relevant fee requirements in 10 CFR Part 170. The fee schedule in 
10 CFR Part 170 is being updated to indicate that there will be a 
charge for licensee revisions to an NRC Form 241 in addition to the 
initial filing fee. A clarification to an NRC Form 241 does not require 
a fee. The NRC Form 241 is being revised to include, in the 
instructions on the form, information concerning revisions and 
clarifications.
    In addition, this amendment involves a minor conforming change to 
the schedule for materials fees in Sec. 170.31, ``Schedule of Fees for 
Materials Licenses and Other Regulatory Services, Including 
Inspections, and Import and Export Licenses,'' to clarify that the fee 
requirement applies to activities conducted under reciprocity pursuant 
to Sec. 150.20 regardless of the location of the activities.

Filing Procedures

    The amendment also clarifies the procedures for filing an NRC Form 
241 for reciprocity described in Sec. 150.20(b).

[[Page 1664]]

The clarifications include identifying what needs to be submitted, 
specifying the procedure to use when an emergency filing is necessary, 
and making revisions to the initial filing. These clarifications do not 
impose any additional requirements on the Agreement State licensee.

Enforcement

    If an Agreement State licensee fails to notify the NRC before 
conducting work in an area of exclusive Federal jurisdiction, the NRC 
is denied an opportunity to inspect the activity to determine that it 
is being conducted safely and in accordance with NRC requirements. The 
current NRC Enforcement Policy (``General Statement of Policy and 
Procedures for NRC Enforcement Actions'', NUREG 1600) contains an 
example in Supplement VI.C.9 of failure to submit an NRC Form 241 in 
accordance with 10 CFR 150.20. Under the Enforcement Policy, this 
violation is categorized at Severity Level III, which constitutes 
escalated enforcement action. However, absent extraordinary 
circumstances, the NRC will not take enforcement action against an 
Agreement State licensee for such a violation if the licensee has 
evidence that it received a determination, before beginning work, from 
a Federal Agency that the area of work is not under exclusive Federal 
jurisdiction. This evidence may be a written statement from the Federal 
Agency that provided the determination and the date that it was 
provided, or a written record made by the licensee with the name and 
title of the person at the Federal Agency who provided the 
determination and the date that it was provided.

Compatibility of Agreement State Regulations

    The provisions in Sec. 150.20 will continue to be a Division 1 item 
of compatibility. The Commission recognizes that portions of the rule 
apply to matters under NRC's jurisdiction (e.g., offshore waters and 
areas of exclusive Federal jurisdiction). The Agreement States should 
fashion their own rules implementing this provision in a manner 
consistent with their authority. The Commission is currently developing 
implementing procedures for a new Adequacy and Compatibility Policy 
that was approved by the Commission on June 29, 1995. The Commission 
will continue to apply the current compatibility designation to 
Sec. 150.20 until it gives its final approval to the implementing 
procedures for the new Policy.

Environmental Impact: Categorical Exclusion

    The Commission has determined that this regulation is the type of 
action described as a categorical exclusion in 10 CFR 51.22(c)(1). 
Therefore, neither an environmental impact statement nor an 
environmental assessment has been prepared for this regulation.

Paperwork Reduction Act Statement

    This rule does not contain a new or amended information collection 
requirement subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). Existing requirements were approved by the Office of 
Management and Budget, approval number 3150-0032.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a currently 
valid OMB control number.

Regulatory Analysis

    This final rule does not impose any new requirements or additional 
costs to licensees because the rulemaking codifies current practice 
that allows Agreement State licensees to work under an NRC general 
license. Because the rulemaking improves the clarity and consistency of 
the NRC's regulations, it will benefit Agreement State licensees 
operating in areas of exclusive Federal jurisdiction.
    This rule will result in a minor reduction in NRC resources 
(estimated to be one-sixth of a staff year per year) currently being 
expended to explain our fee schedule and to clarify for licensees and 
Agreement States the conditions under which an Agreement State licensee 
can operate within an area of exclusive Federal jurisdiction. NRC 
resources to amend Sec. 150.20 are estimated to be about one-half of a 
staff year, which is a cost effective, one-time use of resources. This 
constitutes the regulatory analysis for this final rule.

Regulatory Flexibility Certification

    As required by the Regulatory Flexibility Act of 1980, 5 U.S.C. 
605(b), the Commission certifies that this rule does not have a 
significant economic impact upon a substantial number of small 
entities.
    The final rule does not impose any new requirements or additional 
costs to licensees because the rule codifies current practice that 
allows Agreement State licensees to work under an NRC general license. 
Because this rule improves the clarity and consistency of NRC's 
regulations, it will benefit Agreement State licensees operating in 
areas of exclusive Federal jurisdiction.

Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement Act of 
1996, the NRC has determined that this action is not a major rule and 
has verified this determination with the Office of Information and 
Regulatory Affairs, Office of Management and Budget.

Backfit Analysis

    The NRC has determined that the backfit rule, 10 CFR 50.109, does 
not apply to this final rule and, therefore, a backfit analysis is not 
required, because these amendments do not involve any provisions that 
would impose backfits as defined in 10 CFR 50.109(a)(1).

List of Subjects

10 CFR Part 150

    Criminal penalties, Hazardous materials transportation, 
Intergovernmental relations, Nuclear materials, Reporting and 
recordkeeping requirements, Security measures, Source material, Special 
nuclear material.

10 CFR Part 170

    Byproduct material, Import and export licenses, Intergovernmental 
relations, Non-payment penalties, Nuclear materials, Nuclear power 
plants and reactors, Source material, Special nuclear material.

    For the reasons set out in the preamble and under the authority of 
the Atomic Energy Act of 1954, as amended, the Energy Reorganization 
Act of 1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting 
the following amendments to 10 CFR Parts 150 and 170.

PART 150--EXEMPTIONS AND CONTINUED REGULATORY AUTHORITY IN 
AGREEMENT STATES AND IN OFFSHORE WATERS UNDER SECTION 274

    1. The authority citation for Part 150 continues to read as 
follows:

    Authority: Sec. 161, 68 Stat. 948, as amended, sec. 274, 73 
Stat. 688 (42 U.S.C. 2201, 2021); sec. 201, 88 Stat. 1242, as 
amended (42 U.S.C. 5841).Sections 150.3, 150.15, 150.15a, 150.31, 
150.32 also issued under secs. 11e(2), 81, 68 Stat. 923, 935, as 
amended, secs. 83, 84, 92 Stat. 3033, 3039 (42 U.S.C. 2014e(2), 
2111, 2113, 2114). Section 150.14 also issued under sec. 53, 68 
Stat. 930, as amended (42 U.S.C. 2073). Section 150.15 also issued 
under secs. 135, 141, Pub. L. 97-425, 96 Stat. 2232, 2241 (42 U.S.C. 
10155, 10161). Section 150.17a also issued under

[[Page 1665]]

sec. 122, 68 Stat. 939 (42 U.S.C. 2152). Section 150.30 also issued 
under sec. 234, 83 Stat. 444 (42 U.S.C. 2282).

    2. Section 150.20 is amended by revising paragraphs (a), the 
introductory text of (b), (b)(1), and the introductory text of (c), 
redesignating paragraphs (b)(2) through (b)(4) as paragraphs (b)(3) 
through (b)(5), revising redesignated paragraphs (b)(3) and (b)(4), and 
adding a new paragraph (b)(2) to read as follows:


Sec. 150.20  Recognition of Agreement State licenses.

    (a)(1) Provided that the provisions of paragraph (b) of this 
section have been met, any person who holds a specific license from an 
Agreement State, where the licensee maintains an office for directing 
the licensed activity and retaining radiation safety records, is 
granted a general license to conduct the same activity in--
    (i) Non-Agreement States;
    (ii) Areas of exclusive Federal jurisdiction within Agreement 
States; and
    (iii) Offshore waters.
    (2) The provisions of paragraph (a)(1) of this section do not apply 
if the specific Agreement State license limits the authorized activity 
to a specific installation or location.
    (b) Notwithstanding any provision to the contrary in any specific 
license issued by an Agreement State to a person engaging in activities 
in a non-Agreement State, in an area of exclusive Federal jurisdiction 
within an Agreement State, or in offshore waters under the general 
licenses provided in this section, the general licenses provided in 
this section are subject to all the provisions of the Act, now or 
hereafter in effect, and to all applicable rules, regulations, and 
orders of the Commission including the provisions of Secs. 30.7 (a) 
through (f), 30.9, 30.10, 30.14(d), 30.34, 30.41, and 30.51 to 30.63, 
inclusive, of Part 30 of this chapter; Secs. 40.7 (a) through (f), 
40.9, 40.10, 40.41, 40.51, 40.61, 40.63 inclusive, 40.71 and 40.81 of 
Part 40 of this chapter; Secs. 70.7 (a) through (f), 70.9, 70.10, 
70.32, 70.42, 70.51 to 70.56, inclusive, 70.60 to 70.62, inclusive, and 
to the provisions of 10 CFR Parts 19, 20, and 71 and subpart B of Part 
34, Secs. 39.15 and 39.31 through 39.77, inclusive, of Part 39 of this 
chapter. In addition, any person engaging in activities in non-
Agreement States, in areas of exclusive Federal jurisdiction within 
Agreement States, or in offshore waters under the general licenses 
provided in this section:
    (1) Except as specified in paragraph (c) of this section, shall, at 
least 3 days before engaging in each activity for the first time in a 
calendar year, file a submittal containing an NRC Form 241, ``Report of 
Proposed Activities in Non-Agreement States,'' 4 copies of its 
Agreement State specific license, and the appropriate fee as prescribed 
in Sec. 170.31 of this chapter with the Regional Administrator of the 
U.S. Nuclear Regulatory Commission Regional Office listed on the NRC 
Form 241 and in Appendix D of Part 20 of this chapter for the Region in 
which the Agreement State that issued the license is located. If a 
submittal cannot be filed 3 days before engaging in activities under 
reciprocity, because of an emergency or other reason, the Regional 
Administrator may waive the 3-day time requirement provided the 
licensee:
    (i) Informs the Region by telephone, facsimile, an NRC Form 241, or 
a letter of initial activities or revisions to the information 
submitted on the initial NRC Form 241;
    (ii) Receives oral or written authorization for the activity from 
the Region; and
    (iii) Within 3 days after the notification, files an NRC Form 241, 
4 copies of the Agreement State license, and the fee payment.
    (2) Shall file an amended NRC Form 241 or letter and the 
appropriate fee as prescribed in Sec. 170.31 of this chapter with the 
Regional Administrator to request approval for changes in work 
locations, radioactive material, or work activities different from the 
information contained on the initial NRC Form 241.
    (3) Shall not, in any non-Agreement State, in an area of exclusive 
Federal jurisdiction within an Agreement State, or in offshore waters, 
transfer or dispose of radioactive material possessed or used under the 
general licenses provided in this section, except by transfer to a 
person who is --
    (i) Specifically licensed by the Commission to receive this 
material; or
    (ii) Exempt from the requirements for a license for material under 
Sec. 30.14 of this chapter.
    (4) Shall not, under the general license concerning activities in 
non-Agreement States or in areas of exclusive Federal jurisdiction 
within Agreement States, possess or use radioactive materials, or 
engage in the activities authorized in paragraph (a) of this section, 
for more than 180 days in any calendar year, except that the general 
license in paragraph (a) of this section concerning activities in 
offshore waters authorizes that person to possess or use radioactive 
materials, or engage in the activities authorized, for an unlimited 
period of time.
* * * * *
    (c) A person engaging in activities in offshore waters under the 
general license provided for that purpose in paragraph (a) of this 
section need not file an NRC Form 241 with the Commission under 
paragraph (b)(1) of this section provided that:
* * * * *

PART 170--FEES FOR FACILITIES, MATERIALS, IMPORT AND EXPORT 
LICENSES, AND OTHER REGULATORY SERVICES UNDER THE ATOMIC ENERGY ACT 
OF 1954, AS AMENDED

    3. The authority citation for Part 170 continues to read as 
follows:

    Authority: 31 U.S.C. 9701, sec. 301, Pub. L. 92-314, 86 Stat. 
222 (42 U.S.C. 2201w); sec. 201, 88 Stat. 1242, as amended (42 
U.S.C. 5841); sec 205, Pub L. 101-576, 104 Stat 2842, (31 U.S.C. 
902).


Sec. 170.31  [Amended]

    4. Section 170.31 is amended by removing the phrase ``in a non-
Agreement State'' from Category 16 of the Schedule of Materials Fees.

    Dated at Rockville, Maryland, this 30th day of December, 1996.

    For the Nuclear Regulatory Commission.
James M. Taylor,
Executive Director for Operations.
[FR Doc. 97-718 Filed 1-10-97; 8:45 am]
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