[Federal Register Volume 68, Number 67 (Tuesday, April 8, 2003)]
[Notices]
[Pages 17086-17090]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-8527]


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NUCLEAR REGULATORY COMMISSION


State of Wisconsin: NRC Staff Draft Assessment of a Proposed 
Agreement Between the Nuclear Regulatory Commission and the State of 
Wisconsin

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of a proposed agreement with the State of Wisconsin.

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SUMMARY: By letter dated August 21, 2002, former Governor Scott 
McCallum of Wisconsin requested that the U.S. Nuclear Regulatory 
Commission (NRC) enter into an Agreement with the State as authorized 
by section 274 of the Atomic Energy Act of 1954, as amended (Act).
    Under the proposed Agreement, the Commission would relinquish, and 
Wisconsin would assume, portions of the Commission's regulatory 
authority exercised within the State. As required by the Act, NRC is 
publishing the proposed Agreement for public comment. NRC is also 
publishing the summary of a draft assessment by the NRC staff of the 
Wisconsin regulatory program. Comments are requested on the proposed 
Agreement and the staff's draft assessment which finds the Program 
adequate to protect public health and safety and compatible with NRC's 
program for regulation of Agreement material.
    The proposed Agreement would release (exempt) persons who possess 
or use certain radioactive materials in Wisconsin from portions of the 
Commission's regulatory authority. The Act requires that NRC publish 
those exemptions. Notice is hereby given that the pertinent exemptions 
have been previously published in the Federal Register and are codified 
in the Commission's regulations as 10 CFR part 150.

DATES: The comment period expires May 8, 2003. Comments received after 
this date will be considered if it is practical to do so, but the 
Commission cannot assure consideration of comments received after the 
expiration date.

ADDRESSES: Written comments may be submitted to Mr. Michael T. Lesar, 
Chief, Rules and Directives Branch, Division of Administrative 
Services, Office of Administration, Washington, DC 20555-0001. Comments 
may be submitted electronically at [email protected].
    The NRC maintains an Agencywide Documents Access and Management 
System (ADAMS), which provides text and image files of NRC's public 
documents. The documents may be accessed through the NRC's Public 
Electronic Reading Room on the Internet at http://www.nrc.gov/NRC/ADAMS/index.html. If you do not have access to ADAMS or if there are 
problems in accessing the documents located in ADAMS, contact the NRC 
Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-
4737, or by e-mail to [email protected].
    Copies of comments received by NRC may be examined at the NRC 
Public Document Room, 11555 Rockville Pike, Public File Area O-1-F21, 
Rockville, Maryland. Copies of the request for an Agreement by the 
Governor of Wisconsin including all information and documentation 
submitted in support of the request, and copies of the full text of the 
NRC Staff Draft Assessment are also available for public

[[Page 17087]]

inspection in the NRC's Public Document Room--ADAMS Accession Numbers: 
ML030160104 and ML030900662.

FOR FURTHER INFORMATION CONTACT: Lloyd A. Bolling, Office of State and 
Tribal Programs, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001. Telephone (301) 415-2327 or e-mail [email protected].

SUPPLEMENTARY INFORMATION: Since Section 274 of the Act was added in 
1959, the Commission has entered into Agreements with 32 States. The 
Agreement States currently regulate approximately 16,250 agreement 
material licenses, while NRC regulates approximately 4,900 licenses. 
Under the proposed Agreement, approximately 260 NRC licenses will 
transfer to Wisconsin. NRC periodically reviews the performance of the 
Agreement States to assure compliance with the provisions of section 
274.
    Section 274e requires that the terms of the proposed Agreement be 
published in the Federal Register for public comment once each week for 
four consecutive weeks. This notice is being published in fulfillment 
of the requirement.

I. Background

    (a) Section 274d of the Act provides the mechanism for a State to 
assume regulatory authority, from the NRC, over certain radioactive 
materials \1\ and activities that involve use of the materials.
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    \1\ The radioactive materials are: (a) Byproduct materials as 
defined in section 11e.(1) of the Act; (b) byproduct materials as 
defined in section 11e.(2) of the Act; (c) source materials as 
defined in section 11z. of the Act; and (d) special nuclear 
materials as defined in section 11aa. of the Act, restricted to 
quantities not sufficient to form a critical mass.
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    In a letter dated August 21, 2002, former Governor McCallum 
certified that the State of Wisconsin has a program for the control of 
radiation hazards that is adequate to protect public health and safety 
within Wisconsin for the materials and activities specified in the 
proposed Agreement, and that the State desires to assume regulatory 
responsibility for these materials and activities. Included with the 
letter was the text of the proposed Agreement, which is shown in 
Appendix A to this notice.
    The radioactive materials and activities (which together are 
usually referred to as the ``categories of materials'') which the State 
of Wisconsin requests authority over are: (1) The possession and use of 
byproduct materials as defined in section 11e.(1) of the Act; (2) the 
possession and use of source materials; and (3) the possession and use 
of special nuclear materials in quantities not sufficient to form a 
critical mass, as provided for in regulations or orders of the 
Commission.
    (b) The proposed Agreement contains articles that:

    [sbull] Specify the materials and activities over which authority 
is transferred;
    [sbull] Specify the activities over which the Commission will 
retain regulatory authority;
    [sbull] Continue the authority of the Commission to safeguard 
nuclear materials and restricted data;
    [sbull] Commit the State of Wisconsin and NRC to exchange 
information as necessary to maintain coordinated and compatible 
programs;
    [sbull] Provide for the reciprocal recognition of licenses;
    [sbull] Provide for the suspension or termination of the Agreement; 
and
    [sbull] Specify the effective date of the proposed Agreement.
    The Commission reserves the option to modify the terms of the 
proposed Agreement in response to comments, to correct errors, and to 
make editorial changes. The final text of the Agreement, with the 
effective date, will be published after the Agreement is approved by 
the Commission, and signed by the Chairman of the Commission and the 
Governor of Wisconsin.
    (c) Wisconsin currently registers users of naturally-occurring and 
accelerator-produced radioactive materials. The regulatory program is 
authorized by law in section 3145, subsection 254.34 of the revised 
Wisconsin Statutes. Subsection 254.335(1) provides the authority for 
the Governor to enter into an Agreement with the Commission. Wisconsin 
law (subsection 254.335(2)) contains provisions for the orderly 
transfer of regulatory authority over affected licensees from NRC to 
the State. After the effective date of the Agreement, licenses issued 
by NRC would continue in effect as Wisconsin licenses until the 
licenses expire or are replaced by State-issued licenses.
    (d) The NRC staff draft assessment finds that the Wisconsin program 
is adequate to protect public health and safety, and is compatible with 
the NRC program for the regulation of agreement materials.

II. Summary of the NRC Staff Draft Assessment of the Wisconsin Program 
for the Control of Agreement Materials

    NRC staff has examined the Wisconsin request for an Agreement with 
respect to the ability of the Wisconsin radiation control program to 
regulate agreement materials. The examination was based on the 
Commission's policy statement ``Criteria for Guidance of States and NRC 
in Discontinuance of NRC Regulatory Authority and Assumption Thereof by 
States Through Agreement'' (referred to herein as the ``NRC 
criteria''), (46 FR 7540; January 23, 1981, as amended by policy 
statements published at 46 FR 36969; July 16, 1981, and at 48 FR 33376; 
July 21, 1983).
    (a) Organization and Personnel. The agreement materials program 
will be located within the existing Radiation Protection Section 
(Program) of the Wisconsin Department of Health and Family Services. 
The Program will be responsible for all regulatory activities related 
to the proposed Agreement.
    The educational requirements for the Program staff members are 
specified in the Wisconsin State personnel position descriptions, and 
meet the NRC criteria with respect to formal education or combined 
education and experience requirements. All current staff members hold 
at least bachelor's degrees in physical or life sciences, or have a 
combination of education and experience at least equivalent to a 
bachelor's degree. Several staff members hold advanced degrees, and all 
staff members have had additional training plus working experience in 
radiation protection. Supervisory level staff have more than 10 years 
working experience each, in radiation protection.
    The Program currently has one staff vacancy, which they are 
actively recruiting to fill. The Program performed, and NRC staff 
reviewed, an analysis of the expected Program workload under the 
proposed Agreement. Based on the NRC staff review of the State's staff 
analysis, Wisconsin has an adequate number of staff to regulate 
radioactive materials under the terms of the Agreement. The Program 
will employ a staff of 9.5 full-time professional/technical and 
administrative employees for the agreement materials program. The 
distribution of the qualifications of the individual staff members will 
be balanced to the distribution of categories of licensees transferred 
from NRC. Each individual on the staff is qualified in accordance with 
the Program's training and qualification procedure to function in the 
areas of responsibility to which the individual is assigned.
    (b) Legislation and Regulations. The Wisconsin Department of Health 
and Family Services (DHFS) is designated by law in chapter 254 of the 
Wisconsin Revised Statutes to be the radiation control agency. The law 
provides the DHFS the authority to issue licenses,

[[Page 17088]]

issue orders, conduct inspections, and to enforce compliance with 
regulations, license conditions, and orders. Licensees are required to 
provide access to inspectors. The DHFS is authorized to promulgate 
regulations.
    The law requires the DHFS to adopt rules that are compatible with 
equivalent NRC regulations and that are equally stringent to the 
equivalent NRC regulations. Wisconsin has adopted HFS 157 Radiation 
Protection Code effective August 1, 2002. The NRC staff reviewed and 
forwarded comments on these regulations to the Wisconsin staff. The NRC 
staff review verified that, with the comments incorporated, the 
Wisconsin rules (and legally binding requirements) contain all of the 
provisions that are necessary in order to be compatible with the 
regulations of the NRC on the effective date of the Agreement between 
the State and the Commission. The DHFS has extended the effect of the 
rules, where appropriate, to apply to naturally occurring radioactive 
materials and to radioactive materials produced in particle 
accelerators, in addition to agreement materials. The NRC staff also 
concludes that Wisconsin will not attempt to enforce regulatory matters 
reserved to the Commission.
    Wisconsin regulations are different from the NRC regulations with 
respect to the termination of the license. Current NRC regulations 
permit a license to be terminated when the facility has been 
decommissioned, i.e., cleaned of radioactive contamination, such that 
the residual radiation will not cause a total effective dose equivalent 
greater than 25 millirem per year to an average member of the group of 
individuals reasonably expected to receive the greatest exposure. 
Normally, the NRC regulations require that the 25 millirem dose 
constraint be met without imposing any restrictions regarding the 
future use of the land or buildings of the facility (``unrestricted 
release''). Under certain circumstances, NRC regulations in 10 CFR part 
20, subpart E, allow a license to be terminated if the 25 millirem dose 
constraint is met with restrictions on the future use (``restricted 
release''). Wisconsin law does not allow a license to be terminated 
under restricted release conditions. Wisconsin will instead issue a 
special ``decommissioning-possession only'' license as an alternate to 
license termination under restricted release. NRC staff has concluded 
that this approach is compatible with NRC regulations.
    (c) Storage and Disposal. Wisconsin has also adopted NRC compatible 
requirements for the handling and storage of radioactive material. 
Wisconsin will not seek authority to regulate the land disposal of 
radioactive material as waste. The Wisconsin waste disposal 
requirements cover the preparation, classification and manifesting of 
radioactive waste, generated by Wisconsin licensees, for transfer for 
disposal to an authorized waste disposal site or broker.
    (d) Transportation of Radioactive Material. Wisconsin has adopted 
regulations compatible with NRC regulations in 10 CFR part 71. Part 71 
contains the requirements that licensees must follow when preparing 
packages containing radioactive material for transport. Part 71 also 
contains requirements related to the licensing of packaging for use in 
transporting radioactive materials. Wisconsin will not attempt to 
enforce portions of the regulations related to activities, such as 
approving packaging designs, which are reserved to NRC.
    (e) Recordkeeping and Incident Reporting. Wisconsin has adopted the 
sections compatible with the NRC regulations which specify requirements 
for licensees to keep records, and to report incidents, accidents, or 
events involving materials.
    (f) Evaluation of License Applications. Wisconsin has adopted 
regulations compatible with the NRC regulations that specify the 
requirements which a person must meet in order to get a license to 
possess or use radioactive materials. Wisconsin has also developed a 
licensing procedures manual, along with the accompanying regulatory 
guides, which are adapted from similar NRC documents and contain 
guidance for the Program staff when evaluating license applications.
    (g) Inspections and Enforcement. The Wisconsin radiation control 
program has adopted a schedule providing for the inspection of 
licensees as frequently as the inspection schedule used by NRC. The 
Program has adopted procedures for the conduct of inspections, the 
reporting of inspection findings, and the reporting of inspection 
results to the licensees. The Program has also adopted, by rule based 
on the Wisconsin Revised Statutes, procedures for the enforcement of 
regulatory requirements.
    (h) Regulatory Administration. The Wisconsin Department of Health 
and Family Services is bound by requirements specified in State law for 
rulemaking, issuing licenses, and taking enforcement actions. The 
Program has also adopted administrative procedures to assure fair and 
impartial treatment of license applicants. Wisconsin law prescribes 
standards of ethical conduct for State employees.
    (i) Cooperation with Other Agencies. Wisconsin law deems the holder 
of an NRC license on the effective date of the proposed Agreement to 
possess a like license issued by Wisconsin. The law provides that these 
former NRC licenses will expire either 90 days after receipt from the 
radiation control program of a notice of expiration of such license or 
on the date of expiration specified in the NRC license, whichever is 
earlier.
    Wisconsin also provides for ``timely renewal.'' This provision 
affords the continuance of licenses for which an application for 
renewal has been filed more than 30 days prior to the date of 
expiration of the license. NRC licenses transferred while in timely 
renewal are included under the continuation provision. The Wisconsin 
Radiation Protection Code provides exemptions from the State's 
requirements for licensing of sources of radiation for NRC and U.S. 
Department of Energy contractors or subcontractors. The proposed 
Agreement commits Wisconsin to use its best efforts to cooperate with 
the NRC and the other Agreement States in the formulation of standards 
and regulatory programs for the protection against hazards of radiation 
and to assure that Wisconsin's program will continue to be compatible 
with the Commission's program for the regulation of agreement 
materials. The proposed Agreement stipulates the desirability of 
reciprocal recognition of licenses, and commits the Commission and 
Wisconsin to use their best efforts to accord such reciprocity.

III. Staff Conclusion

    Subsection 274d of the Act provides that the Commission shall enter 
into an agreement under subsection 274b with any State if:
    (a) The Governor of the State certifies that the State has a 
program for the control of radiation hazards adequate to protect public 
health and safety with respect to the agreement materials within the 
State, and that the State desires to assume regulatory responsibility 
for the agreement materials; and
    (b) The Commission finds that the State program is in accordance 
with the requirements of subsection 274o, and in all other respects 
compatible with the Commission's program for the regulation of 
materials, and that the State program is adequate to protect public 
health and safety with respect to the materials covered by the proposed 
Agreement.
    On the basis of its draft assessment, the NRC staff concludes that 
the State of Wisconsin meets the requirements of the Act. The State's 
program, as defined

[[Page 17089]]

by its statutes, regulations, personnel, licensing, inspection, and 
administrative procedures, is compatible with the program of the 
Commission and adequate to protect public health and safety with 
respect to the materials covered by the proposed Agreement. NRC will 
continue the formal processing of the proposed Agreement which includes 
publication of this notice once a week for four consecutive weeks for 
public review and comment.

IV. Small Business Regulatory Enforcement Fairness Act

    In accordance with the Small Business Regulatory Enforcement 
Fairness 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 of the Office of Management and 
Budget (OMB).

    Dated in Rockville, Maryland, this 2nd day of April, 2003.

    For the Nuclear Regulatory Commission.
Paul H. Lohaus,
Director, Office of State and Tribal Programs.

Agreement Between the United States Nuclear Regulatory Commission and 
the State of Wisconsin for the Discontinuance of Certain Commission 
Regulatory Authority and Responsibility Within the State Pursuant to 
Section 274 of the Atomic Energy Act of 1954, as Amended

    Whereas, the United States Nuclear Regulatory Commission 
(hereinafter referred to as the Commission) is authorized under section 
274 of the Atomic Energy Act of 1954, as amended (hereinafter referred 
to as the Act), to enter into agreements with the Governor of the State 
of Wisconsin providing for discontinuance of the regulatory authority 
of the Commission within the State under chapters 6, 7, and 8, and 
section 161 of the Act with respect to byproduct materials as defined 
in sections 11e. (1) and (2) of the Act, source materials, and special 
nuclear materials in quantities not sufficient to form a critical mass; 
and,
    Whereas, the Governor of the State of Wisconsin is authorized under 
s. 254.335 (1), Wisconsin Statutes, to enter into this Agreement with 
the Commission; and,
    Whereas, the Governor of the State of Wisconsin certified on August 
21, 2002, that the State of Wisconsin (hereinafter referred to as the 
State) 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 this Agreement, and that the State desires to 
assume regulatory authority for such materials; and,
    Whereas, the Commission found on [date] that the program of the 
State for the regulation of the materials covered by this Agreement is 
compatible with the Commission's program for the regulation of such 
materials and is adequate to protect public health and safety; and,
    Whereas, the State and the Commission recognize the desirability 
and importance of cooperation between the Commission and the State in 
the formulation of standards for protection against hazards of 
radiation and in assuring that State and Commission programs for 
protection against hazards of radiation will be coordinated and 
compatible; and,
    Whereas, the Commission and the State recognize the desirability of 
the reciprocal recognition of licenses, and of the granting of limited 
exemptions from licensing of those materials subject to this Agreement; 
and,
    Whereas, this Agreement is entered into pursuant to the provisions 
of the Atomic Energy Act of 1954, as amended;
    Now, therefore, it is hereby agreed between the Commission and the 
Governor of the State, acting on behalf of the State, as follows:

Article I

    Subject to the exceptions provided in Articles II, IV, and V, the 
Commission shall discontinue, as of the effective date of this 
Agreement, the regulatory authority of the Commission in the State 
under chapters 6, 7, and 8, and section 161 of the Act with respect to 
the following materials:
    A. By-product materials as defined in section 11e. (1) of the Act;
    B. Source materials;
    C. Special nuclear materials in quantities not sufficient to form a 
critical mass.

Article II

    This Agreement does not provide for discontinuance of any authority 
and the Commission shall retain authority and responsibility with 
respect to:
    A. The regulation of the construction and operation of any 
production or utilization facility or any uranium enrichment facility;
    B. The regulation of the export from or import into the United 
States of byproduct, source, or special nuclear material, or of any 
production or utilization facility;
    C. The regulation of the disposal into the ocean or sea of 
byproduct, source, or special nuclear material wastes as defined in the 
regulations or orders of the Commission;
    D. The regulation of the disposal of such other byproduct, source, 
or special nuclear material as the Commission from time to time 
determines by regulation or order should, because of the hazards or 
potential hazards thereof, not be so disposed without a license from 
the Commission;
    E. The evaluation of radiation safety information on sealed sources 
or devices containing byproduct, source, or special nuclear materials 
and the registration of the sealed sources or devices for distribution, 
as provided for in regulations or orders of the Commission;
    F. The regulation of the land disposal of byproduct, source, or 
special nuclear material waste received from other persons;
    G. The extraction or concentration of source material from source 
material ore and the management and disposal of the resulting byproduct 
material.

Article III

    With the exception of those activities identified in Article II, 
paragraphs A through D, this Agreement may be amended, upon application 
by the State and approval by the Commission, to include the additional 
areas specified in Article II, paragraphs E, F and G, whereby the State 
can exert regulatory authority and responsibility with respect to those 
activities and materials.

Article IV

    Notwithstanding this Agreement, the Commission may from time to 
time by rule, regulation, or order, require that the manufacturer, 
processor, or producer of any equipment, device, commodity, or other 
product containing source, byproduct, or special nuclear material shall 
not transfer possession or control of such product except pursuant to a 
license or an exemption from licensing issued by the Commission.

Article V

    This Agreement shall not affect the authority of the Commission 
under subsection 161b or 161i of the Act to issue rules, regulations, 
or orders to protect the common defense and security, to protect 
restricted data, or to guard against the loss or diversion of special 
nuclear material.

Article VI

    The Commission will cooperate with the State and other Agreement 
States in the formulation of standards and regulatory programs of the 
State and the Commission for protection against hazards of radiation 
and to assure that

[[Page 17090]]

Commission and State programs for protection against hazards of 
radiation will be coordinated and compatible. The State agrees to 
cooperate with the Commission and other Agreement States in the 
formulation of standards and regulatory programs of the State and the 
Commission for protection against hazards of radiation and will assure 
that the State's program will continue to be compatible with the 
program of the Commission for the regulation of materials covered by 
this Agreement.
    The State and the Commission agree to keep each other informed of 
proposed changes in their respective rules and regulations, and to 
provide each other the opportunity for early and substantive 
contribution to the proposed changes.
    The State and the Commission agree to keep each other informed of 
events, accidents, and licensee performance that may have generic 
implication or otherwise be of regulatory interest.

Article VII

    The Commission and the State agree that it is desirable to provide 
reciprocal recognition of licenses for the materials listed in Article 
I licensed by the other party or by any other agreement state. 
Accordingly, the Commission and the State agree to develop appropriate 
rules, regulations, and procedures by which such reciprocity will be 
accorded.

Article VIII

    The Commission, upon its own initiative after reasonable notice and 
opportunity for hearing to the State, or upon request of the Governor 
of the State, may terminate or suspend all or part of this agreement 
and reassert the licensing and regulatory authority vested in it under 
the Act if the Commission finds that (1) such termination or suspension 
is required to protect public health and safety, or (2) the State has 
not complied with one or more of the requirements of section 274 of the 
Act. The Commission may also, pursuant to section 274j of the Act, 
temporarily suspend all or part of this agreement if, in the judgement 
of the Commission, an emergency situation exists requiring immediate 
action to protect public health and safety and the State has failed to 
take necessary steps. The Commission shall periodically review this 
Agreement and actions taken by the State under this Agreement to ensure 
compliance with section 274 of the Act which requires a State program 
to be adequate to protect public health and safety with respect to the 
materials covered by the Agreement and to be compatible with the 
Commission's program.

Article IX

    This Agreement shall become effective on July 1, 2003, and shall 
remain in effect unless and until such time as it is terminated 
pursuant to Article VIII.

    Done in Madison, Wisconsin this ** day of June, 2003.

    For the United States Nuclear Regulatory Commission.
Nils J. Diaz,
Chairman.
    For the State of Wisconsin.
Jim Doyle,
Governor.
[FR Doc. 03-8527 Filed 4-7-03; 8:45 am]
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