October 14, 2004

Mr. Jay Hyland, P.E., Manager

Radiation Control Program

Division of Health Engineering

10 State House Station

Augusta, ME 04333

Dear Mr. Hyland

We have reviewed your request, dated May 15, 2003, to review the compatibility category for

10 CFR 31.5(c)(13), and 10 CFR 31.6. We have determined that the NRC compatibility levels

associated with the General Licensed (GL) device rule, RATS ID # 2001-1, are appropriate and

reflect the Commission’s views in regards to the amended sections. Therefore, the enclosed

comments, stemming from the NRC review of the Maine GL rule, will need to be addressed for

the Maine rules to be compatible with NRC’s requirements. 

Specifically, three questions related to the registration and service of sources were considered. 

First, regarding reciprocity and the 180 day limit for non registration of GL devices used within

an Agreement State, the question considered was “Can the States require a registration or

notification of entry of GL devices, for general knowledge of activities within a State, or to

assess a fee for GL users in their State?” Section § 31.5(c)(13)(iv) exempts GL devices used

for a period of less than 180 days from registration requirements. Based on the fact that

§31.5(c)(13) is classified as Compatibility Category B, a State cannot require registration or

notification of GL devices used within the State for a period of less than 180 days in any

calendar year. If a State required the registration of GL devices used in the State less than 180

days, then the State’s regulation would require more than the NRC’s regulation, which the

classification of Compatibility Category B prohibits. Furthermore, all of the Commissioners were

in agreement that the registration requirements of §31.5(c)(13)(iv) have significant

transboundary implications that necessitated a classification of Compatibility Category B. The

State’s reasoning for requiring registration or notification, such as having general knowledge of

activities within the State or for accessing fees, does not expunge the transboundary

implications the Commission found associated with §31.5(c)(13). Therefore, only if the GL

devices are used in the State for more than 180 days can the State require their registration. 

Second, “Can the States require registration of smaller quantities and for radioisotopes other

than those established in 31.5(c)(13)(i)?”. Section §31.5(c)(13)(i) establishes the quantities of

certain radioisotopes for which registration and a fee is required because §31.5(c)(13)(i) is

classified as Compatibility Category B, States are prohibited from requiring the registration of

smaller quantities, or for other radioisotopes than those established in §31.5(c)(13)(i). If States

were allowed to augment the requirements in §31.5(c)(13)(i), the States would be requiring

more than the NRC and transboundary implications would exist. 
Mr. Jay Hyland -2- October 14, 2004

Third, related to §31.6 and the requirement for notification and registration when installing and

servicing devices in an Agreement State, the question considered was “Does the GL license to

install and service in 31.6, preclude the State from requiring the service licensee to provide

notification or registration or payment of fees to an Agreement State when doing work in that

State?” Section §31.6 states that “any person who holds a specific license issued by an

Agreement State . . . is hereby granted a general license . . . in any non-Agreement state. . . .”. 

In May 15, 2000, when the Commission decided to change the compatibility classification of

§31.5 from Compatibility Category C to B, the Commission explicitly left §31.5(c)(13) and 31.6

as Compatibility Category C. The Commission explained that by keeping §31.6 as

Compatibility Category C, “it . . . continues the flexibility for Agreement States to require

prenotification for servicers licensed in different jurisdictions.” Because the Commission

originally contemplated keeping §31.6 as Compatibility Category C, in order to give the States

the flexibility to require notification, the Commission’s silence, as to notification when it later

reclassified § 31.6 as Compatibility Category B in June 2000, indicates that the States are not

permitted to require notification from service licensees. Therefore, if States required

notification, they would be requiring more than the NRC, which is not permitted for Compatibility

Category B regulations, and transboundary issues that the Commission associated with §31.6

may arise.

Consistant with the discussion above, there are two remaining comments resulting from our

April 4, 2003 review of Maine’s GL device rules. Please provide a final, amended version of

your rules showing the location of any changes made in response to our comments. If there

are any comments which the State believes are in error, Maine should identify the section of

their regulations that meet the designated compatibility category. 

If you have any questions regarding the comments, the compatibility and health and safety

categories, or any of the NRC regulations used in the review, please contact me, or John Zabko

(301) 415-2308 or JGZ@NRC.GOV.

Sincerely,

\RA By Josephine M. Piccone\

Josephine M. Piccone, Deputy Director

Office of State and Tribal Programs

Enclosure: 

As stated

cc: William A. Passetti, Chief
COMMENTS ON MAINE REGULATIONS AGAINST 

COMPATIBILITY AND HEALTH AND SAFETY CATEGORIES

State

Regulation

 

NRC

Regulation

RATS 

 ID 

 

Category Subject and Comments

C.6.B 31.5

(c)(13)(iv)

2001-1 B Certain detecting, measuring gauging or

controlling devices.

The State requires all devices to be registered

when the device enters into Maine under

reciprocity regardless of the number of days. 

This rule is more restrictive than 10 CFR 31.5

(c) (13) (iv)

The State needs to incorporate 31.5(c)(13) (iv)

as written to allow for 180 days of reciprocity to

achieve compatibility.

C.6.B 31.5 (c) (13)

(i)

2001-1 B Certain detecting, measuring gauging or

controlling devices.

The State requires all devices used in Maine to

be registered regardless of source type and

quantity. This rule is more restrictive than

10CFR 31.5 (c) (13) (i).

The State needs to incorporate the essential

objectives of 31.5(c)(13) (i) to only include the

stated source types and quantities of material,

to achieve compatibility.
Mr. Jay Hyland -2- October 14, 2004

Third, related to §31.6 and the requirement for notification and registration when installing and

servicing devices in an Agreement State, the question considered was “Does the GL license to

install and service in 31.6, preclude the State from requiring the service licensee to provide

notification or registration or payment of fees to an Agreement State when doing work in that

State?” Section §31.6 states that “any person who holds a specific license issued by an

Agreement State . . . is hereby granted a general license . . . in any non-Agreement state. . . .”. 

In May 15, 2000, when the Commission decided to change the compatibility classification of

§31.5 from Compatibility Category C to B, the Commission explicitly left §31.5(c)(13) and 31.6

as Compatibility Category C. The Commission explained that by keeping §31.6 as

Compatibility Category C, “it . . . continues the flexibility for Agreement States to require

prenotification for servicers licensed in different jurisdictions.” Because the Commission

originally contemplated keeping §31.6 as Compatibility Category C, in order to give the States

the flexibility to require notification, the Commission’s silence, as to notification when it later

reclassified § 31.6 as Compatibility Category B in June 2000, indicates that the States are not

permitted to require notification from service licensees. Therefore, if States required

notification, they would be requiring more than the NRC, which is not permitted for Compatibility

Category B regulations, and transboundary issues that the Commission associated with §31.6

may arise.

Consistent with the discussion above, there are two remaining comments resulting from our

April 4, 2003 review of Maine’s GL device rules. Please provide a final, amended version of

your rules showing the location of any changes made in response to our comments. If there

are any comments which the State believes are in error, Maine should identify the section of

their regulations that meet the designated compatibility category. 

If you have any questions regarding the comments, the compatibility and health and safety

categories, or any of the NRC regulations used in the review, please contact me, or John Zabko

(301) 415-2308 or JGZ@NRC.GOV.

Sincerely,

\RA By Josephine M. Piccone\

Josephine M. Piccone, Deputy Director

Office of State and Tribal Programs

Enclosure: As stated

cc: William A. Passetti, Chief

Distribution:

DIR RF (4-177 ) DCD (SP05) PDR (YES_T) BUsilton ASPO Maine File

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