TN: DT-93-09

To: NRC Management Directives Custodians

Subject: Transmittal of Management Directive 5.1,

“Intergovernmental Consultation”

Purpose: Directive and Handbook 5.1 replace Manual Chapter and

Appendix 0401 and were revised to make changes to the

Objectives and Organizational Responsibilities and

Delegations of Authority sections as a result of a

reorganization and Commission direction. Changes were

also made that result in coordination with other program

offices in a more specific manner and as a result of new

policies approved by the Commission.

Office and 

Division of Origin: Office of State Programs

Contact: Mindy Landau, 415-8703

Date Approved: April 5, 1993

Volume: 5 Governmental Relations and Public Affairs

Directive: 5.1 Intergovernmental Consultation

Availability: Rules and Directives Branch

Office of Administration

Michael T. Lesar, (301) 415-7163

Christy Moore, (301) 415-7086

U.S. NUCLEAR REGULATORY COMMISSION

DIRECTIVE TRANSMITTAL

OFFICE OF ADMINISTRATION
Intergovernmental

Consultation

Directive

(Formerly

MC 0401) 5.1
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Directive 5.1

Approved: April 5, 1993 iii

Contents

Policy ................................................. 1

Objectives ............................................. 1

Organizational Responsibilities and

Delegations of Authority ............................ 2

The Commission ......................................... 2

Executive Director for Operations (EDO) ........................ 2

Director, Office of State Programs (OSP) ....................... 3

Office Directors and Regional Administrators ..................... 4

Applicability ........................................... 7

Employees ............................................. 7

Handbook .............................................. 7

References ............................................ 7
*Consultation with State officials and Federal agencies on individual licensing and enforcement

decisions is not included or covered by this directive.

**Reference throughout to “State” or “States” includes State and local governments and Indian

Tribes, and national and regional organizations of States, local governments, and Indian Tribes.

Approved: April 5, 1993 1

U. S. Nuclear Regulatory Commission

Volume: 5 Governmental Relations and Public Affairs OSP

Intergovernmental Consultation*

Directive 5.1

Policy

(5.1-01)

It is the policy of the U.S. Nuclear Regulatory Commission to

ensure appropriate consultation at the earliest possible stage

between NRC and States, local governments, other Federal

agencies, and Indian Tribe Organizations,** and their national and

regional associations regarding major interagency agreements,

major organizational changes, major rules and regulations,

statements of policy, guides, and standards, and major studies that

may have a significant State or local impact. Except where

indicated, all objectives apply to Agreement States as well as

non-Agreement States.

Objectives

(5.1-02)

• To ensure that major interagency agreements, major

organizational changes, major rules and regulations,

statements of policy, guides and standards, and major studies

developed by NRC that significantly impact the States

and Federal agencies are prepared with appropriate and
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Directive 5.1

2 Approved: April 5, 1993

Objectives

(5.1-02) (continued)

meaningful consultation with these entities and their national and

regional associations at the earliest possible stage. (021)

• To achieve a better understanding within NRC of the interests,

and the regional variations of the interests, of the States and of

the interests of relevant Federal agencies. (022)

• To achieve a better understanding on the part of States and

Federal agencies and their national and regional associations of

NRC's policies and procedures. (023)

• To ensure early and substantial involvement of the Agreement

States in rulemakings and other NRC regulatory efforts

(COMKC-91-007). (024)

• To identify and develop Commission policy to implement this

directive more effectively. (025)

Organizational Responsibilities and

Delegations of Authority

(5.1-03)

The Commission

(031)

Approves policy matters related to NRC's program of cooperation

with States.

Executive Director for Operations (EDO) 

(032)

Notifies State and local government associations and the Office of

Management and Budget (OMB) of the designation of the Director,

Office of State Programs, as the NRC official responsible for State

coordination.
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Directive 5.1

Approved: April 5, 1993 3

Organizational Responsibilities and

Delegations of Authority

(5.1-03) (continued)

Director, Office of State Programs (OSP) 

(033)

• Maintains a close working relationship with elected and

appointed officials so that the NRC can better understand State

and local interests and concerns and States can be informed of

NRC's activities and policies. (a)

• Coordinates any recommendations for proposed policies with

States at the Commission level, through the EDO, so that the

Commission may approve such policies. (b)

• Assists office directors in determining the appropriate means,

level, and timing of actions involving the States and their

associations. See Section (034)(b) of this directive. (c)

• Assists NRC offices with consultation and program development

and conducts liaison with the States and their national and

regional associations. See Section (034)(g) of this directive. (d)

• Distributes draft items according to the plan contained in

Section (034)(e) of this directive or arranges for final

distribution. See Section (034)(h) of this directive. (e)

• Plans, schedules, and sponsors workshops with State, local,

and Tribal officials on behalf of NRC, or assists other offices in

planning these activities. (f)

• Arranges meetings to resolve major differences when requested

by State officials or NRC program offices. (g)

• Coordinates liaison with other Federal agencies through the

Federal Liaison Program. (h)
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Directive 5.1

4 Approved: April 5, 1993

Organizational Responsibilities and

Delegations of Authority

(5.1-03) (continued)

Office Directors and

Regional Administrators

(034)

• Identify those activities within individual offices that may be of

significant interest to or that may impact any State. (a) 

• Review with the Director, OSP, the appropriate means, level,

and timing of involvement of the States and their associations.

Samples of activities that require consultation with a State or an

Indian Tribe, and therefore coordination by OSP, are—(b)

– Proposed rulemakings or policy issues in which States play

even a small role (i)

– Issues that require input from a State agency or the

Governor (ii)

– Issues that impact several States or Indian Tribes, including

but not limited to low-level waste, high-level waste,

transportation, emergency preparedness, and generic

reactor issues such as plant life extension, license renewal,

storage of spent fuel, and decommissioning. (iii)

• A number of alternative arrangements for consultation include

but are not limited to, the following: (c) 

– Letters to Governors or State agencies inviting comments

and expressions of interest. (i) 

– Invitations to States or their national or regional

organizations to establish committees to work with NRC on

a specific program. (ii) 
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Directive 5.1

Approved: April 5, 1993 5

Organizational Responsibilities and

Delegations of Authority

(5.1-03) (continued)

Office Directors and

Regional Administrators

(034) (continued)

– Workshops of State officials under NRC sponsorship. (iii) 

• Inform OSP Federal Liaison of consultation and coordination

activities with other Federal agencies on significant policy

issues, for example, when issues are elevated to senior levels

at other agencies, when NRC objectives cut across

organizational structures at other agencies, or when there is a

delay or impasse. (d)

• Inform OSP Federal Liaison, who serves as the NRC's National

Environmental Policy Act (NEPA) liaison with the Council on

Environmental Quality (CEQ), of NEPA interactions with the

CEQ. (e)

• Consult with OSP on the nature and significance of the items

and on the timing and scope of proposed distribution when this

review results in a plan to circulate items for comment to State

and local governments or their associations. In general, an

opportunity for early input is provided to all States to respond

to significant programs, plans for rulemaking, or specific

regulations. (f) 

• Issues or documents that should be coordinated with OSP by

copies of correspondence, concurrence, or verbal notice include

but are not limited to—(g)

– Information on State legislation or State legislative

hearings (i)
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Directive 5.1

6 Approved: April 5, 1993

Organizational Responsibilities and

Delegations of Authority

(5.1-03) (continued)

Office Directors and

Regional Administrators

(034) (continued)

– Any correspondence from State officials or members of

State agencies (ii)

– Meetings with State officials or State and Indian

organizations (iii)

• With regard to proposed regulations or supporting actions,

review with OSP a specific plan for consultation and solicitation

of comments from the States. This includes review by the

States of proposed programs, plans for rulemaking, proposed

regulations, and draft regulatory impact analyses before

publication of proposed rules in the Federal Register. If the

office declines to accept major changes in proposed

regulations suggested by the States, OSP will be notified in

writing. Promulgation of the proposed regulation may be

delayed briefly to allow for further discussion and, if necessary,

meetings between interested parties. This action must be

discretionary in cases involving individual States. (h) 

• When an item has been provided in draft for comment, consult

with OSP regarding distribution arrangements for the document

in its final form. (i) 

• As soon as feasible, notify OSP of issues that require

consultation with a State or coordination by OSP. (j)
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Directive 5.1

Approved: April 5, 1993 7

Applicability

(5.1-04)

Employees

(041)

This directive and handbook apply to and must be followed by all

NRC headquarters and regional employees who are responsible for

and participate in intergovernmental consultation.

Handbook

(5.1-05)

Handbook 5.1 contains some of the authorities that require NRC to

ensure appropriate consultation and coordination with States in the

implementation of its mission. 

References

(5.1-06)

Atomic Energy Act of 1954, as amended (42 U.S.C. 2011 et seq.).

Nuclear Waste Policy Act of 1982, as amended (Public Law

97-425).
Intergovernmental

Consultation

Handbook

(Formerly

Appendix 0401) 5.1
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Handbook 5.1

Approved: April 5, 1993 iii

Contents

Purpose of This Handbook ............................. 1

Exhibits

1 Section 274 of The Atomic Energy Act of 1954, as Amended

(Public Law 83-703) .................................. 2

2 Section 117(a) of The Nuclear Waste Policy Act of 1982, as Amended

(Public Law 97-425) .................................. 4
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Handbook 5.1

Approved: April 5, 1993 1

Purpose of This Handbook

This handbook contains examples of some of the authorities that

require the U.S. Nuclear Regulatory Commission to ensure

appropriate consultation and coordination with States in the

implementation of its mission. These examples are simply portions

of some of the authorities that exist; they are not all-inclusive.

Exhibit 1 - Exhibit 1 is an excerpt from the Atomic Energy Act of

1954, as amended, which sets forth NRC's program of cooperation

with States.

Exhibit 2 - Exhibit 2 is an excerpt from the Nuclear Waste Policy

Act of 1982, as amended, which sets forth the Federal

Government's policy for consultation with the States during the

process of siting a high-level waste repository in a State.
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Handbook 5.1 Exhibits

Exhibit 1

Section 274 of

The Atomic Energy Act of 1954, as Amended

(Public Law 83-703)

Cooperation

with States.

42 USC sec. 2021.

Agreements

with States.

"Sec. 274. Cooperation With States. 208 - "a. It is the purpose of this section-

"(1) to recognize the interests of the States in the peaceful uses of atomic energy, and to clarify the respective responsibilities under this Act of the States and the

Commission with respect to the regulation of byproduct, source, and special nuclear

materials;

"(2) to recognize the need, and establish programs for cooperation between the

States and the Commission with respect to control of radiation hazards associated

with use of such materials;

"(3) to promote an orderly regulatory pattern between the Commission and State

governments with respect to nuclear development and use and regulation of

byproduct, source, and special nuclear materials;

"(4) to establish procedures and criteria for discontinuance of certain of the Commission's regulatory responsibilities with respect to byproduct, source, and special nuclear materials, and the assumption thereof by the States; "(5) to provide for coordination of the development of radiation standards for the

guidance of Federal agencies and cooperation with the States; and

"(6) to recognize that, as the States improve their capabilities to regulate effectively such materials, additional legislation may be desirable.

"b. Except as provided in subsection c., the Commission is authorized

to enter into agreements with the Governor of any State providing for discontinuance of

the regulatory authority of the Commission under chapters 6, 7, and 8, and section 161 of

this Act, with respect to any one or more of the following materials within the State-

"(1) byproduct materials as defined in section lie. (1);209 "(2) byproduct materials as defined in section lie. (2);210

"(3) source materials;

"(4) special nuclear materials in quantities not sufficient to form a critical mass.

During the duration of such an agreement it is recognized that the State shall have

authority to regulate the materials covered by the agreement for the protection of the

public health and safety from radiation hazards.

"c. No agreement entered into pursuant to subsection b. shall provide for discontinuance of any authority and the Commission shall retain authority and responsibility with

respect to regulation of-

"(1) the construction and operation of any production or utilization facility; "(2) the export from or import into the United States of byproduct, source, or

special nuclear material, or of any production or utilization facility; "(3) the disposal into the ocean or sea of byproduct, source, or special nuclear waste

materials as defined in regulations or orders of the Commission;

"(4) the disposal of such other byproduct, source, or special nuclear material as the

Commission determines by regulation or order should, because of the hazards or

208Public Law 86-373 (73 Stat. 688) (1959), sec. 1, added sec. 274.

209PUblic Law 95-04 (92 Stat. 3036) (1978), se. 204(a), amended sec. 274(bXl) by adding as defined in section lie. (1)" afterthe

words 'byproduct materials. 2 10 PUbliCLaw95-604(92Stat. 3037)(1978), sec. 204(a),, rennmberedparagrapbs (2) and (3)asparagraphs (3) and (4), and added anew paragraph (2).

I

2 Approved: April 5, 1993
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Handbook 5.1 Exhibits

Exhibit 1 (continued)

42 USC 2014.

Conditions.

Licensing

requirements.

Exemptions.

potential hazards thereof, not be so disposed of without a license from the Commission. The Commission shall also retain authority under any such agreement to make

a determination that all applicable standards and requirements have been met prior

to termination of a license for byproduct material, as defined in section 1le. (2).211

Notwithstanding any agreement between the Commission and any State pursuant to

subsection b., the Commission is authorized by rule, regulation, or order to require that

the manufacturer, processor, or producer of any equipment, device, commodity, or

other product containing source, byproduct, or special nuclear material shall not

transfer possession or control of such product except pursuant to a license issued by the

Commission.

"d. The Commission shall enter into an agreement under subsection b. of this section

with any State if-

"(1) The Governor of that State certifies that the State has a program for the

control of radiation hazards adequate to protect the public health and safety with

respect to the materials within the State covered by the proposed agreement, and

that the State desires to assume regulatory responsibility for such materials; and

"(2) the Commission finds that the State program is in accordance with the requirements of subsection o. and in all other respects 212 compatible with the Commission's

program for regulation of such materials, and that the State program is adequate to

protect the public health and safety with respect to the materials covered by the

proposed agreement.

.* ..

"g. The Commission is authorized and directed to cooperate with the States in the

formulation of standards for protection against hazards of radiation to assure that

State and Commission programs for protection against hazards of radiation will be

coordinated and compatible.

* * .

Inspections. "i. The Commission in carrying out its licensing and regulatory responsibilities under

this Act is authorized to enter into agreements with any State, or group of States, to

perform inspections or other functions on a cooperative basis as the Commission deems

appropriate. The Commission is also authorized to provide training, with or without

charge, to employees of, and such other assistance to, any such State or political

subdivision thereof or group of States as the Commission deems appropriate. Any such

provision or assistance by the Commission shall take into account the additional

expenses that may be incurred by a State as a consequence of the State's entering into an

agreement with the Commission pursuant to subsection b.

2 1

1 public Law 95-604 (92 Stat. 3038) (1978). sec. 204(0), added a new sentence after paragraph (4).

2 1 2

pUbli ILaw95-04 (92 Sta. 3037)(1978), sec. 904(b), amended sec. 274(dX2) by insertingthewords 'in accordancewith the requirements of subsection o, and in al other respects" before the word "compatible".

Approved: April 5, 1993 3
Volume 5, Governmental Relations and Public Affairs

Intergovernmental Consultation

Handbook 5.1 Exhibits

Exhibit 2

Section 117(a) of

The Nuclear Waste Policy Act of 1982, as Amended

(Public Law 97-425)

42 UsC 10137.

CONSULTATION WITH STATES AND AFFECTED INDIAN TRIBES

Sec. 117. (a) Provision Of Information.-(1) The Secretary, the Commission, and other

agencies involved in the construction, operation, or regulation of any aspect of a repository in

a State shall provide to the Governor and legislature of such State, and to the governing body of any affected Indian tribe, timely and complete information regarding determinations or

plans made with respect to the site characterization siting, development, design, licensing, construction, operation, regulation, or decommissioning of such repository.

4 4Approved: April 5, 1993