Agreement State Program Policy Statement, 46840-46843 [2017-21542]

Agencies

• NUCLEAR REGULATORY COMMISSION

[Federal Register Volume 82, Number 193 (Friday, October 6, 2017)]
[Notices]
[Pages 46840-46843]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21542]


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NUCLEAR REGULATORY COMMISSION

[NRC-2016-0094]


Agreement State Program Policy Statement

AGENCY: Nuclear Regulatory Commission.

ACTION: Revision to policy statement.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) has revised and 
consolidated two policy statements on the NRC's Agreement State 
Programs: The ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' and the ``Statement of Principles and Policy 
for the Agreement

[[Page 46841]]

State Program.'' The resulting single policy statement has been revised 
to add that public health and safety includes physical protection of 
agreement material \1\ and to reflect comments received from Agreement 
States, individuals, and the Organization of Agreement States (OAS).
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    \1\ The term ``agreement material'' means the materials listed 
in Subsection 274b. of the Atomic Energy Act of 1954, as amended 
(AEA), over which the States may receive regulatory authority.

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DATES: This policy statement is effective on October 6, 2017.

ADDRESSES: Please refer to Docket ID NRC-2016-0094 when contacting the 
NRC about the availability of information regarding this document. You 
may obtain publicly-available information related to this document 
using any of the following methods:
     Federal Rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC-2016-0094. 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 in this document 
(if that document is available in ADAMS) is provided the first time 
that a document is referenced. The Agreement State Program Policy 
Statement, in its entirety, is in the attachment to this document.
     NRC's PDR: You may examine and purchase copies of public 
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 
Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT: Lance Rakovan, Office of Nuclear 
Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, 
Washington, DC 20555-0001; telephone: 301-415-2589, email: 
Lance.Rakovan@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Background

    The ``Policy Statement on Adequacy and Compatibility of Agreement 
State Programs'' (62 FR 46517; September 3, 1997) presented the NRC's 
policy for determining the adequacy and compatibility of Agreement 
State programs. The ``Statement of Principles and Policy for the 
Agreement State Program'' (62 FR 46517; September 3, 1997) described 
the respective roles and responsibilities of the NRC and the States in 
the administration of programs carried out under the 274b. State 
Agreement.\2\ The application of these two policy statements has 
significant influence on the safety and security of agreement material 
and on the regulation of the more than 20,000 Agreement State and NRC 
materials licensees, commonly referred to as National Materials Program 
(NMP) licensees.
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    \2\ Section 274 of the AEA provides a statutory basis under 
which the NRC discontinues portions of its regulatory authority to 
license and regulate byproduct materials; source materials; and 
quantities of special nuclear materials under critical mass. The 
mechanism for the transfer of the NRC's authority to a State is an 
agreement signed by the Governor of the State and the Chairman of 
the Commission, in accordance with Subsection 274b. of the AEA.
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    The NRC staff's current efforts to update the Agreement State 
policy statements began with the Commission's direction provided in the 
staff requirements memorandum (SRM) to SECY-10-0105, ``Final Rule: 
Limiting the Quantity of Byproduct Material in a Generally Licensed 
Device (RIN 3150-AI33),'' issued on December 2, 2010 (ADAMS Accession 
No. ML103360262). The Commission directed the NRC staff to update the 
Commission's ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' and associated guidance documents to include 
both safety and source security considerations in the compatibility 
determination process. Because Agreement State adequacy and 
compatibility are closely linked to the Integrated Materials 
Performance Evaluation Program (IMPEP),\3\ which is a key component of 
the Commission's ``Statement of Principles and Policy for the Agreement 
State Program,'' both policy statements were revised concurrently. Both 
policy statements were updated to add that public health and safety 
includes physical protection of agreement material. Two working groups, 
composed of NRC staff and Agreement State representatives, developed 
the revisions to the policy statements. The draft revisions to the two 
policy statements were provided to the Commission on August 14, 2012 
(SECY-12-0112, ``Policy Statements on Agreement State Programs'' (ADAMS 
Accession No. ML12110A183)).
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    \3\ The NRC, in cooperation with the Agreement States, developed 
the IMPEP to evaluate the adequacy and compatibility of Agreement 
State programs and the adequacy of the NRC's nuclear materials 
program activities.
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    The Commission approved publication of the draft revisions to the 
policy statements for public comment in the revised SRM to SECY-12-
0112, dated May 28, 2013 (ADAMS Accession No. ML13148A352). The NRC 
staff published the two proposed policy statements on June 3, 2013 (78 
FR 33122), for a 75-day comment period. After receiving requests from 
the Organization of Agreement States (OAS) and the State of Florida to 
extend the public comment period, the NRC extended the comment period 
to September 16, 2013 (78 FR 50118; August 16, 2013). The NRC held two 
public meetings (July 18 and August 6, 2013) and a topical session 
during the OAS annual meeting in Reno, Nevada, on August 28, 2013. The 
NRC staff specifically solicited comment on Compatibility Category B, 
and whether or not the policy statements should maintain the language 
from the 1997 ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' describing the adoption and number of 
compatible regulations.
    The NRC staff received 13 submissions from commenters including 
Agreement States, industry organizations, and individuals. These 
submissions contained 51 comments on the policy statements in general 
and 45 comments on Compatibility Category B. The need for consistent 
application and flexible implementation of the NRC's policies was the 
underlying theme expressed by the Agreement States in the written 
comments as well as during the public meetings and the OAS topical 
session. Some commenters provided general remarks and addressed 
specific sections of the policy statements. Some commenters also 
expressed concern that the inconsistent use of terms (e.g., material 
versus agreement material, enhanced security measures versus physical 
protection of agreement material, and relinquishing the NRC's authority 
versus discontinuing the authority) could cause confusion. Regarding 
Compatibility Category B, the comments show a wide variation on the 
interpretation of the definition of Compatibility Category B. The NRC 
staff considered the written comments, input from attendees at the two 
public meetings, and comments received at the OAS topical session and 
made modifications to the policy statements to ensure terms are used 
appropriately.

[[Page 46842]]

The NRC staff's disposition of these comments was presented in a 
comment resolution table (ADAMS Accession No. ML14073A549) associated 
with the June 3, 2013, Federal Register notice (78 FR 33122).
    In COMSECY-14-0028, ``Agreement State Program Policy Statements: 
Update on Recent Activities and Recommendations for Path Forward,'' 
dated July 14, 2014 (ADAMS Accession No. ML14156A277), the NRC staff 
proposed consolidating the two policy statements in a single policy 
statement. The Commission approved this plan in the SRM to COMSECY-14-
0028, dated August 12, 2014 (ADAMS Accession No. ML14224A618). 
Accordingly, the NRC staff developed a proposed single consolidated 
policy statement that: Identified and eliminated redundant language 
between the two policy statements, removed detailed information on 
IMPEP and the ``Principles of Good Regulation'' (ADAMS Accession No. 
ML15083A026), added context to make the proposed policy statement 
clearer and more consistent with other recent NRC policy statements, 
and added a description of the NMP.
    The Commission approved publication of the proposed consolidated 
Agreement State Program Policy Statement for public comment in the SRM 
to SECY-15-0087, dated March 22, 2016 (ADAMS Accession No. 
ML16082A514). The NRC staff published the proposed Agreement State 
Program Policy Statement on June 2, 2016 (81 FR 35388), for a 75-day 
public comment period. The NRC staff also held two public webinars 
during the comment period. The NRC staff received 31 comments from 
commenters including Agreement States and the OAS.
    The final policy statement is included in its entirety in the 
attachment to this document.

II. Overview of Public Comments

    The 31 comments received in response to the Federal Register notice 
of June 2, 2016 (81 FR 35388), were considered in developing the final 
policy statement along with 131 comments that were received from the 
Agreement States when the policy statements were consolidated. The 
comments generally fell within the following categories: The 
consolidation of two policy statements and NRC's unilateral decision to 
consolidate; the definition and description of adequacy and 
compatibility; the use of ``NRC'' and ``Commission;'' the use of the 
terms ``relinquish'' authority versus ``discontinue'' authority; the 
use of the terms ``shall,'' ``will,'' or ``must'' versus ``should;'' 
the addition of ``significant'' to ``cross jurisdictional;'' and 
deletion of the section on the Principles of Good Regulation. 
Commenters provided additional comments that did not fall within those 
categories as well as comments that were out of scope of the Agreement 
State Program Policy Statement. The NRC staff's disposition of the 162 
comments is presented in a comment resolution table (ADAMS Accession 
No. ML17044A406). The following sections summarize the comments 
organized in the categories previously noted, and include the NRC's 
response to the comments.

A. Consolidation of Two Policy Statements and the NRC's Unilateral 
Decision To Consolidate

    Comment: Some commenters opposed the consolidation of the two 
policy statements--the ``Policy Statement on Adequacy and Compatibility 
of Agreement State Programs'' and the ``Statement of Principles and 
Policy for the Agreement State Program''--into a single consolidated 
policy statement citing the following reasons: (1) The statements 
address unique topics (operational goals of a regulatory program vs. 
review of a regulatory program); (2) the splitting up and 
redistribution of the two policy statements' sections result in changes 
in the emphasis and relationship of both policy statements, both within 
each policy, and to each other; and (3) there are only five sentences 
that are common to both policy statements, which is not indicative of a 
great amount of redundancy. Multiple commenters believed that the NRC 
made a unilateral decision to combine the two policy statements into a 
single consolidated policy statement without input from the Agreement 
State working group members who worked on the individual policies. One 
commenter stated an expectation for the NRC to involve Agreement State 
working group members in all aspects of working group projects to 
ensure that documents adequately address issues of the Agreement States 
as well as the NRC. Four commenters stated that unilateral action by 
the NRC damages trust and the relationship between the NRC and the 
Agreement States. Three of the five commenters cited NRC Management 
Directive 5.3, ``Agreement State Participation in Working Groups'' 
(https://scp.nrc.gov/procedures.html) and noted that the combined 
policy was not cooperatively developed.
    Response: Two working groups composed of NRC (headquarters and 
regional) staff and Agreement State representatives developed revisions 
to these two policy statements. In COMSECY-14-0028, the NRC staff 
proposed a plan to consolidate the two policy statements into a single 
policy statement, while preserving the work already completed by the 
two working groups to update the separate policy statements. One of the 
factors leading to the recommendation for a single policy statement was 
the identification, by the NRC, of redundant language between the two 
policy statements. The Commission approved this plan in the SRM to 
COMSECY-14-0028. The NRC staff consolidated the two Agreement State 
Program policy statements into a single policy statement and removed 
the IMPEP and Principles of Good Regulation details and redundancies. 
In 2014, the NRC staff provided the draft consolidated policy statement 
to Agreement States. Some expressed dissatisfaction over not being more 
engaged in the decision and process used to propose consolidation of 
the policy statements. The content revisions that were developed by the 
two NRC/Agreement State working groups during their work on the two 
separate policy statements were considered during the development of 
the consolidated policy statement. Additionally, the final Agreement 
State Program Policy Statement reflects comments received from the 
Agreement States subsequent to the consolidation of the two policy 
statements.

B. Definition and Description of Adequacy and Compatibility

    Comment: Several commenters requested that adequacy and 
compatibility be better defined throughout the Agreement State Program 
Policy Statement and that a greater emphasis be placed on public health 
and safety.
    Response: Corresponding changes were implemented throughout the 
Agreement State Program Policy Statement, as appropriate, for 
consistency with the intent of the AEA. These include revisions in 
Section C., ``Statement of Legislative Intent,'' of the policy 
statement.

C. Use of ``NRC'' and ``Commission''

    Comment: Several commenters recommended replacing ``NRC'' with 
``Commission'' or vice versa in various sections throughout the policy 
statement.
    Response: The definition of ``Commission'' was added as a footnote 
in the policy statement to mean the five Commissioners, and the ``NRC'' 
indicates the U.S. Nuclear Regulatory Commission as an agency.

[[Page 46843]]

Corresponding changes were implemented throughout the Agreement State 
Program Policy Statement.

D. Use of the Terms ``relinquish'' Authority Versus ``discontinue'' 
Authority

    Comment: Several commenters stated the use of the word 
``relinquish''--in the context of the NRC's regulatory authority when 
entering into an agreement--is not accurate and recommended changing 
``relinquish'' to ``discontinue'' throughout the policy statement so 
the wording is consistent with Section 274b. of the AEA.
    Response: All instances of the word ``relinquish'' have either been 
deleted or replaced with the word ``discontinue'' throughout the 
Agreement State Program Policy Statement.

E. Use of the Terms ``shall,'' ``will,'' or ``must'' Versus ``should''

    Comment: Multiple commenters suggest that ``shall,'' ``will,'' or 
``must'' should replace ``should'' or vice versa in various sections 
throughout the Agreement State Program Policy Statement.
    Response: Corresponding changes were implemented throughout the 
Agreement State Program Policy Statement, as appropriate, for 
consistency with language used in Section 274b. of the AEA or other 
sections of the policy statement.

F. Add ``significant'' to ``cross jurisdictional''

    Comment: Several commenters suggest that the term ``significant'' 
should be added before ``cross jurisdictional'' for Compatibility 
Category B program elements.
    Response: The NRC/Agreement State working group for the revision of 
the ``Policy Statement on Adequacy and Compatibility of Agreement State 
Programs'' carefully considered the use of the term ``significant'' and 
concluded that the term was ambiguous and should not be included as 
part of the description of Compatibility Category B. The term ``cross 
jurisdictional program elements'' was chosen to make the description of 
Compatibility Category B concise and well-defined. No change was made 
to the Agreement State Program Policy Statement as a result of these 
comments.

G. Deletion of Principles of Good Regulation

    Comment: A number of commenters recommended the deletion of Section 
D.1.i, ``Principles of Good Regulation,'' of the policy statement.
    Response: The Principles of Good Regulation were initially adopted 
by the Commission in 1991 to serve as a guide to NRC decisionmaking and 
employee conduct. In 1997, they were included in the ``Policy Statement 
on Adequacy and Compatibility of Agreement State Programs'' and the 
``Statement of Principles and Policy for the Agreement State Program'' 
and were recognized as part of a common culture that the NRC and 
Agreement States share as co-regulators. These principles have served 
as a foundation for good regulation in the NMP and are included in the 
Agreement State Program Policy Statement to indicate their importance 
and that they should continue to form the basic building blocks for 
good regulation in the NMP into the future.
    No change was made to the Agreement State Program Policy Statement 
as a result of these comments.

H. Category Health and Safety

    Comment: A number of commenters noted that Category Health and 
Safety (H&S) was removed from the policy statement and recommended that 
Category H&S be included.
    Response: In the proposed policy statement, Category H&S was 
removed from Section E.2. ``Compatibility.'' This section of the policy 
describes the program elements required for compatibility. Program 
elements required for H&S are not required for compatibility. Section 
E.1. ``Adequacy'' of the proposed policy statement was made implicit 
for Category H&S by indicating that an adequate program includes those 
program elements necessary to maintain an acceptable level of 
protection of public health and safety. Because Category H&S is one of 
six categories (A, B, C, D, NRC, and H&S) that forms the basis for 
evaluating and classifying NRC program elements, a corresponding edit 
was implemented in Section E.1. ``Adequacy'' of the policy statement.

III. Procedural Requirements

Congressional Review Act Statement

    This final Agreement State Program Policy Statement is a rule as 
defined in the Congressional Review Act (5 U.S.C. 801-808). However, 
the Office of Management and Budget has not found it to be a major rule 
as defined in the Congressional Review Act.

Paperwork Reduction Act Statement

    This Policy Statement contains voluntary guidance for information 
collections subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.). These information collections are mandatory for states 
seeking to assume or maintain independent regulatory authority under 
Section 274 of the Atomic Energy Act of 1954, as amended. These 
information collections were approved by the Office of Management and 
Budget (OMB), under control number 3150-0183. The estimated annual 
burden for new Agreement State applications is 2,750 hours, to maintain 
Agreement State status is 7,600 hours, and to participate in IMPEP 
reviews is 36 hours. Send comments regarding this information 
collection to the Information Services Branch, U.S. Nuclear Regulatory 
Commission, Washington, DC 20555-0001, or by email to 
Infocollects.Resource@nrc.gov, and to the Desk Officer, Office of 
Information and Regulatory Affairs, NEOB-10202, (3150-0183) Office of 
Management and Budget, Washington, DC 20503.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless the document requesting 
or requiring the collection displays a currently valid OMB control 
number.

    Dated at Rockville, Maryland, this 2nd day of October 2017.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary for the Commission.
[FR Doc. 2017-21542 Filed 10-5-17; 8:45 am]
 BILLING CODE 7590-01-P