[Federal Register Volume 73, Number 94 (Wednesday, May 14, 2008)]
[Proposed Rules]
[Pages 27771-27773]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-10819]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 73, No. 94 / Wednesday, May 14, 2008 / 
Proposed Rules  

[[Page 27771]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 34

[Docket No. PRM-34-06; NRC-2005-0019]


Organization of Agreement States, Inc., Consideration of Petition 
in Rulemaking Process

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking: Resolution and closure of petition 
docket.

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SUMMARY: The Nuclear Regulatory Commission (NRC) will consider the 
issues raised in a petition for rulemaking (PRM-34-06) submitted by 
Barbara Hamrick, Chair, Organization of Agreement States, Inc. (OAS) in 
the NRC's rulemaking process. The petitioner requested that the NRC 
amend its regulations to require that an individual receive at least 40 
hours of radiation safety training before using sources of radiation 
for industrial radiography, to revise the requirements for at least two 
qualified individuals to be present at a temporary job site, and to 
clarify how many individuals are required to meet surveillance 
requirements. The petitioner also requested that NUREG-1556, Volume 2, 
be revised to reflect the proposed amendments. The NRC has determined 
that this petition will be considered through NRC's rulemaking process.

DATES: The docket for the petition for rulemaking PRM-34-06 is closed 
on May 14, 2008.

ADDRESSES: Further NRC action on the issues raised by this petition 
will be accessible at the Federal rulemaking portal, http://www.regulations.gov, by searching on rulemaking Docket ID: NRC-2008-
0173. The NRC also tracks all rulemaking actions in the ``NRC 
Regulatory Agenda: Semiannual Report (NUREG-0936).''
    You can access publicly available documents related to this 
petition for rulemaking using the following methods:
    Federal e-Rulemaking Portal: Go to http://www.regulations.gov and 
search for documents filed under Docket ID: NRC-2005-0019.
    NRC's Public Document Room (PDR): The public may examine and have 
copied for a fee publicly available documents at the NRC's PDR, Public 
File Area O1F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland.
    NRC's Agency Wide Document Access and Management System (ADAMS): 
Publicly available documents created or received at the NRC are 
available electronically at the NRC's electronic Reading Room at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain 
entry into ADAMS, which provides text and image files of NRC's public 
documents. If you do not have access to ADAMS or if there are problems 
in accessing the documents located in ADAMS, contact the NRC PDR 
reference staff at 1-899-397-4209, 301-415-4737, or by e-mail to 
[email protected].

FOR FURTHER INFORMATION CONTACT: Thomas Young, Office of Federal and 
State Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001, telephone 301-415-
5795, e-mail: [email protected].

SUPPLEMENTARY INFORMATION: 

The Petition

    On December 28, 2005 (70 FR 76724), the NRC published a notice of 
receipt of a petition for rulemaking filed by the OAS. The petitioner 
requested that 10 CFR 34.41, ``Conducting industrial radiographic 
operations,'' paragraph (a) be amended to remove the requirement that 
the additional qualified individual shall observe the operations and be 
capable of providing immediate assistance to prevent unauthorized 
entry. The petitioner requested that 10 CFR 34.43, ``Training,'' be 
amended to limit a licensee from permitting an individual to act as a 
radiographer or a radiographer's assistant until the individual has 
successfully completed an accepted course of at least 40 hours on the 
applicable subjects listed in paragraph (g), e.g., concerning 
fundamentals of radiation safety, radiation detection instrumentation, 
and equipment. The petitioner requested that 10 CFR 34.51, 
``Surveillance,'' be amended to clarify that only the radiographer is 
required to ensure direct visual surveillance of the operation to 
protect against unauthorized entrance into a high radiation area. The 
petitioner also requested that NUREG-1556, Volume 2, be revised to 
reflect the performance-based changes in the proposed amendments.
    The petitioner considers 10 CFR 34.41(a) to be an important safety 
requirement, but believes the surveillance component of that rule is 
more appropriately implemented and enforced as a performance-based 
requirement, rather than the NRC's prescriptive interpretation of the 
rule. The petitioner stated that at least six Agreement States are 
currently implementing this component differently than the NRC. The 
petitioner believes that a shift in the NRC's focus to a performance-
based implementation of the final rule, based on its acceptance of the 
expertise in this arena derived from the States, would foster a 
regulatory partnership that benefits the licensed community by 
minimizing confusion for those licensees who operate in multiple 
jurisdictions.
    The petitioner stated that when 10 CFR 34.41(a) was developed, 
there was strong and sustained support from the States, licensees, and 
industry for the concept of having at least two qualified individuals 
present whenever radiography is performed at temporary job sites. The 
petitioner stated that Texas has had a requirement for a two-person 
crew since 1986, which was adopted at that time along with specific 
training requirements. The petitioner stated that by the effective date 
of the NRC final rule, seven States were already nationally recognized 
as having comparable industrial radiography program components and were 
issuing industrial radiographer certifications. The Texas program did 
not require two people to observe operations. The petitioner provided 
information to support their conclusion that there was no evidence of 
negative performance regarding the Texas program that warranted a 
different surveillance strategy.
    The petitioner stated that NRC's regulations require, ``The 
additional qualified individual shall observe the operations and be 
capable of providing immediate assistance to prevent

[[Page 27772]]

unauthorized entry.'' The petitioner believes that the expectation of 
the two-person rule, as expressed in the May 28, 1997, final rule, is 
that at a temporary job site the second qualified individual would be 
able to secure the restricted area and the source, and provide aid as 
needed. The petitioner stated that in the final rule, the Commission 
stressed that having a second qualified individual is particularly 
important when radiography is performed where a radiographer alone may 
not be able to control access to the restricted area. The petitioner 
also stated that, additionally, the second person should be trained to 
provide a safe working environment for radiography personnel, workers, 
and other members of the public at a temporary job site.
    The petitioner stated that safety was the basis for having two 
individuals at a job site. The petitioner believes that requiring a 
trainee/assistant to have more extensive training (e.g., completion of 
a 40-hour radiation safety training course) before handling 
radiographic equipment increases the probability that he or she would 
be able to observe the area and provide assistance if needed. The 
petitioner stated that while there were many comments on the 
desirability of the trainer/trainee or radiographer/assistant crew 
combination as opposed to the two radiographer crew, and an acceptance 
of the requirement that the trainee/assistant be under the direct 
supervision of the trainer/radiographer, the issue regarding whether 
both individuals of a two radiographer crew had to be physically 
present during actual exposures was never addressed by the NRC. The 
petitioner stated that in several States, if a two-person crew consists 
of two radiographers, one may be in the darkroom while the other is 
exposing film, provided the surveillance requirement is met.
    The petitioner stated that the apparent inconsistency in the 
surveillance component of Sec. Sec.  34.41(a) and 34.51, along with the 
conflicting guidance found in NUREG-1556, Volume 2, raise substantial 
doubts as to whether the NRC's current interpretation of the rule is, 
in terms of safety, the most desired approach. The petitioner stated 
that the recommended language that amends Sec.  34.51 puts the access 
control responsibility with a radiographer, but allows the radiographer 
the latitude to use additional personnel to control radiographic 
operations if needed. The petitioner believes that additional personnel 
may include persons not qualified as a radiographer or a radiographer's 
assistant, but capable of providing needed support to control access to 
the restricted area while remaining at the perimeter of the restricted 
area. The petitioner believes that, as the rule recommends, the rule 
does not require two persons to constantly monitor operations, nor does 
it limit it to two persons. The petitioner believes that the rule 
allows the radiographer in charge to make that decision.
    The petitioner stated that the final rulemaking has been 
interpreted in guidance document NUREG-1556, Volume 2, to mean, ``Both 
individuals must maintain constant surveillance of the operations and 
be capable of providing immediate assistance to prevent unauthorized 
entry to the restricted area.'' The petitioner stated that if the 
temporary job site presents a situation in which the surveillance 
requirement of Sec.  34.51 is met, the NRC interpretation means that 
even if a two-person crew consists of two certified radiographers, both 
must be with the camera. If one of the members is in the darkroom, then 
radiography cannot be performed. The petitioner believes that the 
impact of this interpretation on the industry is that companies must 
employ a third person to develop film in the darkroom while two 
individuals are exposing film and preventing unauthorized entry, 
regardless of what the situation warrants. The petitioner also believes 
that the licensee must use additional time at a job site to expose film 
and then develop it. Either situation results in added, unnecessary 
cost to the industry. The petitioner contends that in a temporary job 
site situation in which the crew consists of two qualified 
radiographers and the surveillance requirement can be met, the second 
individual is available to provide immediate assistance, whether in the 
darkroom or performing other job-related duties nearby. The petitioner 
stated there is no justification for imposing additional costs and 
negative impact on an industry that has not demonstrated performance 
that would warrant this cost and impact.

Public Comments on the Petition

    The notice of receipt of the petition for rulemaking invited 
interested persons to submit comments. The comment period closed on 
March 13, 2006. NRC received two comment letters; one from the 
Conference of Radiation Control Program Directors, Inc., and one from 
the Texas Department of State Health Services. These organizations 
approved the petitioner's request. The main reasons cited by these 
commenters were that the proposed changes would help to: (1) Facilitate 
a better understanding of industrial radiography operational 
requirements, (2) promote a safer work environment, and (3) encourage 
the collaborative partnership with NRC and OAS for the development and 
implementation of uniform and consistent regulations that support 
public health and safety.
    The industrial radiography community did not comment on the 
petitioner's request. In the past, the industry strongly supported the 
two person requirement at 10 CFR 34.41(a) and indicated that the 
additional cost of safety would be borne by the customers, not 
necessarily by the licensees. The industry had not supported a 
requirement to specify the number of hours for radiation safety 
training that is required in 10 CFR 34.43.
    On August 15, 2007 (72 FR 35203), the NRC held an open meeting via 
a teleconference with the petitioner and members of the public. The 
meeting transcript is available in ADAMS (Accession No. ML080370403). 
The purpose of the meeting was to ensure full understanding of two 
specific issues, training and economic impact, which the NRC identified 
during evaluation of the petitioner's request. The meeting was attended 
by two members of the OAS Executive Board who represented the 
petitioner, three individuals from three Agreement State programs, and 
two members of the public who were consultants for industrial 
radiography licensees. Regarding the training issue, the petitioner 
indicated that a trainee in Texas is required to complete an approved, 
40-hour course in basic radiation safety before the trainee would 
obtain on-the-job experience under the supervision of a certified 
trainer. Eventually a trainee may take an approved certification exam 
and become a certified radiographer if a passing score is obtained on 
the exam. The petitioner explained how the two person rule is 
implemented in the State of Texas to allow one radiographer to observe 
the area in certain situations. Regarding the issue of economic impact, 
the petitioner indicated there was no apparent economic impact from the 
two person rule in Texas since 1986 when the requirement was first 
implemented. However, since 10 CFR 34.41(a) was effective in 1997, 
assigning radiography personnel to jobs becomes more complicated for 
Texas licensees that operate in a non-Agreement State. For example, a 
licensee from Texas who has a job site in a non-Agreement State would 
most likely have to send additional radiography personnel or allow 
additional time to complete a job that could have been done by a team

[[Page 27773]]

comprised of two certified radiographers if the job site had been in 
Texas. Of the State personnel in attendance, one of the three 
individuals assisted with the petitioner's presentation, the second 
individual was neutral and did not indicate approval of, or opposition 
to the petitioner's request, and the third individual indicated that 
the inspection program in their State should be more aggressive. The 
two consultants opposed the petition. The main reasons cited by the 
consultants were: (1) An approved, 40-hour requirement should not be 
prescribed because various ways and means exist for a licensee to 
provide instructions to workers as required in 10 CFR 19.12; (2) a 40-
hour basic radiation safety training requirement for a radiographer's 
assistant would be a major economic impact on a licensee due to 
frequent and unexpected personnel turnover; (3) the duration of basic 
radiation safety training need not be specified in the regulations 
because an individual's understanding of essential information can be 
readily determined during a performance-based safety inspection 
completed by a radiation safety officer or a regulatory agency; (4) 
resources would be better spent to increase the number of performance-
based safety inspections at temporary job sites and enforce the current 
requirements than to expend resources to revise the regulations as per 
the petitioner's request; (5) the two person rule is necessarily 
prescriptive to require an additional qualified individual to observe 
operations during radiography because an individual radiographer 
working alone with an unshielded gamma radiation source of high energy 
and activity is unsafe even at a remote field site where the entire 
area is unobstructed; (6) both the radiographer and the additional 
qualified individual must work together and be checking on each other 
to ensure safety during operations; and (7) under the approach proposed 
by the petitioner even a certified radiographer will have problems at 
times because a second qualified individual is not checking against the 
radiographer in certain cases.

Reasons for Closure

    The NRC is closing the petition because we have determined that 
issues and concerns raised in the petition merit further NRC 
consideration and inclusion in a future rulemaking. The NRC's rationale 
for closing the petition is based on the following points:
     The Texas program has been in place for a number of years 
and appears to successfully regulate industrial radiography licensees. 
To date, there is no significant evidence that reveals the Texas 
regulations have failed to protect public health and safety. There is 
no apparent difference in the performance outcomes of the Texas 
approach or the NRC approach.
     The NRC used the previous experience from Texas and other 
Agreement State programs and NRC and Agreement State licensees when it 
developed 10 CFR part 34.
     The NRC analyzed the Agreement States' requirements 
equivalent to 10 CFR 34.41(a) and compared those regulations not 
compatible with a Compatibility Category B to the compatibility 
requirements for a Compatibility Category C and a Compatibility 
Category H & S. The NRC determined that a compatibility change to a 
Compatibility Category C would not resolve all the issues for the 
Agreement States that are non-compatible with Compatibility Category B.
     Enforcement outcomes differ between the NRC and Texas. The 
NRC's Enforcement Policy indicates a violation of 10 CFR 34.41(a) as an 
example of a Severity Level III violation that would result in 
escalated enforcement action. Under the Texas approach, no violation 
would be cited if one radiographer is observing operations in the area 
and the additional radiography personnel is in the dark room and aware 
of operations in the area.
     The Regulatory Flexibility Act (RFA) has a requirement for 
Federal agencies to review regulations every 10 years that affect small 
businesses. As an independent regulatory agency, the NRC has 
voluntarily complied with some RFA provisions and the NRC believes it 
is reasonable to review 10 CFR part 34 because it affects small 
businesses.
     The NRC could use an enhanced public participatory process 
to evaluate whether to revise 10 CFR part 34 into a more performance 
based regulation.
     During the time and development of the rulemaking process, 
NRC could continue the Integrated Materials Performance Evaluation 
Program reviews and if an Agreement State's regulations are found to be 
noncompliant for 10 CFR 34.41(a) then the finding(s) would be held in 
abeyance as indicated previously in the All Agreement States Letter 
dated March 25, 2005 (STP-05-025).
    The NRC will consider the issues raised by the petition in the 
rulemaking process; however, the petitioner's concerns may not be 
addressed exactly as the petitioner has requested. During the 
rulemaking process the NRC will solicit comments from the public and 
will consider all comments before finalizing the rule. Future actions 
for PRM-34-06 will be reported in NUREG-0936, ``NRC Regulatory Agenda'' 
which is publicly available on the NRC Web site at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr0936/. The regulatory agenda 
is a semiannual compilation of all rules on which the NRC has recently 
completed action, or has proposed action, or is considering action, and 
of all petitions for rulemaking that the NRC is working to resolve. 
Further information on this petition may also be tracked through http:/
/www.Regulations.gov under Docket I.D. NRC-2008-0173.
    Existing NRC regulations provide the basis for reasonable assurance 
that the common defense and security and public health and safety are 
adequately protected.
    For the reasons cited in this document, the NRC closes this docket 
PRM-34-06.

    Dated at Rockville, Maryland, this 24th day of April 2008.

    For the Nuclear Regulatory Commission.
Luis A. Reyes,
Executive Director for Operations.
[FR Doc. E8-10819 Filed 5-13-08; 8:45 am]
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