[Federal Register Volume 82, Number 193 (Friday, October 6, 2017)]
[Notices]
[Pages 46840-46843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21542]
=======================================================================
-----------------------------------------------------------------------
NUCLEAR REGULATORY COMMISSION
[NRC-2016-0094]
Agreement State Program Policy Statement
AGENCY: Nuclear Regulatory Commission.
ACTION: Revision to policy statement.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) has revised and
consolidated two policy statements on the NRC's Agreement State
Programs: The ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs'' and the ``Statement of Principles and Policy
for the Agreement
[[Page 46841]]
State Program.'' The resulting single policy statement has been revised
to add that public health and safety includes physical protection of
agreement material \1\ and to reflect comments received from Agreement
States, individuals, and the Organization of Agreement States (OAS).
---------------------------------------------------------------------------
\1\ The term ``agreement material'' means the materials listed
in Subsection 274b. of the Atomic Energy Act of 1954, as amended
(AEA), over which the States may receive regulatory authority.
---------------------------------------------------------------------------
DATES: This policy statement is effective on October 6, 2017.
ADDRESSES: Please refer to Docket ID NRC-2016-0094 when contacting the
NRC about the availability of information regarding this document. You
may obtain publicly-available information related to this document
using any of the following methods:
Federal Rulemaking Web site: Go to http://www.regulations.gov and search for Docket ID NRC-2016-0094. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-415-
3463; email: [email protected]. For technical questions, contact
the individual listed in the FOR FURTHER INFORMATION CONTACT section of
this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may obtain publicly-available documents online in the
ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``ADAMS Public Documents'' and
then select ``Begin Web-based ADAMS Search.'' For problems with ADAMS,
please contact the NRC's Public Document Room (PDR) reference staff at
1-800-397-4209, 301-415-4737, or by email to [email protected]. The
ADAMS accession number for each document referenced in this document
(if that document is available in ADAMS) is provided the first time
that a document is referenced. The Agreement State Program Policy
Statement, in its entirety, is in the attachment to this document.
NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT: Lance Rakovan, Office of Nuclear
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission,
Washington, DC 20555-0001; telephone: 301-415-2589, email:
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background
The ``Policy Statement on Adequacy and Compatibility of Agreement
State Programs'' (62 FR 46517; September 3, 1997) presented the NRC's
policy for determining the adequacy and compatibility of Agreement
State programs. The ``Statement of Principles and Policy for the
Agreement State Program'' (62 FR 46517; September 3, 1997) described
the respective roles and responsibilities of the NRC and the States in
the administration of programs carried out under the 274b. State
Agreement.\2\ The application of these two policy statements has
significant influence on the safety and security of agreement material
and on the regulation of the more than 20,000 Agreement State and NRC
materials licensees, commonly referred to as National Materials Program
(NMP) licensees.
---------------------------------------------------------------------------
\2\ Section 274 of the AEA provides a statutory basis under
which the NRC discontinues portions of its regulatory authority to
license and regulate byproduct materials; source materials; and
quantities of special nuclear materials under critical mass. The
mechanism for the transfer of the NRC's authority to a State is an
agreement signed by the Governor of the State and the Chairman of
the Commission, in accordance with Subsection 274b. of the AEA.
---------------------------------------------------------------------------
The NRC staff's current efforts to update the Agreement State
policy statements began with the Commission's direction provided in the
staff requirements memorandum (SRM) to SECY-10-0105, ``Final Rule:
Limiting the Quantity of Byproduct Material in a Generally Licensed
Device (RIN 3150-AI33),'' issued on December 2, 2010 (ADAMS Accession
No. ML103360262). The Commission directed the NRC staff to update the
Commission's ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs'' and associated guidance documents to include
both safety and source security considerations in the compatibility
determination process. Because Agreement State adequacy and
compatibility are closely linked to the Integrated Materials
Performance Evaluation Program (IMPEP),\3\ which is a key component of
the Commission's ``Statement of Principles and Policy for the Agreement
State Program,'' both policy statements were revised concurrently. Both
policy statements were updated to add that public health and safety
includes physical protection of agreement material. Two working groups,
composed of NRC staff and Agreement State representatives, developed
the revisions to the policy statements. The draft revisions to the two
policy statements were provided to the Commission on August 14, 2012
(SECY-12-0112, ``Policy Statements on Agreement State Programs'' (ADAMS
Accession No. ML12110A183)).
---------------------------------------------------------------------------
\3\ The NRC, in cooperation with the Agreement States, developed
the IMPEP to evaluate the adequacy and compatibility of Agreement
State programs and the adequacy of the NRC's nuclear materials
program activities.
---------------------------------------------------------------------------
The Commission approved publication of the draft revisions to the
policy statements for public comment in the revised SRM to SECY-12-
0112, dated May 28, 2013 (ADAMS Accession No. ML13148A352). The NRC
staff published the two proposed policy statements on June 3, 2013 (78
FR 33122), for a 75-day comment period. After receiving requests from
the Organization of Agreement States (OAS) and the State of Florida to
extend the public comment period, the NRC extended the comment period
to September 16, 2013 (78 FR 50118; August 16, 2013). The NRC held two
public meetings (July 18 and August 6, 2013) and a topical session
during the OAS annual meeting in Reno, Nevada, on August 28, 2013. The
NRC staff specifically solicited comment on Compatibility Category B,
and whether or not the policy statements should maintain the language
from the 1997 ``Policy Statement on Adequacy and Compatibility of
Agreement State Programs'' describing the adoption and number of
compatible regulations.
The NRC staff received 13 submissions from commenters including
Agreement States, industry organizations, and individuals. These
submissions contained 51 comments on the policy statements in general
and 45 comments on Compatibility Category B. The need for consistent
application and flexible implementation of the NRC's policies was the
underlying theme expressed by the Agreement States in the written
comments as well as during the public meetings and the OAS topical
session. Some commenters provided general remarks and addressed
specific sections of the policy statements. Some commenters also
expressed concern that the inconsistent use of terms (e.g., material
versus agreement material, enhanced security measures versus physical
protection of agreement material, and relinquishing the NRC's authority
versus discontinuing the authority) could cause confusion. Regarding
Compatibility Category B, the comments show a wide variation on the
interpretation of the definition of Compatibility Category B. The NRC
staff considered the written comments, input from attendees at the two
public meetings, and comments received at the OAS topical session and
made modifications to the policy statements to ensure terms are used
appropriately.
[[Page 46842]]
The NRC staff's disposition of these comments was presented in a
comment resolution table (ADAMS Accession No. ML14073A549) associated
with the June 3, 2013, Federal Register notice (78 FR 33122).
In COMSECY-14-0028, ``Agreement State Program Policy Statements:
Update on Recent Activities and Recommendations for Path Forward,''
dated July 14, 2014 (ADAMS Accession No. ML14156A277), the NRC staff
proposed consolidating the two policy statements in a single policy
statement. The Commission approved this plan in the SRM to COMSECY-14-
0028, dated August 12, 2014 (ADAMS Accession No. ML14224A618).
Accordingly, the NRC staff developed a proposed single consolidated
policy statement that: Identified and eliminated redundant language
between the two policy statements, removed detailed information on
IMPEP and the ``Principles of Good Regulation'' (ADAMS Accession No.
ML15083A026), added context to make the proposed policy statement
clearer and more consistent with other recent NRC policy statements,
and added a description of the NMP.
The Commission approved publication of the proposed consolidated
Agreement State Program Policy Statement for public comment in the SRM
to SECY-15-0087, dated March 22, 2016 (ADAMS Accession No.
ML16082A514). The NRC staff published the proposed Agreement State
Program Policy Statement on June 2, 2016 (81 FR 35388), for a 75-day
public comment period. The NRC staff also held two public webinars
during the comment period. The NRC staff received 31 comments from
commenters including Agreement States and the OAS.
The final policy statement is included in its entirety in the
attachment to this document.
II. Overview of Public Comments
The 31 comments received in response to the Federal Register notice
of June 2, 2016 (81 FR 35388), were considered in developing the final
policy statement along with 131 comments that were received from the
Agreement States when the policy statements were consolidated. The
comments generally fell within the following categories: The
consolidation of two policy statements and NRC's unilateral decision to
consolidate; the definition and description of adequacy and
compatibility; the use of ``NRC'' and ``Commission;'' the use of the
terms ``relinquish'' authority versus ``discontinue'' authority; the
use of the terms ``shall,'' ``will,'' or ``must'' versus ``should;''
the addition of ``significant'' to ``cross jurisdictional;'' and
deletion of the section on the Principles of Good Regulation.
Commenters provided additional comments that did not fall within those
categories as well as comments that were out of scope of the Agreement
State Program Policy Statement. The NRC staff's disposition of the 162
comments is presented in a comment resolution table (ADAMS Accession
No. ML17044A406). The following sections summarize the comments
organized in the categories previously noted, and include the NRC's
response to the comments.
A. Consolidation of Two Policy Statements and the NRC's Unilateral
Decision To Consolidate
Comment: Some commenters opposed the consolidation of the two
policy statements--the ``Policy Statement on Adequacy and Compatibility
of Agreement State Programs'' and the ``Statement of Principles and
Policy for the Agreement State Program''--into a single consolidated
policy statement citing the following reasons: (1) The statements
address unique topics (operational goals of a regulatory program vs.
review of a regulatory program); (2) the splitting up and
redistribution of the two policy statements' sections result in changes
in the emphasis and relationship of both policy statements, both within
each policy, and to each other; and (3) there are only five sentences
that are common to both policy statements, which is not indicative of a
great amount of redundancy. Multiple commenters believed that the NRC
made a unilateral decision to combine the two policy statements into a
single consolidated policy statement without input from the Agreement
State working group members who worked on the individual policies. One
commenter stated an expectation for the NRC to involve Agreement State
working group members in all aspects of working group projects to
ensure that documents adequately address issues of the Agreement States
as well as the NRC. Four commenters stated that unilateral action by
the NRC damages trust and the relationship between the NRC and the
Agreement States. Three of the five commenters cited NRC Management
Directive 5.3, ``Agreement State Participation in Working Groups''
(https://scp.nrc.gov/procedures.html) and noted that the combined
policy was not cooperatively developed.
Response: Two working groups composed of NRC (headquarters and
regional) staff and Agreement State representatives developed revisions
to these two policy statements. In COMSECY-14-0028, the NRC staff
proposed a plan to consolidate the two policy statements into a single
policy statement, while preserving the work already completed by the
two working groups to update the separate policy statements. One of the
factors leading to the recommendation for a single policy statement was
the identification, by the NRC, of redundant language between the two
policy statements. The Commission approved this plan in the SRM to
COMSECY-14-0028. The NRC staff consolidated the two Agreement State
Program policy statements into a single policy statement and removed
the IMPEP and Principles of Good Regulation details and redundancies.
In 2014, the NRC staff provided the draft consolidated policy statement
to Agreement States. Some expressed dissatisfaction over not being more
engaged in the decision and process used to propose consolidation of
the policy statements. The content revisions that were developed by the
two NRC/Agreement State working groups during their work on the two
separate policy statements were considered during the development of
the consolidated policy statement. Additionally, the final Agreement
State Program Policy Statement reflects comments received from the
Agreement States subsequent to the consolidation of the two policy
statements.
B. Definition and Description of Adequacy and Compatibility
Comment: Several commenters requested that adequacy and
compatibility be better defined throughout the Agreement State Program
Policy Statement and that a greater emphasis be placed on public health
and safety.
Response: Corresponding changes were implemented throughout the
Agreement State Program Policy Statement, as appropriate, for
consistency with the intent of the AEA. These include revisions in
Section C., ``Statement of Legislative Intent,'' of the policy
statement.
C. Use of ``NRC'' and ``Commission''
Comment: Several commenters recommended replacing ``NRC'' with
``Commission'' or vice versa in various sections throughout the policy
statement.
Response: The definition of ``Commission'' was added as a footnote
in the policy statement to mean the five Commissioners, and the ``NRC''
indicates the U.S. Nuclear Regulatory Commission as an agency.
[[Page 46843]]
Corresponding changes were implemented throughout the Agreement State
Program Policy Statement.
D. Use of the Terms ``relinquish'' Authority Versus ``discontinue''
Authority
Comment: Several commenters stated the use of the word
``relinquish''--in the context of the NRC's regulatory authority when
entering into an agreement--is not accurate and recommended changing
``relinquish'' to ``discontinue'' throughout the policy statement so
the wording is consistent with Section 274b. of the AEA.
Response: All instances of the word ``relinquish'' have either been
deleted or replaced with the word ``discontinue'' throughout the
Agreement State Program Policy Statement.
E. Use of the Terms ``shall,'' ``will,'' or ``must'' Versus ``should''
Comment: Multiple commenters suggest that ``shall,'' ``will,'' or
``must'' should replace ``should'' or vice versa in various sections
throughout the Agreement State Program Policy Statement.
Response: Corresponding changes were implemented throughout the
Agreement State Program Policy Statement, as appropriate, for
consistency with language used in Section 274b. of the AEA or other
sections of the policy statement.
F. Add ``significant'' to ``cross jurisdictional''
Comment: Several commenters suggest that the term ``significant''
should be added before ``cross jurisdictional'' for Compatibility
Category B program elements.
Response: The NRC/Agreement State working group for the revision of
the ``Policy Statement on Adequacy and Compatibility of Agreement State
Programs'' carefully considered the use of the term ``significant'' and
concluded that the term was ambiguous and should not be included as
part of the description of Compatibility Category B. The term ``cross
jurisdictional program elements'' was chosen to make the description of
Compatibility Category B concise and well-defined. No change was made
to the Agreement State Program Policy Statement as a result of these
comments.
G. Deletion of Principles of Good Regulation
Comment: A number of commenters recommended the deletion of Section
D.1.i, ``Principles of Good Regulation,'' of the policy statement.
Response: The Principles of Good Regulation were initially adopted
by the Commission in 1991 to serve as a guide to NRC decisionmaking and
employee conduct. In 1997, they were included in the ``Policy Statement
on Adequacy and Compatibility of Agreement State Programs'' and the
``Statement of Principles and Policy for the Agreement State Program''
and were recognized as part of a common culture that the NRC and
Agreement States share as co-regulators. These principles have served
as a foundation for good regulation in the NMP and are included in the
Agreement State Program Policy Statement to indicate their importance
and that they should continue to form the basic building blocks for
good regulation in the NMP into the future.
No change was made to the Agreement State Program Policy Statement
as a result of these comments.
H. Category Health and Safety
Comment: A number of commenters noted that Category Health and
Safety (H&S) was removed from the policy statement and recommended that
Category H&S be included.
Response: In the proposed policy statement, Category H&S was
removed from Section E.2. ``Compatibility.'' This section of the policy
describes the program elements required for compatibility. Program
elements required for H&S are not required for compatibility. Section
E.1. ``Adequacy'' of the proposed policy statement was made implicit
for Category H&S by indicating that an adequate program includes those
program elements necessary to maintain an acceptable level of
protection of public health and safety. Because Category H&S is one of
six categories (A, B, C, D, NRC, and H&S) that forms the basis for
evaluating and classifying NRC program elements, a corresponding edit
was implemented in Section E.1. ``Adequacy'' of the policy statement.
III. Procedural Requirements
Congressional Review Act Statement
This final Agreement State Program Policy Statement is a rule as
defined in the Congressional Review Act (5 U.S.C. 801-808). However,
the Office of Management and Budget has not found it to be a major rule
as defined in the Congressional Review Act.
Paperwork Reduction Act Statement
This Policy Statement contains voluntary guidance for information
collections subject to the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.). These information collections are mandatory for states
seeking to assume or maintain independent regulatory authority under
Section 274 of the Atomic Energy Act of 1954, as amended. These
information collections were approved by the Office of Management and
Budget (OMB), under control number 3150-0183. The estimated annual
burden for new Agreement State applications is 2,750 hours, to maintain
Agreement State status is 7,600 hours, and to participate in IMPEP
reviews is 36 hours. Send comments regarding this information
collection to the Information Services Branch, U.S. Nuclear Regulatory
Commission, Washington, DC 20555-0001, or by email to
[email protected], and to the Desk Officer, Office of
Information and Regulatory Affairs, NEOB-10202, (3150-0183) Office of
Management and Budget, Washington, DC 20503.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a collection of information unless the document requesting
or requiring the collection displays a currently valid OMB control
number.
Dated at Rockville, Maryland, this 2nd day of October 2017.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary for the Commission.
[FR Doc. 2017-21542 Filed 10-5-17; 8:45 am]
BILLING CODE 7590-01-P