[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
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains regulatory documents
having general applicability and legal effect, most of which are keyed
to and codified in the Code of Federal Regulations, which is published
under 50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by the Superintendent of Documents.
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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.
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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.
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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]]
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Adams accession No. or Federal
Document Date Register citation
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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''.
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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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