July 28, 2008 

Kirksey Whatley, Director 

Office of Radiation Control 

State Department of Public Health 

201 Monroe Street 

P.O. Box 303017 

Montgomery, AL 36130-3017 

Dear Mr. Whatley: 

We have received Mr. Walter’s July 11, 2008 letter requesting a legal interpretation that 

specifies what essential objectives of 10 CFR 30.34(i) are not met by Alabama’s license 

condition for security requirements for portable gauges. The text of NRC’s regulation and your 

license condition are as follows: 

NRC 10 CFR 30.34(i): 

Each portable gauge licensee shall use a minimum of two independent physical controls 

that form tangible barriers to secure portable gauges from unauthorized removal, 

whenever portable gauges are not under the control and constant surveillance of the 

licensee. 

Alabama’s license condition: 

The licensee shall assure that all portable devices containing radioactive material shall 

be supplied with two (2) independent physical controls (not including any lock on the 

device or the carrying case containing the device) while the device is in storage or transit, 

and when an authorized user is not physically present. The controls shall be designed to 

limit public access to the device or the carrying case containing the device. 

Alabama’s license condition does not meet NRC’s essential objectives in two areas. The phrase 

“when an authorized user is not physically present” does not meet the essential objectives of 

“not under the control and constant surveillance of the licensee.” The Statement of 

Consideration for the proposed 10 CFR 30.34 (i) discussed the meaning of constant control and 

surveillance (68 FR 45175, as adopted as a final rule without changes, 70 FR 2001): 

“The NRC staff interprets ‘control and maintain constant surveillance’ of portable gauges 

to mean being immediately present or remaining in close proximity to the portable gauge 

so as to be able to prevent the unauthorized removal of the gauge.” 

Based on this statement, we believe that the two essential objectives necessary to establish 

control and constant surveillance are: 

(1) Physical presence (“being immediately present or in close proximity”); and 

(2) being “able to prevent the unauthorized removal of the gauge.” 
K. Whatley - 2 -

The last sentence of your license condition requires that the controls be designed to limit public 

access to the device and carrying case. NRC’s regulation does not address the design, but 

limiting public access is less restrictive than preventing the unauthorized removal of the gauge. 

If the Alabama license condition is revised as follows, it will incorporate the essential objectives 

of 10 CFR 30.34(i), and will meet the Compatibility Category C designation assigned to this 

provision: 

The licensee shall assure that all portable devices containing radioactive material shall 

be supplied with two (2) independent physical controls (not including any lock on the 

device or the carrying case containing the device) while the device is in storage or transit, 

and when an authorized user is not physically present to prevent the unauthorized 

removal of the portable device. The controls shall be designed to secure portable 

devices from unauthorized removal. limit public access to the device or the carrying 

case containing the device. 

If you have any questions regarding the analysis, please contact Kathleen Schneider, State 

Regulation Review Coordinator at (301) 415-2320 (email: kathleen.schneider@nrc.gov.) 

Sincerely, 

/RA/ 

James G. Luehman, Deputy Director 

Division of Materials Safety and State Agreements 

Office of Federal and State Materials and 

Environmental Management Programs 

Enclosures: As stated 
K. Whatley - 3 -

The last sentence of your license condition requires that the controls be designed to limit public 

access to the device and carrying case. NRC’s regulation does not address the design, but 

limiting public access is less restrictive than preventing the unauthorized removal of the gauge. 

If the Alabama license condition was revised as follows, we believe that the license condition 

would incorporate the essential objectives of 10 CFR 30.34(i) in order to meet the Compatibility 

Category C designation assigned to this provision: 

The licensee shall assure that all portable devices containing radioactive material shall 

be supplied with two (2) independent physical controls (not including any lock on the 

device or the carrying case containing the device) while the device is in storage or transit, 

and when an authorized user is not physically present to prevent the unauthorized 

removal of the portable device. The controls shall be designed to secure portable 

devices from unauthorized removal. limit public access to the device or the carrying 

case containing the device. 

If you have any questions regarding the analysis, please contact Kathleen Schneider, State 

Regulation Review Coordinator at (301) 415-2320 (email: kathleen.schneider@nrc.gov.) 

Sincerely, 

James G. Luehman, Deputy Director 

Division of Materials Safety and State Agreements 

Office of Federal and State Materials and 

Environmental Management Programs 

Enclosures: As stated 

Distribution: 

DIR RF (8-69) SUNSI Review Complete 

DCD (SP06) : Publicly Available G Non-Publicly Available 

JKottan RSAO : Non-Sensitive G Sensitive 

MOrendi [AL] File 

DOCUMENT NAME: G:\DMSSA\SAISB\REGULATION TOOLBOX\STATES\ALABAMA\8-69\8-69.DOC 

ML of Incoming Document: ML081960176 

To receive a copy of this document, indicate in the box: "C" = Copy without attachment/enclosure "E" = Copy with attachment/enclosure 

 "N" = No copy 

OFFICE SAISB OGC SAIS:BC MSSA:DD 

NAME KSchneider:km BJones DWhite JLuehman 

DATE 7/16/08 07/21/08 07/28/08 07/28/08 

ML082100083 OFFICIAL RECORD COPY