Interim Enforcement Policy for Permanent Implant Brachytherapy Medical Event Reporting, 41125-41128 [2013-16435]
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was published in June 3, 2013; 78 FR
33117. The notice provided an
opportunity to submit comments on the
Commission’s proposed NSHC
determination. No comments have been
received. The notice also provided an
opportunity to request a hearing by
August 2, 2013, but indicated that if the
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determination, any such hearing would
take place after the issuance of the
amendment.
The Commission’s related evaluation
of the amendment, finding of exigent
circumstances, state consultation, and
final NSHC determination are contained
in a safety evaluation dated June 22,
2013.
Attorney for licensee: General
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NRC Branch Chief: Jessie F.
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The Commission’s related evaluation
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Safety Evaluation dated June 19, 2013.
No significant hazards consideration
comments received: No.
Dated at Rockville, Maryland, this 28th day
of June 2013.
For the Nuclear Regulatory Commission.
Michele G. Evans,
Director, Division of Operating Reactor
Licensing, Office of Nuclear Reactor
Regulation.
[FR Doc. 2013–16293 Filed 7–8–13; 8:45 am]
BILLING CODE 7590–01–P
NUCLEAR REGULATORY
COMMISSION
[NRC–2013–0114]
Interim Enforcement Policy for
Permanent Implant Brachytherapy
Medical Event Reporting
Nuclear Regulatory
Commission.
ACTION: Policy statement; revision.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC) is issuing an interim
Enforcement Policy that allows the staff
to exercise enforcement discretion for
certain violations of regulations for
reporting medical events occurring
under an NRC licensee’s permanent
implant brachytherapy program. This
interim policy affects NRC licensees that
are authorized to perform permanent
implant brachytherapy.
DATES: This policy revision is effective
July 9, 2013. The NRC is not soliciting
comments on this revision to its
Enforcement Policy at this time.
ADDRESSES: Please refer to Docket ID
NRC–2013–0114 when contacting the
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SUMMARY:
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NRC about the availability of
information regarding this document.
You may access information related to
this document, which the NRC
possesses and is publicly available,
using any of the following methods:
• Federal Rulemaking Web site: Go to
https://www.regulations.gov and search
for Docket ID NRC–2013–0114. Address
questions about NRC dockets to Carol
Gallagher; telephone: 301–492–3668;
email: Carol.Gallagher@nrc.gov. 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 access publicly
available documents online in the NRC
Library at https://www.nrc.gov/readingrm/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 pdr.resource@nrc.gov. 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
Enforcement Policy is available in
ADAMS under Accession No.
ML12340A295.
• 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.
The NRC maintains the Enforcement
Policy on its Web site at https://
www.nrc.gov; select ‘‘Public Meetings
and Involvement,’’ then ‘‘Enforcement,’’
and then ‘‘Enforcement Policy.’’
FOR FURTHER INFORMATION CONTACT:
Kerstun Day, Office of Enforcement,
U.S. Nuclear Regulatory Commission,
Washington, DC 20555–0001; telephone:
301–415–1252; email:
Kerstun.Day@nrc.gov.
SUPPLEMENTARY INFORMATION:
Background
In SECY–05–0234, ‘‘Adequacy of
Medical Event Definitions in 10 CFR
[Title 10 of the Code of Federal
Regulations] 35.3045, and
Communicating Associated Risks to the
Public,’’ (ADAMS Accession No.
ML041620583), dated December 27,
2005, the staff recommended that the
Commission approve the staff’s plan to
revise the medical event definition and
the associated requirements for written
directives to be source strength-based
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41125
instead of dose-based. The Commission
directed the staff to proceed directly
with the development of a proposed
rule to modify both the written directive
requirements in § 35.40(b)(6) and the
medical event reporting requirements in
§ 35.3045 for permanent implant
brachytherapy. The modified medical
event reporting requirements would
allow the medical event criteria to be
based on source strength as opposed to
dose. In SRM–SECY–08–0080,
‘‘Proposed Rule: Medical Use of
Byproduct Material—Amendments/
Medical Events Definitions’’ (ADAMS
Accession No. ML082100074), dated
July 25, 2008, the Commission approved
publication of a proposed rule to (1)
amend sections in 10 CFR part 35
involving medical event reporting and
(2) clarify requirements for permanent
implant brachytherapy programs.
The proposed rule was published for
public comment in the Federal Register
on August 6, 2008 (73 FR 45635). The
vast majority of commenters offered no
objection to converting the medical
event criteria from dose-based to source
strength-based. However, following an
evaluation of a number of medical
events in 2008, the staff recognized that
an unintended effect of the proposed
rule would have been that some
significant events would not be
identified, categorized, and reported as
medical events, which would have been
contrary to the original regulatory
intent. Therefore, in SECY–10–0062,
‘‘Reproposed Rule: Medical Use of
Byproduct Material—Amendments/
Medical Event Definitions’’ (ADAMS
Accession No. ML100890121), dated
May 18, 2010, the staff recommended
that the NRC publish a revised proposed
rule to retain dose-based criteria.
However, following a Commission
meeting in which members of the NRC’s
Advisory Committee on the Medical Use
of Isotopes (ACMUI) and certain
stakeholders opposed this approach, the
Commission disapproved the staff’s
recommendation and directed the staff
to work closely with the ACMUI and
stakeholders to develop a revised
medical event definition that would
protect patients’ interests and allow
physicians necessary flexibility, while
enabling the agency to detect failures
and misapplication of byproduct
materials. The staff worked closely with
the ACMUI and held stakeholder
workshops to discuss issues associated
with the medical event definition. The
meeting summaries from the
stakeholder workshops are available in
ADAMS under Accession Nos.
ML111930470 and ML112510385.
Following these outreach efforts, the
NRC staff developed recommendations
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in SECY–12–0053, ‘‘Recommendations
on Regulatory Changes for Permanent
Implant Brachytherapy Programs’’
(ADAMS Accession No. ML12072A306),
dated April 5, 2012, defining separate
medical event reporting criteria
exclusively for permanent implant
brachytherapy and, for permanent
implant brachytherapy, changing from a
dose-based criterion to a hybrid
definition using primarily sourcestrength based criteria but also retaining
certain dose-based criteria for assessing
whether a medical event occurred. In
SRM–SECY–12–0053,
‘‘Recommendations on Regulatory
Changes for Permanent Implant
Brachytherapy Programs,’’ issued on
August 13, 2012 (ADAMS Accession
No. ML122260211), the Commission
approved these recommendations and
directed that modifications be
developed as part of a so-called
‘‘expanded’’ rulemaking that had begun
in July 2010 to amend 10 CFR part 35.
The NRC staff is currently revising the
regulations in 10 CFR part 35 for
permanent implant brachytherapy
programs which may eliminate dosebased medical event reporting
requirements for treatment sites. In the
interim, the NRC has developed this
policy with regard to permanent
implant brachytherapy for the reasons
explained below in the Discussion
section of this document.
Discussion
Section 35.40, Written directives,
provides that for permanent implant
brachytherapy, the written directive
must contain, before implantation, the
treatment site, radionuclide, and dose;
and after implantation but before
completion of the procedure, the
radionuclide, treatment site, number of
sources, and total source strength and
exposure time or the total dose.
Section 35.41, Procedures for
administrations requiring a written
directive, requires that a licensee
performing medical administrations
must develop, implement, and maintain
written procedures to provide high
confidence that, among other things,
each administration is in accordance
with the treatment plan, if applicable,
and the written directive.
Section 35.3045, Report and
notification of a medical event, provides
the criteria that must be met for a
medical administration to be reported as
a medical event. Among the criteria,
there is a criterion for reporting a
medical event involving dose to the
treatment site in § 35.3045(a)(1) which
specifies a threshold based on absorbed
dose variance (i.e., a comparison of the
dose delivered as a result of the medical
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administration with the prescribed
dose) as measured in sieverts (Sv) or in
rem, and a threshold for percent
variance (i.e., the difference between
delivered dose and prescribed dose
measured as a percentage). Section
35.3045(a)(1) includes limits for both of
these dose thresholds. If both limits are
exceeded, a medical administration
would be required to be reported as a
medical event, based on an evaluation
of the dose to the treatment site.
With regard to these criteria,
§ 35.3045(a)(1) does not currently
provide separate criteria for permanent
implant brachytherapy, and does not
explicitly state whether, for permanent
implant brachytherapy, the comparison
of delivered dose to prescribed dose can
be done with doses expressed as total
source strength and exposure time for
determining percent dose variance for
the treatment site. The definition of
prescribed dose for manual
brachytherapy in § 35.2, Definitions,
permits the doses to be expressed as
total source strength and exposure time
as well as absorbed dose. However,
§ 35.3045(a)(1) specifies the threshold
for delivered absorbed dose variance
from prescribed dose in sieverts (Sv) or
in rem. Therefore, § 35.3045(a)(1)
requires that this comparison of
delivered absorbed dose to prescribed
dose must be performed in terms of
absorbed dose to determine whether a
medical event has occurred. Section
35.3045(a)(1) therefore does not provide
licensees with the option to use total
source strength and exposure time
instead of absorbed dose when
evaluating the difference between the
delivered absorbed dose and the
prescribed dose.
When completing the written
directive after permanent implant
brachytherapy implantation, the
delivered dose (for the treatment site)
may be expressed as total source
strength and exposure time. In such a
situation, in order to allow a
comparison to be made between the
delivered dose and the dose prescribed
in the written directive, the
preimplantation entry in the written
directive for prescribed dose must also
have been expressed as total source
strength and exposure time. However, in
accordance with § 35.3045(a)(1),
medical use licensees must currently
perform a treatment site medical event
evaluation with both the delivered dose
and the prescribed dose expressed in
sieverts or rem for determination of
absorbed dose variance. Therefore, if the
licensee specifies treatment site doses in
the written directive as total source
strength and exposure time, then the
licensee must also provide enough
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information to allow for the absorbed
dose calculation (in sieverts or rem) to
ensure compliance with § 35.3045(a)(1).
This creates an unnecessary burden for
licensees.
The treatment site doses for
therapeutic uses are large enough that if
the percent variance of delivered dose
from prescribed dose for the treatment
site exceeds the threshold for reporting
a medical event (i.e., 20 percent), then
the threshold for absorbed dose variance
for the treatment site (i.e., 0.5 Sv (50
rem)), will also be exceeded. Hence, the
two linked criteria for a treatment site
medical event in § 35.3045(a)(1) will
both have been met. Therefore, the staff
recognizes the need to provide
regulatory relief to licensees from the
current requirement, so a comparison of
delivered dose to prescribed dose for
determination of absorbed dose
variance, with both doses expressed in
sieverts or rem, is not necessary.
This interim enforcement policy
provides enforcement discretion for
both existing and future violations of
the current § 35.3045(a)(1) requirement
relating to treatment site dose
comparisons for permanent implant
brachytherapy. Under this interim
enforcement policy, the staff will
typically exercise enforcement
discretion and not cite a violation for
failure to use a dose-based calculation if
the authorized treatment mode is
permanent implant brachytherapy and
licensees use total source strength and
exposure time for evaluating the
existence of a medical event. This
approach will allow for an effective and
objective criterion for medical event
reporting. In order for enforcement
discretion to be exercised, however, the
event cannot result in the
misapplication of byproduct material.
This policy does not provide regulatory
relief from complying with any other
aspect of § 35.3045, including the
requirements for evaluation of dose to
normal tissue.
Enforcement discretion would only
apply in this situation if the licensee
had entered both the prescribed dose
and the delivered dose into the written
directive in terms of total source
strength and exposure time. Also, this
dose comparison could only be made if
the licensee’s documented procedures
required under § 35.41 specify use of
total source strength and exposure time
as the basis for the required treatment
site dose comparison.
In addition, the NRC will normally
exercise enforcement discretion for
violations of current § 35.3045(a)(1)
when the total dose to the permanent
implant brachytherapy treatment site
equals or exceeds 120 percent of the
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Federal Register / Vol. 78, No. 131 / Tuesday, July 9, 2013 / Notices
prescribed dose. This enforcement
discretion would only apply if: (1) The
licensee used absorbed dose to compare
the dose delivered to the treatment site
with the prescribed dose; (2) doses to
normal tissues and structures did not
exceed the regulatory dose limits for
reporting medical events specified in
current § 35.3045(a)(3); and (3) the total
dose for the treatment site was
expressed in the written directive as
absorbed dose. Section 35.3045(a)(1)(i)
limits the variance of delivered dose
from prescribed dose to less than 20
percent, so if the delivered dose
variance from prescribed dose equals 20
percent or more, the delivered dose
equals 120 percent or more of the
prescribed dose.
As part of the ongoing 10 CFR part 35
proposed rulemaking, stakeholders have
informed the NRC that variables in postimplant dosimetry studies cause
calculated absorbed dose to be an
unreliable metric for regulatory
purposes; however, licensees have more
control over delivery of the prescribed
dose when using source strength and
exposure time. As a result, this
enforcement discretion will not apply if
the total dose for the treatment site was
expressed in the written directive as
total source strength and exposure time.
This does not change the physician’s
current ability to make intraoperative
adjustments in the quantity of source
strength implanted based on the
conditions encountered during the
surgical procedure and to document
such adjustments in the portion of the
written directive required after
implantation but before completion of
the procedure.
This regulatory relief does not pose a
safety concern because the NRC
recognizes that the overall clinical
objective of permanent implant
therapies is to deliver as much radiation
dose as possible to the treatment site
without exceeding medically-recognized
dose limits for nearby normal tissues
and structures (i.e., organs at risk).
Licensees using this regulatory relief
must evaluate dose to nearby normal
tissues and structures in accordance
with the requirements in § 35.3045(a)(3)
to determine if a medical event has
occurred. In addition, this policy is not
intended to grant discretion for doses
less than 80 percent of the prescribed
dose. The intent of permanent implant
brachytherapy is to deliver at least a
minimum dose in accordance with the
physician’s direction; therefore,
exercising enforcement discretion for an
underdose would not further this intent.
Licensees shall comply with all other
requirements, as applicable, unless
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explicitly replaced or amended in this
interim policy.
The NRC will keep this interim policy
in place until the implementation date
of a final rule associated with the
medical event reporting requirements.
Accordingly, the NRC has revised its
Enforcement Policy to read as follows:
Interim NRC Enforcement Policy
9.3 Enforcement Discretion for
Permanent Implant Brachytherapy
Medical Event Reporting (10 CFR
35.3045)
This section sets forth the interim
policy that the NRC will use for medical
event reporting violations under current
10 CFR 35.3045. Enforcement discretion
will typically be exercised for reporting
violations in the following scenarios,
subject to criteria specified below, when
the authorized treatment mode is
permanent implant brachytherapy: (1)
the licensee uses total source strength
and exposure time for evaluating the
existence of a treatment site medical
event; or (2) the total absorbed dose to
the treatment site equals or exceeds 120
percent of the prescribed dose. This
policy does not provide regulatory relief
from complying with any other aspect of
§§ 35.41 or 35.3045, including the
requirements related to the evaluation of
dose to normal tissue.
The interim policy applies to
violations that result from an otherwise
appropriate use of total source strength
and exposure time when determining
the existence of a medical event and
when the use of these values does not
result in the misapplication of
byproduct material by the licensee.
Specifically, under this interim
Enforcement Policy, the NRC will
normally not take enforcement action
for using total source strength and
exposure time to compare the dose
delivered to the treatment site with the
prescribed dose when evaluating
whether a medical administration is a
medical event under § 35.3045(a)(1) if
the authorized treatment mode is
permanent implant brachytherapy and
all of the following criteria are met:
a. The licensee’s documented
procedures required under § 35.41
specify total source strength and
exposure time as the regulatory
evaluation values for treatment site dose
comparisons;
b. The licensee entered both the
prescribed dose and the delivered dose
into the written directive as total source
strength and exposure time; and
c. Per § 35.3045, the licensee timely
reported the event based on that
treatment site dose comparison, if
applicable.
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41127
In addition, the NRC will normally
not take enforcement action against a
licensee for not submitting a medical
event report when the permanent
implant brachytherapy treatment site
total dose equals or exceeds 120 percent
of the prescribed dose. This
enforcement discretion would only
apply if: (1) The licensee used absorbed
dose to compare the dose delivered to
the treatment site with the prescribed
dose; (2) doses to normal tissues and
structures did not exceed the regulatory
dose limits for reporting medical events
specified in current § 35.3045(a)(3); and
(3) the total dose for the treatment site
was expressed in the written directive
as absorbed dose.
This discretion will not be exercised
for licensees using source strength and
exposure time to compare the dose
delivered to the treatment site with the
prescribed dose, since it is expected that
the licensee has more control over
delivery of the prescribed dose when
using source strength and exposure
time. However, this is not intended to
limit the physician’s current ability to
make intraoperative adjustments in the
quantity of source strength to be
implanted based on the conditions
encountered during the surgical
procedure and to document such
adjustments in the portion of the written
directive required after implantation but
before completion of the procedure.
Licensees shall comply with all other
requirements, as applicable, unless
explicitly replaced or amended in this
interim policy.
This interim policy will remain in
place until the implementation date of
a final rule associated with the medical
event reporting requirements.
Procedural Requirements
Paperwork Reduction Act Statement
This policy statement does not
contain new or amended information
collection requirements subject to the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). Existing
requirements were approved by the
Office of Management and Budget,
approval numbers 3150–0010 and 3150–
0136.
Public Protection Notification
The NRC may not conduct or sponsor,
and a person is not required to respond
to, a request for information or an
information collection requirement
unless the requesting document
displays a currently valid OMB control
number.
Congressional Review Act
In accordance with the Congressional
Review Act of 1996, the NRC has
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Federal Register / Vol. 78, No. 131 / Tuesday, July 9, 2013 / Notices
determined that this action is not a
major rule and has verified this
determination with the OMB Office of
Information and Regulatory Affairs.
Dated at Rockville, MD, this 3rd day of
July, 2013.
For the Nuclear Regulatory Commission.
Rochelle C. Bavol,
Acting Secretary of the Commission.
[FR Doc. 2013–16435 Filed 7–8–13; 8:45 am]
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AGENCY HOLDING THE MEETINGS: Nuclear
Regulatory Commission.
DATES: Weeks of July 8, 15, 22, 29,
August 5, 12, 2013.
PLACE: Commissioners’ Conference
Room, 11555 Rockville Pike, Rockville,
Maryland.
STATUS: Public and Closed.
Week of July 8, 2013
Tuesday, July 9, 2013
9:30 a.m. Briefing on Security Issues
(Closed—Ex. 1).
Wednesday, July 10, 2013
9:00 a.m. Briefing on NRC
International Activities (Part 1) (Public
Meeting) (Contact: Karen Henderson,
301–415–0202).
This meeting will be webcast live at
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10:30 a.m. Briefing on NRC
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Henderson, 301–415–0202).
Thursday, July 11, 2013
9:30 a.m. Meeting with the Advisory
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This meeting will be webcast live at
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Week of July 15, 2013—Tentative
There are no meetings scheduled for
the week of July 15, 2013.
Week of July 22, 2013—Tentative
There are no meetings scheduled for
the week of July 22, 2013.
Week of July 29, 2013—Tentative
There are no meetings scheduled for
the week of July 29, 2013.
Week of August 5, 2013—Tentative
There are no meetings scheduled for
the week of August 5, 2013.
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Week of August 12, 2013—Tentative
There are no meetings scheduled for
the week of August 12, 2013.
*
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* The schedule for Commission
meetings is subject to change on short
notice. To verify the status of meetings,
call (recording)—301–415–1292.
Contact person for more information:
Rochelle Bavol, 301–415–1651.
*
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The NRC Commission Meeting
Schedule can be found on the Internet
at: https://www.nrc.gov/public-involve/
public-meetings/schedule.html.
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The NRC provides reasonable
accommodation to individuals with
disabilities where appropriate. If you
need a reasonable accommodation to
participate in these public meetings, or
need this meeting notice or the
transcript or other information from the
public meetings in another format (e.g.
braille, large print), please notify
Kimberly Meyer, NRC Disability
Program Manager, at 301–287–0727, or
by email at kimberly.meyerchambers@nrc.gov. Determinations on
requests for reasonable accommodation
will be made on a case-by-case basis.
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This notice is distributed
electronically to subscribers. If you no
longer wish to receive it, or would like
to be added to the distribution, please
contact the Office of the Secretary,
Washington, DC 20555 (301–415–1969),
or send an email to
darlene.wright@nrc.gov.
July 3, 2013.
Rochelle C. Bavol,
Policy Coordinator, Office of the Secretary.
[FR Doc. 2013–16575 Filed 7–5–13; 4:15 pm]
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POSTAL REGULATORY COMMISSION
[Docket No. MT2013–2; Order No. 1771]
Market Test of International
Merchandise Return Service
Postal Regulatory Commission.
Notice
AGENCY:
ACTION:
The Commission is noticing a
recently-filed Postal Service proposal to
conduct a market test of a competitive
experimental product called
International Merchandise Return
Service-Non-Published Rates (IMRS–
NPR). This notice informs the public of
the filing, invites public comment, and
takes other administrative steps.
DATES: Comments are due: July 15,
2013.
SUMMARY:
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Submit comments
electronically via the Commission’s
Filing Online system at https://
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comments electronically should contact
the person identified in the FOR FURTHER
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ADDRESSES:
FOR FURTHER INFORMATION CONTACT:
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SUPPLEMENTARY INFORMATION:
Table of Contents
I. Introduction
II. Background
III. Contents of Filing
IV. Notice of Filing
V. Ordering Paragraphs
I. Introduction
On July 1, 2013, the Postal Service
filed a notice, pursuant to 39 U.S.C.
3641, announcing its intent to conduct
a market test of a competitive
experimental product called
International Merchandise Return
Service—Non-Published Rates (IMRS–
NPR).1 IMRS–NPR is comprised of Air
Parcels or Express Mail Service
packages returning to the United States
that originate from a foreign territory
served by another postal operator with
which the Postal Service has made an
arrangement for a return service. Id. at
2. The market test is scheduled to begin
on or shortly after August 15, 2013 and
continue for two calendar years. Id. at
6.
II. Background
IMRS–NPR items consist of returned
merchandise that consumers purchased
through online retailers in the United
States. Id. at 2. IMRS–NPR will enable
foreign consumers to create return labels
and postage payment to return products
back to the United States. Id. The
consumer can create his or her own
shipping label and send it to the
merchant through the consumer’s postal
channel.
The Postal Service explains that many
shipping companies create methods to
improve ease of use by creating labels
for the merchants and either sending the
labels by email to their customers or
providing labels for use if an item is
returned. Id. It states that returns are an
inevitable part of international online
commerce, and customers consider
returns as an important part of
1 Notice of the United States Postal Service of
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(IMRS–NPR) and Notice of Filing IMRS–NPR Model
Contract and Application for Non-Public Treatment
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[Federal Register Volume 78, Number 131 (Tuesday, July 9, 2013)]
[Notices]
[Pages 41125-41128]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-16435]
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NUCLEAR REGULATORY COMMISSION
[NRC-2013-0114]
Interim Enforcement Policy for Permanent Implant Brachytherapy
Medical Event Reporting
AGENCY: Nuclear Regulatory Commission.
ACTION: Policy statement; revision.
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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is issuing an
interim Enforcement Policy that allows the staff to exercise
enforcement discretion for certain violations of regulations for
reporting medical events occurring under an NRC licensee's permanent
implant brachytherapy program. This interim policy affects NRC
licensees that are authorized to perform permanent implant
brachytherapy.
DATES: This policy revision is effective July 9, 2013. The NRC is not
soliciting comments on this revision to its Enforcement Policy at this
time.
ADDRESSES: Please refer to Docket ID NRC-2013-0114 when contacting the
NRC about the availability of information regarding this document. You
may access information related to this document, which the NRC
possesses and is publicly available, using any of the following
methods:
Federal Rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC-2013-0114. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-492-
3668; email: Carol.Gallagher@nrc.gov. 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 access publicly available documents online in the NRC
Library at https://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 pdr.resource@nrc.gov. 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 Enforcement Policy is available in ADAMS under
Accession No. ML12340A295.
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.
The NRC maintains the Enforcement Policy on its Web site at https://www.nrc.gov; select ``Public Meetings and Involvement,'' then
``Enforcement,'' and then ``Enforcement Policy.''
FOR FURTHER INFORMATION CONTACT: Kerstun Day, Office of Enforcement,
U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001;
telephone: 301-415-1252; email: Kerstun.Day@nrc.gov.
SUPPLEMENTARY INFORMATION:
Background
In SECY-05-0234, ``Adequacy of Medical Event Definitions in 10 CFR
[Title 10 of the Code of Federal Regulations] 35.3045, and
Communicating Associated Risks to the Public,'' (ADAMS Accession No.
ML041620583), dated December 27, 2005, the staff recommended that the
Commission approve the staff's plan to revise the medical event
definition and the associated requirements for written directives to be
source strength-based instead of dose-based. The Commission directed
the staff to proceed directly with the development of a proposed rule
to modify both the written directive requirements in Sec. 35.40(b)(6)
and the medical event reporting requirements in Sec. 35.3045 for
permanent implant brachytherapy. The modified medical event reporting
requirements would allow the medical event criteria to be based on
source strength as opposed to dose. In SRM-SECY-08-0080, ``Proposed
Rule: Medical Use of Byproduct Material--Amendments/Medical Events
Definitions'' (ADAMS Accession No. ML082100074), dated July 25, 2008,
the Commission approved publication of a proposed rule to (1) amend
sections in 10 CFR part 35 involving medical event reporting and (2)
clarify requirements for permanent implant brachytherapy programs.
The proposed rule was published for public comment in the Federal
Register on August 6, 2008 (73 FR 45635). The vast majority of
commenters offered no objection to converting the medical event
criteria from dose-based to source strength-based. However, following
an evaluation of a number of medical events in 2008, the staff
recognized that an unintended effect of the proposed rule would have
been that some significant events would not be identified, categorized,
and reported as medical events, which would have been contrary to the
original regulatory intent. Therefore, in SECY-10-0062, ``Reproposed
Rule: Medical Use of Byproduct Material--Amendments/Medical Event
Definitions'' (ADAMS Accession No. ML100890121), dated May 18, 2010,
the staff recommended that the NRC publish a revised proposed rule to
retain dose-based criteria. However, following a Commission meeting in
which members of the NRC's Advisory Committee on the Medical Use of
Isotopes (ACMUI) and certain stakeholders opposed this approach, the
Commission disapproved the staff's recommendation and directed the
staff to work closely with the ACMUI and stakeholders to develop a
revised medical event definition that would protect patients' interests
and allow physicians necessary flexibility, while enabling the agency
to detect failures and misapplication of byproduct materials. The staff
worked closely with the ACMUI and held stakeholder workshops to discuss
issues associated with the medical event definition. The meeting
summaries from the stakeholder workshops are available in ADAMS under
Accession Nos. ML111930470 and ML112510385.
Following these outreach efforts, the NRC staff developed
recommendations
[[Page 41126]]
in SECY-12-0053, ``Recommendations on Regulatory Changes for Permanent
Implant Brachytherapy Programs'' (ADAMS Accession No. ML12072A306),
dated April 5, 2012, defining separate medical event reporting criteria
exclusively for permanent implant brachytherapy and, for permanent
implant brachytherapy, changing from a dose-based criterion to a hybrid
definition using primarily source-strength based criteria but also
retaining certain dose-based criteria for assessing whether a medical
event occurred. In SRM-SECY-12-0053, ``Recommendations on Regulatory
Changes for Permanent Implant Brachytherapy Programs,'' issued on
August 13, 2012 (ADAMS Accession No. ML122260211), the Commission
approved these recommendations and directed that modifications be
developed as part of a so-called ``expanded'' rulemaking that had begun
in July 2010 to amend 10 CFR part 35. The NRC staff is currently
revising the regulations in 10 CFR part 35 for permanent implant
brachytherapy programs which may eliminate dose-based medical event
reporting requirements for treatment sites. In the interim, the NRC has
developed this policy with regard to permanent implant brachytherapy
for the reasons explained below in the Discussion section of this
document.
Discussion
Section 35.40, Written directives, provides that for permanent
implant brachytherapy, the written directive must contain, before
implantation, the treatment site, radionuclide, and dose; and after
implantation but before completion of the procedure, the radionuclide,
treatment site, number of sources, and total source strength and
exposure time or the total dose.
Section 35.41, Procedures for administrations requiring a written
directive, requires that a licensee performing medical administrations
must develop, implement, and maintain written procedures to provide
high confidence that, among other things, each administration is in
accordance with the treatment plan, if applicable, and the written
directive.
Section 35.3045, Report and notification of a medical event,
provides the criteria that must be met for a medical administration to
be reported as a medical event. Among the criteria, there is a
criterion for reporting a medical event involving dose to the treatment
site in Sec. 35.3045(a)(1) which specifies a threshold based on
absorbed dose variance (i.e., a comparison of the dose delivered as a
result of the medical administration with the prescribed dose) as
measured in sieverts (Sv) or in rem, and a threshold for percent
variance (i.e., the difference between delivered dose and prescribed
dose measured as a percentage). Section 35.3045(a)(1) includes limits
for both of these dose thresholds. If both limits are exceeded, a
medical administration would be required to be reported as a medical
event, based on an evaluation of the dose to the treatment site.
With regard to these criteria, Sec. 35.3045(a)(1) does not
currently provide separate criteria for permanent implant
brachytherapy, and does not explicitly state whether, for permanent
implant brachytherapy, the comparison of delivered dose to prescribed
dose can be done with doses expressed as total source strength and
exposure time for determining percent dose variance for the treatment
site. The definition of prescribed dose for manual brachytherapy in
Sec. 35.2, Definitions, permits the doses to be expressed as total
source strength and exposure time as well as absorbed dose. However,
Sec. 35.3045(a)(1) specifies the threshold for delivered absorbed dose
variance from prescribed dose in sieverts (Sv) or in rem. Therefore,
Sec. 35.3045(a)(1) requires that this comparison of delivered absorbed
dose to prescribed dose must be performed in terms of absorbed dose to
determine whether a medical event has occurred. Section 35.3045(a)(1)
therefore does not provide licensees with the option to use total
source strength and exposure time instead of absorbed dose when
evaluating the difference between the delivered absorbed dose and the
prescribed dose.
When completing the written directive after permanent implant
brachytherapy implantation, the delivered dose (for the treatment site)
may be expressed as total source strength and exposure time. In such a
situation, in order to allow a comparison to be made between the
delivered dose and the dose prescribed in the written directive, the
preimplantation entry in the written directive for prescribed dose must
also have been expressed as total source strength and exposure time.
However, in accordance with Sec. 35.3045(a)(1), medical use licensees
must currently perform a treatment site medical event evaluation with
both the delivered dose and the prescribed dose expressed in sieverts
or rem for determination of absorbed dose variance. Therefore, if the
licensee specifies treatment site doses in the written directive as
total source strength and exposure time, then the licensee must also
provide enough information to allow for the absorbed dose calculation
(in sieverts or rem) to ensure compliance with Sec. 35.3045(a)(1).
This creates an unnecessary burden for licensees.
The treatment site doses for therapeutic uses are large enough that
if the percent variance of delivered dose from prescribed dose for the
treatment site exceeds the threshold for reporting a medical event
(i.e., 20 percent), then the threshold for absorbed dose variance for
the treatment site (i.e., 0.5 Sv (50 rem)), will also be exceeded.
Hence, the two linked criteria for a treatment site medical event in
Sec. 35.3045(a)(1) will both have been met. Therefore, the staff
recognizes the need to provide regulatory relief to licensees from the
current requirement, so a comparison of delivered dose to prescribed
dose for determination of absorbed dose variance, with both doses
expressed in sieverts or rem, is not necessary.
This interim enforcement policy provides enforcement discretion for
both existing and future violations of the current Sec. 35.3045(a)(1)
requirement relating to treatment site dose comparisons for permanent
implant brachytherapy. Under this interim enforcement policy, the staff
will typically exercise enforcement discretion and not cite a violation
for failure to use a dose-based calculation if the authorized treatment
mode is permanent implant brachytherapy and licensees use total source
strength and exposure time for evaluating the existence of a medical
event. This approach will allow for an effective and objective
criterion for medical event reporting. In order for enforcement
discretion to be exercised, however, the event cannot result in the
misapplication of byproduct material. This policy does not provide
regulatory relief from complying with any other aspect of Sec.
35.3045, including the requirements for evaluation of dose to normal
tissue.
Enforcement discretion would only apply in this situation if the
licensee had entered both the prescribed dose and the delivered dose
into the written directive in terms of total source strength and
exposure time. Also, this dose comparison could only be made if the
licensee's documented procedures required under Sec. 35.41 specify use
of total source strength and exposure time as the basis for the
required treatment site dose comparison.
In addition, the NRC will normally exercise enforcement discretion
for violations of current Sec. 35.3045(a)(1) when the total dose to
the permanent implant brachytherapy treatment site equals or exceeds
120 percent of the
[[Page 41127]]
prescribed dose. This enforcement discretion would only apply if: (1)
The licensee used absorbed dose to compare the dose delivered to the
treatment site with the prescribed dose; (2) doses to normal tissues
and structures did not exceed the regulatory dose limits for reporting
medical events specified in current Sec. 35.3045(a)(3); and (3) the
total dose for the treatment site was expressed in the written
directive as absorbed dose. Section 35.3045(a)(1)(i) limits the
variance of delivered dose from prescribed dose to less than 20
percent, so if the delivered dose variance from prescribed dose equals
20 percent or more, the delivered dose equals 120 percent or more of
the prescribed dose.
As part of the ongoing 10 CFR part 35 proposed rulemaking,
stakeholders have informed the NRC that variables in post-implant
dosimetry studies cause calculated absorbed dose to be an unreliable
metric for regulatory purposes; however, licensees have more control
over delivery of the prescribed dose when using source strength and
exposure time. As a result, this enforcement discretion will not apply
if the total dose for the treatment site was expressed in the written
directive as total source strength and exposure time. This does not
change the physician's current ability to make intraoperative
adjustments in the quantity of source strength implanted based on the
conditions encountered during the surgical procedure and to document
such adjustments in the portion of the written directive required after
implantation but before completion of the procedure.
This regulatory relief does not pose a safety concern because the
NRC recognizes that the overall clinical objective of permanent implant
therapies is to deliver as much radiation dose as possible to the
treatment site without exceeding medically-recognized dose limits for
nearby normal tissues and structures (i.e., organs at risk). Licensees
using this regulatory relief must evaluate dose to nearby normal
tissues and structures in accordance with the requirements in Sec.
35.3045(a)(3) to determine if a medical event has occurred. In
addition, this policy is not intended to grant discretion for doses
less than 80 percent of the prescribed dose. The intent of permanent
implant brachytherapy is to deliver at least a minimum dose in
accordance with the physician's direction; therefore, exercising
enforcement discretion for an underdose would not further this intent.
Licensees shall comply with all other requirements, as applicable,
unless explicitly replaced or amended in this interim policy.
The NRC will keep this interim policy in place until the
implementation date of a final rule associated with the medical event
reporting requirements.
Accordingly, the NRC has revised its Enforcement Policy to read as
follows:
Interim NRC Enforcement Policy
9.3 Enforcement Discretion for Permanent Implant Brachytherapy Medical
Event Reporting (10 CFR 35.3045)
This section sets forth the interim policy that the NRC will use
for medical event reporting violations under current 10 CFR 35.3045.
Enforcement discretion will typically be exercised for reporting
violations in the following scenarios, subject to criteria specified
below, when the authorized treatment mode is permanent implant
brachytherapy: (1) the licensee uses total source strength and exposure
time for evaluating the existence of a treatment site medical event; or
(2) the total absorbed dose to the treatment site equals or exceeds 120
percent of the prescribed dose. This policy does not provide regulatory
relief from complying with any other aspect of Sec. Sec. 35.41 or
35.3045, including the requirements related to the evaluation of dose
to normal tissue.
The interim policy applies to violations that result from an
otherwise appropriate use of total source strength and exposure time
when determining the existence of a medical event and when the use of
these values does not result in the misapplication of byproduct
material by the licensee.
Specifically, under this interim Enforcement Policy, the NRC will
normally not take enforcement action for using total source strength
and exposure time to compare the dose delivered to the treatment site
with the prescribed dose when evaluating whether a medical
administration is a medical event under Sec. 35.3045(a)(1) if the
authorized treatment mode is permanent implant brachytherapy and all of
the following criteria are met:
a. The licensee's documented procedures required under Sec. 35.41
specify total source strength and exposure time as the regulatory
evaluation values for treatment site dose comparisons;
b. The licensee entered both the prescribed dose and the delivered
dose into the written directive as total source strength and exposure
time; and
c. Per Sec. 35.3045, the licensee timely reported the event based
on that treatment site dose comparison, if applicable.
In addition, the NRC will normally not take enforcement action
against a licensee for not submitting a medical event report when the
permanent implant brachytherapy treatment site total dose equals or
exceeds 120 percent of the prescribed dose. This enforcement discretion
would only apply if: (1) The licensee used absorbed dose to compare the
dose delivered to the treatment site with the prescribed dose; (2)
doses to normal tissues and structures did not exceed the regulatory
dose limits for reporting medical events specified in current Sec.
35.3045(a)(3); and (3) the total dose for the treatment site was
expressed in the written directive as absorbed dose.
This discretion will not be exercised for licensees using source
strength and exposure time to compare the dose delivered to the
treatment site with the prescribed dose, since it is expected that the
licensee has more control over delivery of the prescribed dose when
using source strength and exposure time. However, this is not intended
to limit the physician's current ability to make intraoperative
adjustments in the quantity of source strength to be implanted based on
the conditions encountered during the surgical procedure and to
document such adjustments in the portion of the written directive
required after implantation but before completion of the procedure.
Licensees shall comply with all other requirements, as applicable,
unless explicitly replaced or amended in this interim policy.
This interim policy will remain in place until the implementation
date of a final rule associated with the medical event reporting
requirements.
Procedural Requirements
Paperwork Reduction Act Statement
This policy statement does not contain new or amended information
collection requirements subject to the Paperwork Reduction Act of 1995
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the
Office of Management and Budget, approval numbers 3150-0010 and 3150-
0136.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
Congressional Review Act
In accordance with the Congressional Review Act of 1996, the NRC
has
[[Page 41128]]
determined that this action is not a major rule and has verified this
determination with the OMB Office of Information and Regulatory
Affairs.
Dated at Rockville, MD, this 3rd day of July, 2013.
For the Nuclear Regulatory Commission.
Rochelle C. Bavol,
Acting Secretary of the Commission.
[FR Doc. 2013-16435 Filed 7-8-13; 8:45 am]
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