Commercial Distribution of Tritium Markers, 45413-45415 [2015-18630]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 80, Number 146 (Thursday, July 30, 2015)]
[Rules and Regulations]
[Pages 45413-45415]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-18630]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 32

[Docket Nos. PRM-32-8; NRC-2013-0078]


Commercial Distribution of Tritium Markers

AGENCY: Nuclear Regulatory Commission.

ACTION: Petition for rulemaking; denial.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a 
petition for rulemaking (PRM), dated December 2, 2011, which was filed 
with the NRC by Motti Slodowitz on behalf of CampCo (the petitioner) 
and supplemented with additional information on September 18, 2012. The 
petitioner requests the NRC to amend its regulations that govern the 
licensing of products containing byproduct material to allow the 
commercial distribution of tritium markers for use under an exemption 
from licensing requirements. The NRC is denying the petition because 
the petitioner fails to demonstrate that a specific exemption is 
warranted and that the existing regulatory framework for self-luminous 
products is insufficient.

DATES: The docket for the petition for rulemaking, PRM-32-8, is closed 
on July 30, 2015.

ADDRESSES: Please refer to Docket ID NRC-2013-0078 when contacting the 
NRC about the availability of information regarding this petition. You 
can obtain publicly-available documents related to the petition using 
any of the following methods:
     Federal Rulemaking Web site: Go to https://www.regulations.gov and search on the petition Docket ID NRC-2013-0078. 
Address questions about NRC dockets to Carol Gallagher; telephone: 301-
415-3463; 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 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 ``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 (if it is 
available in ADAMS) is provided the first time that it is mentioned in 
the SUPPLEMENTARY INFORMATION section.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Vanessa Cox, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone: 301-415-8342; email: 
Vanessa.Cox@nrc.gov.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. The Petition
II. Public Comments on the Petition
III. Discussion
IV. Reasons for Denial
V. Conclusion

I. The Petition

    Section 2.802 of Title 10 of the Code of Federal Regulations (10 
CFR), ``Petition for rulemaking,'' provides an opportunity for any 
interested person to petition the Commission to issue, amend, or 
rescind any regulation. The NRC received a petition from Motti 
Slodowitz on behalf of CampCo dated December 2, 2011 (ADAMS Accession 
No. ML12132A332). The petition requests that the NRC amend certain 
regulations concerning exemptions from licensing for products 
containing byproduct material to include illumination tritium markers.
    On July 5, 2012 (ADAMS Accession No. ML121580046), the NRC 
requested supplemental information to further clarify the request. On 
September 18, 2012 (ADAMS Accession No. ML13112B010), the petitioner 
responded to the NRC's request and submitted supplemental information 
clarifying that the petitioner is requesting the NRC to amend paragraph 
(b) of 10 CFR 32.22, ``Self-luminous products containing tritium, 
krypton-85 or promethium-147: Requirements for license to manufacture, 
process, produce, or initially transfer;'' paragraph (c) of 10 CFR 
30.19, ``Self-luminous products containing tritium, krypton-85, or 
promethium-147;'' and 10 CFR 30.15, ``Certain items containing 
byproduct material.'' The petitioner also provided a dose assessment 
for the purpose of showing that the tritium markers would result in 
acceptably low doses.
    The petitioner requests that the NRC amend 10 CFR 32.22(b) to 
include an additional requirement stating that an applicant cannot be 
denied a device registration or distribution license if it

[[Page 45414]]

has adequately demonstrated that the criteria in applicable regulations 
have been met. The petitioner contends that the statement in 10 CFR 
32.22(b), that ``the Commission may deny an application for a specific 
license if the end uses of the product cannot be reasonably foreseen,'' 
is a subjective statement without specific criteria and that it is 
unfair to deny applications based upon subjective statements where the 
criteria are not codified in the regulations. The petitioner references 
a Memorandum on Scientific Integrity issued by President Obama on March 
9, 2009, which states that ``[s]cience and the scientific process must 
inform and guide decisions of [the] Administration on a wide range of 
issues, including improvement of public health.'' The petitioner notes 
that the NRC has previously denied approval of products because end 
uses of the products could not reasonably be foreseen. The petitioner 
also states that the term ``frivolous use,'' as used in the NRC's 
policy statement on consumer products (30 FR 3462; March 16, 1965, 
proposed revision 76 FR 63957; October 14, 2011) and in the NRC's 
guidance for materials licenses (NUREG-1556, Volume 3, Revision 1, 
``Consolidated Guidance About Materials Licenses: Applications for 
Sealed Source and Device Evaluation and Registration'' (ADAMS Accession 
No. ML041340618)), is not clearly defined and that there are no 
detailed criteria used to make determinations. The petitioner asserts 
that the potential misuse of a tritium marker as a toy should not 
result in the product being banned outright.
    The petitioner requests that the NRC also amend 10 CFR 30.19(c) to 
add that tritium markers used to label equipment are not considered to 
be toys or adornments and shall not be sold as such.
    The petitioner also requests that the NRC amend 10 CFR 30.15 to add 
a specific exemption for tritium markers with a maximum activity of 25 
millicuries (925 mBq) of tritium. The petitioner believes an exemption 
is warranted because of the usefulness of the tritium markers and the 
low dose potential. The petitioner states that the markers would not be 
a frivolous use of radioactive material, and that ``the potential 
radiation doses to members of the public under normal use and accident 
conditions...are within regulatory limits.'' The petitioner also states 
that the markers are sold in other countries and have practical benefit 
such as helping military personnel recover lost items, helping first 
responders locate tagged equipment at night, assisting hunters in 
finding lost items, and helping lost campers find their tents.

II. Public Comments on the Petition

    The notice of receipt published in the Federal Register (78 FR 
41720; July 11, 2013), invited interested persons to submit comments. 
The comment period closed on September 24, 2013. The NRC received one 
public comment opposing the petition. The commenter states:

    An interest in record keeping in the known supply of tritium 
should be recognized since tritium may, in some cases, be the only 
useful tracer for a smuggled weapon. An unrecorded presence of 
legitimately obtained tritium may lead to too many false positives 
during a crisis.

    Although the NRC is denying the petition, the NRC disagrees with 
the commenter that the presence of tritium in approved consumer 
products would negatively affect law enforcement efforts to track 
illegal weapons.

III. Discussion

    The NRC regulates consumer products containing byproduct material 
without imposing regulatory controls on the consumer-user. Those who 
manufacture or distribute products containing byproduct material, 
including consumer products, must have a license issued under 10 CFR 
part 32. Exemptions for users of products containing byproduct material 
appear in 10 CFR part 30. These exemptions are either product-specific 
or class exemptions.
    A class exemption covers a class of products, for which a person 
who wishes to manufacture or distribute a specific product within that 
class may submit a license application. An applicant must provide 
safety information about the product and demonstrate that the product 
meets a number of safety criteria. Exemption of a product under a class 
exemption is dependent on approval under the applicable regulations for 
the distributor.
    Section 30.19 is a class exemption for the receipt, possession, 
use, transfer, ownership, or acquisition of self-luminous products 
containing certain radionuclides, including tritium. This exemption 
does not apply to persons who manufacture, process, produce, or 
initially transfer such products for sale or distribution. Paragraph 
(c) in 10 CFR 30.19 states that the exemption for products containing 
tritium, krypton-85, or promethium-147 does not apply to products 
primarily for frivolous purposes or in toys or adornments. Those who 
wish to intially transfer for sale or distribution self-luminous 
products covered by the 10 CFR 30.19 class exemption must first apply 
for and receive a specific license under 10 CFR 32.22 and must have the 
product registered under 10 CFR 32.210. Applicants for licenses under 
10 CFR 32.22 must also demonstrate that the product is designed and 
manufactured in accordance with the safety criteria in 10 CFR 32.23. 
Paragraph 32.22(b) further indicates that the Commission may deny an 
application for a specific license if the end uses of the product 
cannot be reasonably foreseen.
    Section 30.15 provides a list of product-specific exemptions for 
certain products containing byproduct material, subject to certain 
limits including specific radionuclide quantity limits. The receipt, 
possession, use, transfer, ownership, and acquisition of these 
products, which includes self-luminous timepieces, hands, and dials, 
are exempt from licensing requirements. Persons wishing to apply or 
incorporate byproduct material into these products or initially 
transfer them for sale or distribution must apply for a specific 
license under 10 CFR 32.14. Unlike products covered by the 10 CFR 30.19 
class exemption, specific products listed in 10 CFR 30.15 do not need 
to be registered under 10 CFR 32.210 in order for one to obtain a 
specific license for distribution.
    The NRC's Consumer Product Policy Statement (CPPS or policy) (79 FR 
2907; January 16, 2014) provides the Commission's policy with respect 
to approval of the use of byproduct, source, and special nuclear 
material in products intended for use by the general public (consumer 
products) without the imposition of regulatory controls on the 
consumer-user. The revision of the consumer product policy statement 
was finalized after the petition was filed.

Petitioner's Requests

Request 1
    The petitioner requests that the NRC amend 10 CFR 32.22(b) to 
include a statement that an applicant cannot be denied a device 
registration or distribution license if it has adequately demonstrated 
that the criteria in the applicable regulations have been met.
Response to Petitioner's Request 1
    Paragraph 32.22(b) allows the NRC to exercise its judgment in 
denying a license application when the end use of a product cannot be 
reasonably foreseen. The requested amendment would affect all future 
applications for a license under this section and would limit the NRC's 
ability to deny an applicant based on whether a practice (in this case, 
the distribution of certain products for use by the general public)

[[Page 45415]]

is justified. Furthermore, this suggested revision would make 10 CFR 
32.22(b) internally inconsistent and essentially would nullify it.
    Such a revision would be inconsistent with the NRC's CPPS, revised 
in January 2014. In response to a public comment that discussed the 
ability to foresee the end uses of products, the Commission explicitly 
stated the importance of evaluating products ``on a case-by-case 
basis,'' listing a number of considerations such as likely doses, the 
probability and severity of accidents and misuse, and the benefits to 
be obtained from the product, noting that these cannot be reasonably 
evaluated if the ultimate uses of the product are not known (79 FR 
2910). The Commission addressed the importance of this particular 
regulatory criterion that allows the denial of a distribution license 
for a product whose end uses cannot be reasonably foreseen, stating 
``[s]elf-luminous products in particular have a wide range of potential 
applications and might easily be widely used for purposes other than 
those originally intended if not clearly designed for a specific use. 
This criterion also ensures that the uses . . . of radioactive material 
in products are justified.'' Id. Therefore, it is important for the NRC 
to be able to exercise its judgment in denying a license application 
when the end use of a product cannot be reasonably foreseen.
Request 2
    The petitioner requests that the NRC amend 10 CFR 30.19(c) to add 
that tritium markers used to label equipment are not considered to be 
toys or adornments and shall not be sold as such.
Response to Petitioner's Request 2
    The requested amendment stating that the tritium markers ``shall 
not be sold'' as toys or adornments would not further control whether 
these products can be distributed as such. Additionally, there is no 
need to expressly designate products that are or are not ``toys or 
adornments'' for purposes of 10 CFR 30.19(c) because NRC staff can 
apply the normal dictionary definition of such terms to individual 
products on a case-by-case basis. Paragraph 30.19(c) also addresses 
self-luminous products generally, which makes references to specific 
products inappropriate. Moreover, including a reference to tritium 
markers used for labeling purposes would prejudge the product as 
covered by the exemption, contrary to the intent of the regulatory 
framework and the CPPS, which stresses the importance of case-by-case 
determinations.
Request 3
    The petitioner requests that the NRC amend 10 CFR 30.15 to add a 
specific exemption for tritium markers with a maximum activity of 25 
millicuries (925 mBq) of tritium.
Response to Petitioner's Request 3
    The NRC is choosing not to include a new specific exemption for 
these tritium markers at this time, consistent with the guiding 
principles within the CPPS. The exempt products in 10 CFR 30.15, such 
as timepiece hands or dials containing specified quantities of 
byproduct material including tritium, or marine compasses containing 
tritium, are designed for specific uses. As previously indicated, the 
Commission has stated that ``[s]elf-luminous products in particular 
have a wide range of potential applications and might easily be widely 
used for purposes other than those originally intended if not clearly 
designed for a specific use'' (79 FR 2910). Based on the small size 
(1.8 cm long by 0.8 cm diameter by 0.2 cm thick) and the design of the 
tritium markers, the tritium markers have potential uses beyond those 
intended by the petitioner, including as decorations on zipper pulls on 
clothing or as jewelry. The lack of a clear design for a specific use 
creates greater potential for unintended uses (such as the ones 
specifically excluded from the exemption in 10 CFR 30.19), which 
outweighs the product's beneficial uses. Because of the potential for 
widespread use, careful consideration of justification of practice is 
important.
    Also, the size and glow-in-the-dark nature of the tritium markers 
would appeal to and be accessible to children. Creating a new specific 
exemption for these tritium markers would be inconsistent with the 
CPPS, in particular, paragraph four (79 FR 2912), which requires that 
products subject to mishandling, especially by children, require an 
unusual degree of safety and utility. This criterion is unchanged from 
the original 1965 version of the policy. The tritium markers do not 
meet this criterion as they do not provide an unusual degree of 
utility. The unique benefits as compared to other alternatives are 
relatively limited. For example, the uses of the tritium markers 
asserted by the petitioner can be achieved by other products on the 
market, such as battery-powered products. While the use of tritium 
presents a particular benefit by staying illuminated continuously 
without having to be turned on when needed, the amount of light created 
using the 25 mCi of tritium suggested for the new exemption is limited. 
Also, self-luminous products containing tritium light sources 
incorporated into products with clear end uses can provide some of the 
same benefits.
    The petitioner stated that the tritium markers are sold in other 
countries. The discussion in the CPPS recognizes that it is unavoidable 
that there will be some differences made in judgments concerning 
justification of practice. Generally, international standards, such as 
the International Atomic Energy Agency's ``Radiation Protection and 
Safety of Radiation Sources: International Basic Safety Standards,'' 
suggest that this product should not be exempted. However, individual 
countries' regulatory bodies make their own judgments.

IV. Reasons for Denial

    The NRC is denying the petition because the petitioner fails to 
demonstrate that a specific exemption is warranted or that the existing 
regulatory framework for self-luminous products is inappropriate. The 
tritium markers do not meet the regulatory criteria for the use of 
self-luminous products under an exemption from licensing. In addition, 
the self-luminous product class exemption was set up to eliminate the 
need to evaluate numerous PRMs for a wide variety of self-luminous 
products and the need to conduct a separate rulemaking to add 
individual exemptions for each acceptable one. This provision is needed 
to ensure that the use of radioactive material in a product is 
justified.

V. Conclusion

    For the reasons cited in this document, the NRC is denying PRM-32-
8. The petition fails to present any significant new information or 
arguments that would warrant the requested amendments.

    Dated at Rockville, Maryland, this 22nd day of July, 2015.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2015-18630 Filed 7-29-15; 8:45 am]
 BILLING CODE 7590-01-P