[Federal Register Volume 86, Number 103 (Tuesday, June 1, 2021)]
[Rules and Regulations]
[Pages 29173-29176]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11436]



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 Rules and Regulations
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  Federal Register / Vol. 86, No. 103 / Tuesday, June 1, 2021 / Rules 
and Regulations  

[[Page 29173]]



NUCLEAR REGULATORY COMMISSION

10 CFR Part 34

[Docket No. PRM-34-6; NRC-2017-0022; NRC-2008-0173]


Industrial Radiographic Operations and Training

AGENCY: Nuclear Regulatory Commission.

ACTION: Notification of interpretation, request for comment.

-----------------------------------------------------------------------

SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing a 
notification of interpretation on industrial radiographic operations at 
temporary radiography jobsites and an Agreement State Compatibility 
Category change. The interpretation and Compatibility Category change 
are effective immediately with a 30-day post-promulgation comment 
period. The NRC is taking this action to respond to a petition for 
rulemaking from the Organization of Agreement States (OAS).

DATES: This interpretation and Compatibility Category change is 
effective June 1, 2021. Submit comments by July 1, 2021. Comments 
received after this date will be considered if it is practical to do 
so, but the Commission is able to ensure consideration only for 
comments received before this date.

ADDRESSES: You may submit comments by any of the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2017-0022. Address 
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407; 
email: [email protected]. For technical questions contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     Email comments to: [email protected]. If you do 
not receive an automatic email reply confirming receipt, then contact 
us at 301-415-1677.
     Mail comments to: Secretary, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, ATTN: Rulemakings and 
Adjudications Staff.
     Attention: The Public Document Room (PDR), where you may 
examine and order copies of public documents, is currently closed. You 
may submit your request to the PDR via email at [email protected] or 
call 1-800-397-4209 between 8:00 a.m. and 4:00 p.m. (EST), Monday 
through Friday, except Federal holidays.
    For additional direction on obtaining information and submitting 
comments, see ``Obtaining Information and Submitting Comments'' in the 
SUPPLEMENTARY INFORMATION section of this document.

FOR FURTHER INFORMATION CONTACT: Gregory R. Trussell, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone: 301-415-6244, email: 
[email protected].

SUPPLEMENTARY INFORMATION:

Table of Contents

I. Obtaining Information and Submitting Comments
    A. Obtaining Information
    B. Submitting Comments
II. Background
III. Interpretation
IV. Compatibility of Agreement State Regulations
V. Request for Comment
VI. Petition Resolution
VII. Availability of Documents
VIII. Congressional Review Act
IX. Conclusion

I. Obtaining Information and Submitting Comments

A. Obtaining Information

    Please refer to Docket IDs NRC-2017-0022 and NRC-2008-0173 when 
contacting the NRC about the availability of information for this 
action. You may obtain publicly-available information related to this 
action by any of the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket IDs NRC-2017-0022 and NRC-
2008-0173.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's PDR 
reference staff at 1-800-397-4209, 301-415-4737, or by email to 
[email protected]. For the convenience of the reader, instructions 
about obtaining materials referenced in this document are provided in 
the ``Availability of Documents'' section.

B. Submitting Comments

    Please include Docket IDs NRC-2017-0022 and NRC-2008-0173 in your 
comment submission. When preparing and submitting your comments, see 
``Tips for Submitting Effective Comments'' in the ``Availability of 
Documents'' section.
    The NRC cautions you not to include identifying or contact 
information that you do not want to be publicly disclosed in your 
comment submission. The NRC will post all comment submissions at 
https://www.regulations.gov as well as enter the comment submissions 
into ADAMS. The NRC does not routinely edit comment submissions to 
remove identifying or contact information.
    If you are requesting or aggregating comments from other persons 
for submission to the NRC, then you should inform those persons not to 
include identifying or contact information that they do not want to be 
publicly disclosed in their comment submission. Your request should 
state that the NRC does not routinely edit comment submissions to 
remove such information before making the comment submissions available 
to the public or entering the comment into ADAMS.

II. Background

A. Industrial Radiographic Operations and Training Rulemaking

    On May 28, 1997, the NRC issued Sec.  34.41(a) of title 10 of the 
Code of Federal Regulations (10 CFR), ``Licenses for Industrial 
Radiography and Radiation Safety Requirements for Industrial 
Radiographic Operations,'' commonly called ``the two-person rule,'' 
which requires a second qualified individual (radiographer or 
radiographer's assistant) to be present during industrial radiography 
operations at temporary jobsites. (62 FR

[[Page 29174]]

28948). In the preamble for the two-person rule, the NRC stated, ``the 
purpose of the second individual is to provide immediate assistance 
when required and to prevent unauthorized entry into the restricted 
area.'' (62 FR 28955). The second individual should have ``. . . 
sufficient radiography and safety training to allow him/her to take 
charge and secure the radioactive material, provide aid where 
necessary, and prevent access to radiation areas by unauthorized 
persons.'' (62 FR 28955). The NRC has consistently interpreted 10 CFR 
34.41(a) to require the second qualified individual to directly observe 
radiographic operations.

B. Integrated Materials Performance Evaluation Program Review

    The Integrated Materials Performance Evaluation Program (IMPEP) is 
a review process that evaluates the adequacy and compatibility of each 
Agreement State and NRC radioactive materials program. In June 2001, 
during an IMPEP review, the NRC preliminarily identified that 
implementation of the two-person rule by the State of Texas Department 
of Health (Texas) was not compatible with the provisions of 10 CFR 
34.41(a).\1\ Specifically, the NRC concluded that Texas's regulations 
are not compatible with 10 CFR 34.41(a) because Texas does not require 
the second individual to ``observe'' the operations. For example, the 
second qualified individual is permitted to perform other job-related 
duties, such as developing radiographic film in a nearby darkroom, 
during radiographic operations. In such a case, the second person would 
not be deemed available to observe and provide immediate assistance in 
the case of an accident or injury. However, the final IMPEP report 
found that Texas's performance was satisfactory based on additional 
performance information provided by Texas at that time. The final IMPEP 
report recommended that the NRC, in coordination with the Agreement 
States, reconsider how the rule could be implemented.
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    \1\ Integrated Materials Performance Evaluation Program Review 
of Texas Agreement State Program August 27-31, 2001, Final Report, 
pp. 13-15 (Agencywide Documents Access and Management System [ADAMS] 
Accession No. ML013530314) (final IMPEP report).
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    The NRC convened a working group with representatives from the OAS 
in June 2002.\2\ The group provided options to an NRC Management Review 
Board.\3\ The Management Review Board recommended that OAS or the State 
of Texas submit a Petition for Rulemaking (PRM) to the NRC with a 
request to reevaluate the two-person rule. The NRC agreed to hold in 
abeyance compatibility findings for inconsistencies identified during 
all IMPEP reviews related to the issues in the PRM until the issue is 
resolved.
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    \2\ STP-05-025, Results of the Management Review Board's 
Consideration of the Working Group's Report on the Re-evaluation of 
10 CFR 34.41(a) Commonly Known as the ``Two Person Rule.''
    \3\ Final Memo to Management Review Board, Re-evaluation of 10 
CFR 34.41(a) Commonly Known as the Two-person Rule (June 18, 2004) 
(ADAMS Accession No. ML041700450).
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C. Petition for Rulemaking

    On November 3, 2005, the OAS submitted a PRM requesting the NRC to 
amend its regulations in 10 CFR 34.41(a), 34.43(a), and 34.51 related 
to industrial radiographic operations to: (1) Require that an 
individual receive a specific amount of radiation safety training 
before using sources of radiation for industrial radiography; (2) 
clarify the requirements related to the responsibilities of the second 
individual that is required to be present during radiographic 
operations; and (3) clarify how many individuals are required to meet 
visual surveillance requirements during radiographic operations. The 
petitioner also requested that NUREG-1556, Volume 2, ``Program-Specific 
Guidance about Industrial Radiography Licenses,'' \4\ be revised to 
reflect the proposed amendments. The petitioner asserted that the NRC's 
interpretation of the two-person rule added unnecessary cost to the 
industry because the second qualified individual is unavailable to 
perform other job-related duties such as developing radiographic film 
in a darkroom. The petitioner requested the NRC delete from the two-
person rule the sentence, ``[t]he additional qualified individual shall 
observe the operation and be capable of providing immediate assistance 
to prevent unauthorized entry.'' The petitioner posited that in a 
temporary jobsite situation in which the crew consists of two qualified 
radiographers, and the surveillance requirement of 10 CFR 34.51 can be 
met, that the second individual should be considered available to 
provide immediate assistance even if the second qualified individual is 
engaged in job-related duties other than observation of radiographic 
operations. The petitioner also argued that one of the primary factors 
identified as a root cause of many industrial radiography overexposures 
was lack of radiation safety training.
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    \4\ NUREG-1556, Volume 2, ``Program-Specific Guidance About 
Industrial Radiography Licenses,'' has been revised since the PRM 
was received. The August 1998 version referenced by the PRM is 
available at ADAMS Accession No. ML010370172. The current version, 
Revision 1, published in February 2016, is available at ADAMS 
Accession No. ML16062A091. The PRM's request for revision continues 
to be relevant to the current revision.
---------------------------------------------------------------------------

    The NRC reviewed the petition and determined that the issues and 
concerns raised in the petition merited further NRC consideration and 
inclusion in a future rulemaking (73 FR 27771). Because the rulemaking 
activity did not raise an immediate safety, environmental, or security 
concern, it was rated a medium priority. Resources were applied to this 
rulemaking in fiscal year 2018.

III. Interpretation

    The NRC has previously interpreted Sec.  34.41(a) to require both 
the radiographer and the second qualified individual to maintain direct 
observation when radiographic operations are being conducted at a 
temporary jobsite.\5\ This interpretation has been demonstrated, 
through operating experience, to be unnecessary to protect public 
health and safety. The NRC is now reinterpreting that requirement.
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    \5\ See NUREG-1556, Volume 2.
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    The regulation uses the term ``observe'' rather than ``directly 
observe,'' and also requires that the second qualified individual ``be 
capable of providing immediate assistance to prevent unauthorized 
entry.'' The NRC's interpretation has been that direct observation is 
required to ensure the second individual can provide immediate 
assistance. The two-person rule is intended to ensure that the second 
individual is able ``. . . to take charge and secure the radioactive 
material, provide aid where necessary, and prevent access to radiation 
areas by unauthorized persons.'' To achieve that purpose, the word 
``observe'' is used to ensure that the second individual can determine 
when it is necessary to take charge or help the radiographer and 
prevent unauthorized entry.
    Therefore, the NRC now interprets Sec.  34.41 such that the 
requirements contained in the sentence, ``[t]he additional qualified 
individual shall observe the operation and be capable of providing 
immediate assistance to prevent unauthorized entry'' are met if the 
second qualified individual is in sufficiently close proximity to the 
operation and sufficiently aware of the ongoing activities to be able 
to provide assistance or take charge when necessary and to prevent 
unauthorized entry. The second individual may perform other tasks 
nearby so long as they are cognizant of the site-specific circumstances 
when radiographic operations are in progress. The second individual 
could, for example, use

[[Page 29175]]

remote video surveillance to maintain awareness of ongoing radiographic 
operations from a nearby darkroom.
    This interpretation does not affect the NRC's existing guidance for 
temporary jobsites that have multiple access points. As explained in 
NUREG-1556, Volume 2, Revision 1, licensees may need two or more 
individuals present to prevent unauthorized entry at temporary jobsites 
at facilities with multiple levels and multiple access points, or where 
members of the public are close to the radiographic operations.

IV. Compatibility of Agreement State Regulations

    The NRC is not requiring Agreement States to revise their 
interpretations of Sec.  34.41. As such, and as described below, the 
NRC hereby changes the compatibility category of Sec.  34.41 from B to 
C.
    Under the ``Agreement State Program Policy Statement'' approved by 
the Commission on October 2, 2017, and published in the Federal 
Register on October 18, 2017 (82 FR 48535), NRC program elements 
(including regulations) are placed into compatibility categories A, B, 
C, D, NRC, or adequacy category Health and Safety (H&S).
    Compatibility Category A program elements are those program 
elements that are basic radiation protection standards and scientific 
terms and definitions that are necessary to understand radiation 
protection concepts. An Agreement State should adopt Category A program 
elements in an essentially identical manner in order to provide 
uniformity in the regulation of agreement material on a nationwide 
basis.
    Compatibility Category B program elements are those program 
elements that apply to activities that have direct and significant 
effects in multiple jurisdictions. An Agreement State should adopt 
Category B program elements in an essentially identical manner.
    Compatibility Category C program elements are those program 
elements that do not meet the criteria of Category A or B, but contain 
the essential objectives that an Agreement State should adopt to avoid 
conflict, duplication, gaps, or other conditions that would jeopardize 
an orderly pattern in the regulation of agreement material on a 
national basis. An Agreement State should adopt the essential 
objectives of the Category C program elements.
    Compatibility Category D program elements are those program 
elements that do not meet any of the criteria of Category A, B, or C 
and, therefore, do not need to be adopted by Agreement States for 
purposes of compatibility.
    Compatibility Category NRC program elements are those program 
elements that address areas of regulation that cannot be relinquished 
to the Agreement States under the Atomic Energy Act of 1954, as 
amended, or provisions of 10 CFR. These program elements should not be 
adopted by the Agreement States.
    Adequacy Category H&S program elements are program elements that 
are required because of a particular health and safety role in the 
regulation of agreement material within the State and should be adopted 
in a manner that embodies the essential objectives of the NRC program.
    The NRC is changing the compatibility category designation for 
Sec.  34.41(a) from B to C. Instead of requiring Agreement States to 
adopt this regulation in an essentially identical manner, they would 
now be able to implement regulations that are more restrictive than the 
NRC requirements, provided that the essential objective is met, and the 
State requirements do not jeopardize an orderly pattern of regulation 
of agreement material on a nationwide basis. The NRC, with the benefit 
of over 20 years of experience with Agreement States' implementing 
differing interpretations of the two-person rule, has determined that 
essentially identical implementation is not necessary to provide an 
orderly pattern of regulation. Despite differences in implementation of 
the two-person rule, the NRC is not aware of any cross-jurisdictional 
boundary issues for the National Materials Program. Therefore, Sec.  
34.41(a) is hereby redesignated Compatibility Category C.
    The essential objective of Sec.  34.41(a) is to have a second 
qualified individual maintain awareness of the radiographic operations, 
maintain direct communications with the radiographer, and be capable of 
providing immediate assistance to the radiographer or taking charge 
when necessary, and to prevent unauthorized entry into a restricted 
area. To meet the essential objective of Compatibility Category C, the 
Agreement State may either adopt the NRC's position or may continue to 
require direct observation of radiographic operations by the second 
qualified individual at temporary jobsites. Agreement States may also 
adopt other more restrictive requirements.

V. Request for Comment

    The NRC is requesting comments on this interpretation and the 
change from Compatibility Category B to C for the surveillance 
requirements in Sec.  34.41(a). The NRC will publish a document in the 
Federal Register containing an evaluation of the significant comments 
and any revisions to this interpretation made as a result of the 
comments and their evaluation.

VI. Petition Resolution

    The NRC will evaluate comments received on this notification of 
interpretation to determine if the petition issues related to the two-
person rule in PRM-34-6 are resolved. This notification of 
interpretation makes Sec.  34.41(a) consistent with the requirement of 
Sec.  34.51 that at least one of the two individuals present at a 
temporary jobsite ``maintain direct observation of the operation.''
    In addition, the NRC has reviewed the petition regarding training 
requirements and has concluded, based on associated operational 
experience since 1997, that current requirements in Sec.  34.43(c) are 
sufficient to ensure safe radiographic operations. Specifically, the 
second qualified individual is required to receive equipment training 
on radiographic devices, sources, associated equipment, radiation 
survey equipment and the daily inspection requirements on the 
equipment. The training requirements in 10 CFR part 34 prepare 
individuals conducting radiographic operations with sufficient 
knowledge and understanding of the regulations and safety requirements 
and familiarity with the equipment that they will use in the 
performance of their work.
    Based on this review, the NRC has preliminarily concluded that 
rulemaking to amend its requirements for Industrial Radiographic 
Operations and Training is no longer necessary and, therefore, is 
proposing discontinuing the rulemaking activity.
    The NRC intends to develop an addendum to the current version of 
NUREG-1556, Volume 2, Revision 1, ``Program-Specific Guidance About 
Industrial Radiography Licenses'' and to revise Inspection Procedure 
87121, ``Industrial Radiography Programs'' to address the 
interpretation of the surveillance requirements.

VII. Availability of Documents

    The documents identified in the following table are available to 
interested persons through one or more of the following methods, as 
indicated.

[[Page 29176]]



----------------------------------------------------------------------------------------------------------------
                                                                                  Adams accession No. or Federal
                Document                                   Date                          Register citation
----------------------------------------------------------------------------------------------------------------
Tips for Submitting Effective Comments..  January 16, 2020......................  ML20014E720
Petition from OAS PRM-34-6..............  November 3, 2005......................  ML053190112
``Licenses for Industrial Radiography     May 28, 1997..........................  62 FR 28948
 and Radiation Safety Requirements for
 Industrial Radiographic Operations,''
 commonly known as the ``Two-Person
 Rule''.
Final Memo to MRB re: Re-evaluation of    June 18, 2004.........................  ML041700450
 10 CFR 34.41(a), commonly known as the
 ``Two[dash]Person Rule,'' group report
 to MRB.
Organization of Agreement States, Inc.,   May 14, 2008..........................  73 FR 27771
 Consideration of Petition in Rulemaking
 Process.
NUREG-1556, Volume 2, ``Program-Specific  August 1998...........................  ML010370172
 Guidance about Industrial Radiography
 Licenses''.
NUREG-1556, Volume 2, Revision 1,         February 2016.........................  ML16062A091
 ``Program-Specific Guidance about
 Industrial Radiography Licenses''.
Inspection Procedure 87121, ``Industrial  September 5, 2014.....................  ML14239A234
 Radiography Programs''.
----------------------------------------------------------------------------------------------------------------

VIII. Congressional Review Act

    This notification of interpretation 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.

IX. Conclusion

    The requirement of Sec.  34.41(a) is met if the additional 
qualified individual is in sufficiently close proximity to the 
operation and sufficiently aware of the ongoing activities to be able 
to provide assistance or take charge when necessary and to prevent 
unauthorized entry. In addition, the compatibility category for Sec.  
34.41(a) is changed to Category C. This notification of interpretation 
addresses the issues identified in PRM-34-6 regarding the two-person 
rule. Therefore, the NRC has preliminarily concluded that rulemaking is 
no longer necessary and is proposing discontinuing the rulemaking 
activity initiated in response to PRM-34-6.
    In addition, the NRC has concluded that the training requirements 
for the second qualified individual in Sec.  34.43(c) are sufficient to 
ensure safe radiographic operations. The NRC's review of operational 
experience since 1997 shows that the NRC's training requirements for 
the second qualified individual, either a radiographer's assistant or 
radiographer, are adequate to protect public health and safety. 
Therefore, the NRC proposes denying PRM-34-6.

    Dated at Rockville, Maryland, this 26th day of May 2021.

    For the Nuclear Regulatory Commission.
Wesley W. Held,
Acting Secretary of the Commission.
[FR Doc. 2021-11436 Filed 5-28-21; 8:45 am]
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