[Federal Register Volume 70, Number 225 (Wednesday, November 23, 2005)]
[Notices]
[Pages 70894-70897]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22581]



[[Page 70894]]

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NUCLEAR REGULATORY COMMISSION


State of Minnesota: NRC Draft Staff Assessment of a Proposed 
Agreement Between the Nuclear Regulatory Commission and the State of 
Minnesota

AGENCY: Nuclear Regulatory Commission.

ACTION: Notice of a Proposed Agreement with the State of Minnesota.

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SUMMARY: By letter dated July 6, 2004, Governor Tim Pawlenty of 
Minnesota requested that the U. S. Nuclear Regulatory Commission (NRC) 
enter into an Agreement with the State as authorized by section 274 of 
the Atomic Energy Act of 1954, as amended (Act).
    Under the proposed Agreement, the Commission would discontinue, and 
Minnesota would assume, portions of the Commission's regulatory 
authority exercised within the State. As required by the Act, NRC is 
publishing the proposed Agreement for public comment. NRC is also 
publishing the summary of a Draft Staff Assessment of the Minnesota 
Program. Comments are requested on the proposed Agreement and the NRC 
Draft Staff Assessment which finds the Program adequate to protect 
public health and safety and compatible with NRC's program for 
regulation of agreement material.
    The proposed Agreement would release (exempt) persons who possess 
or use certain radioactive materials in Minnesota from portions of the 
Commission's regulatory authority. The Act requires that NRC publish 
those exemptions. Notice is hereby given that the pertinent exemptions 
have been previously published in the Federal Register and are codified 
in the Commission's regulations as 10 CFR part 150.

DATES: The comment period expires December 9, 2005. Comments received 
after this date will be considered if it is practical to do so, but the 
Commission cannot assure consideration of comments received after the 
expiration date.

ADDRESSES: Written comments may be submitted to Mr. Michael T. Lesar, 
Chief, Rules and Directives Branch, Division of Administrative 
Services, Office of Administration, Washington, DC 20555-0001. Comments 
may be submitted electronically at <a href="/cdn-cgi/l/email-protection#523c2031203722123c20317c353d24"><span class="__cf_email__" data-cfemail="e9879b8a9b8c99a9879b8ac78e869f">[email protected]</span></a>.
    The NRC maintains an Agencywide Documents Access and Management 
System (ADAMS), which provides text and image files of NRC's public 
documents. The documents may be accessed through the NRC's Public 
Electronic Reading Room on the Internet at http://www.nrc.gov/reading-rm/adams.html. If you do not have access to ADAMS or if there are 
problems in accessing the documents located in ADAMS, contact the NRC 
Public Document Room (PDR) reference staff at (800) 397-4209, or (301) 
415-4737, or by e-mail to <a href="/cdn-cgi/l/email-protection#23534751634d51400d444c55"><span class="__cf_email__" data-cfemail="78081c0a38160a1b561f170e">[email protected]</span></a>.
    Copies of comments received by NRC may be examined at the NRC 
Public Document Room, 11555 Rockville Pike, Public File Area O-1-F21, 
Rockville, Maryland. Copies of the request for an Agreement by the 
Governor of Minnesota including all information and documentation 
submitted in support of the request, and copies of the full text of the 
NRC Draft Staff Assessment are also available for public inspection in 
the NRC's Public Document Room--ADAMS Accession Numbers: ML041960496, 
ML041960499, ML052440344, ML050130375, ML050140452, ML051330043, 
ML051740384, ML051650073, ML052200424, and ML053060372.

FOR FURTHER INFORMATION CONTACT: Cardelia Maupin, Office of State and 
Tribal Programs, U.S. Nuclear Regulatory Commission, Washington, DC 
20555-0001. Telephone (301) 415-3340 or e-mail <a href="/cdn-cgi/l/email-protection#43000b0e72032d31206d242c35"><span class="__cf_email__" data-cfemail="0e4d46433f4e607c6d20696178">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: Since section 274 of the Act was added in 
1959, the Commission has entered into Agreements with 33 States. The 
Agreement States currently regulate approximately 17,200 agreement 
material licenses, while NRC regulates approximately 4,700 licenses. 
Under the proposed Agreement, approximately 167 NRC licenses will 
transfer to Minnesota. NRC periodically reviews the performance of the 
Agreement States to assure compliance with the provisions of section 
274.
    Section 274e requires that the terms of the proposed Agreement be 
published in the Federal Register for public comment once each week for 
four consecutive weeks. This Notice is being published in fulfillment 
of the requirement.

I. Background

    (a) Section 274d of the Act provides the mechanism for a State to 
assume regulatory authority, from the NRC, over certain radioactive 
materials \1\ and activities that involve use of the materials.
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    \1\ The radioactive materials are: (a) Byproduct materials as 
defined in section 11e.(1) of the Act; (b) byproduct materials as 
defined in section 11e.(2) of the Act; (c) source materials as 
defined in section 11z. of the Act; and (d) special nuclear 
materials as defined in section 11aa. of the Act, restricted to 
quantities not sufficient to form a critical mass.
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    In a letter dated July 6, 2004, Governor Pawlenty certified that 
the State of Minnesota has a program for the control of radiation 
hazards that is adequate to protect public health and safety within 
Minnesota for the materials and activities specified in the proposed 
Agreement, and that the State desires to assume regulatory 
responsibility for these materials and activities. Included with the 
letter was the text of the proposed Agreement, which is shown in 
Appendix A to this Notice.
    The radioactive materials and activities (which together are 
usually referred to as the ``categories of materials'') which the State 
of Minnesota requests authority over are: (1) The possession and use of 
byproduct materials as defined in section 11e.(1) of the Act; (2) the 
possession and use of source materials; and (3) the possession and use 
of special nuclear materials in quantities not sufficient to form a 
critical mass, as provided for in regulations or orders of the 
Commission.
    (b) The proposed Agreement contains articles that:

--Specify the materials and activities over which NRC's authority is 
discontinued and transferred;
--Specify the activities over which the Commission will retain 
regulatory authority;
--Continue the authority of the Commission to safeguard nuclear 
materials and restricted data;
--Commit the State of Minnesota and NRC to exchange information as 
necessary to maintain coordinated and compatible programs;
--Provide for the reciprocal recognition of licenses;
--Provide for the amendment, suspension or termination of the 
Agreement; and
--Specify the effective date of the proposed Agreement.

    The Commission reserves the option to modify the terms of the 
proposed Agreement in response to comments, to correct errors, and to 
make editorial changes. The final text of the Agreement, with the 
effective date, will be published after the Agreement is approved by 
the Commission, and signed by the Chairman of the Commission and the 
Governor of Minnesota.
    (c) Minnesota currently registers users of naturally-occurring and 
accelerator-produced radioactive materials. Authority for Minnesota's 
radiation control unit and proposed Agreement State activities is 
primarily found in

[[Page 70895]]

Minnesota Statutes, sections 144.12-144.121, and in the Minnesota Rules 
Chapter 4731. Section 144.1202 provides the authority for the Governor 
to enter into an Agreement with the Commission and contains provisions 
for the orderly transfer of regulatory authority over affected 
licensees from NRC to the State. After the effective date of the 
Agreement, licenses issued by NRC would continue in effect as Minnesota 
licenses until the licenses expire or are replaced by State-issued 
licenses.
    (d) The NRC Draft Staff Assessment finds that the Minnesota Program 
is adequate to protect public health and safety, and is compatible with 
the NRC program for the regulation of agreement materials.

II. Summary of the NRC Draft Staff Assessment of the Minnesota Program 
for the Control of Agreement Materials

    NRC staff has examined the Minnesota request for an Agreement with 
respect to the ability of the Minnesota radiation control program to 
regulate agreement materials. The examination was based on the 
Commission's policy statement ``Criteria for Guidance of States and NRC 
in Discontinuance of NRC Regulatory Authority and Assumption Thereof by 
States Through Agreement'' (referred to herein as the ``NRC 
criteria''), published on January 23, 1981 (46 FR 7540), as amended by 
policy statements published on July 16, 1981 (46 FR 36969), and on July 
21, 1983 (48 FR 33376).
    (a) Organization and Personnel. The agreement materials program 
will be located within the existing Environmental Health Division 
(Program) of the Minnesota Department of Health (MDH). The Program will 
be responsible for implementation of all regulatory activities related 
to the proposed Agreement.
    The educational requirements for the Program staff members are 
specified in the Minnesota State personnel position descriptions, and 
meet the NRC criteria with respect to formal education or combined 
education and experience requirements. All current staff members hold 
at least bachelor's degrees in physical or life sciences, or have a 
combination of education and experience at least equivalent to a 
bachelor's degree. Several staff members hold advanced degrees, and all 
staff members have had additional training plus working experience in 
radiation protection. The Program supervisor has more than 20 years 
work experience in radiation protection.
    The Program performed, and NRC staff reviewed, an analysis of the 
expected Program workload under the proposed Agreement. Based on the 
NRC staff review of the State's staff analysis, Minnesota has an 
adequate number of staff to regulate radioactive materials under the 
terms of the Agreement. The Program will employ a staff of 3.5 full-
time professional/technical and administrative employees for the 
agreement materials program. The distribution of the qualifications of 
the individual staff members will be balanced to the distribution of 
categories of licensees transferred from NRC.
    (b) Legislation and Regulations. The MDH is designated by law in 
section 144.1202 of the Minnesota Statutes to be the radiation control 
agency. The law provides the MDH the authority to issue licenses, issue 
orders, conduct inspections, and to enforce compliance with 
regulations, license conditions, and orders. Licensees are required to 
provide access to inspectors. The MDH is authorized to promulgate 
regulations.
    The State's regulations are found in Minnesota Rules Chapter 4731 
effective June 2004. The NRC staff reviewed and forwarded comments on 
these regulations to the Minnesota staff. The NRC staff review verified 
that, with the comments incorporated, the Minnesota rules, and with the 
addition of legally binding requirements to incorporate recent changes 
to 10 CFR part 35 and 71 contain all of the provisions that are 
necessary in order to be compatible with the regulations of the NRC on 
the effective date of the Agreement between the State and the 
Commission. The MDH has extended the effect of the rules, where 
appropriate, to apply to naturally-occurring or accelerator-produced 
radioactive materials (NARM), in addition to agreement materials. The 
NRC staff is satisfied that the Minnesota Program, will not regulate in 
areas reserved to the NRC in matters concerning or affecting the 
proposed Agreement.
    (c) Storage and Disposal. Minnesota has also adopted NRC compatible 
requirements for the handling and storage of radioactive material. 
Minnesota will not seek authority to regulate the land disposal of 
radioactive material as waste. The Minnesota waste disposal 
requirements cover the preparation, classification and manifesting of 
radioactive waste, generated by Minnesota licensees, for transfer for 
disposal to an authorized waste disposal site or broker.
    (d) Transportation of Radioactive Material. Minnesota has adopted 
regulations compatible with NRC regulations in 10 CFR part 71. Part 71 
contains the requirements that licensees must follow when preparing 
packages containing radioactive material for transport. Part 71 also 
contains requirements related to the licensing of packaging for use in 
transporting radioactive materials.
    (e) Recordkeeping and Incident Reporting. Minnesota has adopted the 
sections compatible with the NRC regulations which specify requirements 
for licensees to keep records, and to report incidents, accidents, or 
events involving materials.
    (f) Evaluation of License Applications. Minnesota has adopted 
regulations compatible with the NRC regulations that specify the 
requirements which a person must meet in order to get a license to 
possess or use radioactive materials. Minnesota has also developed a 
licensing procedures manual, along with the accompanying regulatory 
guides, which are adapted from similar NRC documents and contain 
guidance for the Program staff when evaluating license applications.
    (g) Inspections and Enforcement. The Minnesota radiation control 
program has adopted a schedule providing for the inspection of 
licensees as frequently as the inspection schedule used by NRC. The 
Program has adopted procedures for the conduct of inspections, the 
reporting of inspection findings, and the reporting of inspection 
results to the licensees. The Program has also adopted, by rule based 
on the Minnesota Statutes, procedures for the enforcement of regulatory 
requirements.
    (h) Regulatory Administration. The MDH is bound by requirements 
specified in State law for rulemaking, issuing licenses, and taking 
enforcement actions. The Program has also adopted administrative 
procedures to assure fair and impartial treatment of license 
applicants. Minnesota law prescribes standards of ethical conduct for 
State employees.
    (i) Cooperation with Other Agencies. Minnesota law deems the holder 
of an NRC license on the effective date of the proposed Agreement to 
possess a like license issued by Minnesota. The law provides that these 
former NRC licenses will expire on the date of expiration specified in 
the NRC license.
    Minnesota also provides for ``timely renewal.'' This provision 
affords the continuance of licenses for which an application for 
renewal has been filed more than 30 days prior to the date of 
expiration of the license. NRC licenses transferred while in timely 
renewal are included under the continuation provision. Minnesota Rules 
Chapter 4731 provides exemptions from the

[[Page 70896]]

State's requirements for licensing of sources of radiation for NRC and 
U.S. Department of Energy contractors or subcontractors. The proposed 
Agreement commits Minnesota to use its best efforts to cooperate with 
the NRC and the other Agreement States in the formulation of standards 
and regulatory programs for the protection against hazards of radiation 
and to assure that the Minnesota Program will continue to be compatible 
with the NRC's program for the regulation of agreement materials. The 
proposed Agreement stipulates the desirability of reciprocal 
recognition of licenses, and commits the Commission and Minnesota to 
use their best efforts to accord such reciprocity.

III. Staff Conclusion

    Subsection 274d of the Act provides that the Commission shall enter 
into an agreement under subsection 274b with any State if:
    (a) The Governor of the State certifies that the State has a 
program for the control of radiation hazards adequate to protect public 
health and safety with respect to the agreement materials within the 
State, and that the State desires to assume regulatory responsibility 
for the agreement materials; and
    (b) The Commission finds that the State program is in accordance 
with the requirements of subsection 274o, and in all other respects 
compatible with the NRC's program for the regulation of materials, and 
that the State program is adequate to protect public health and safety 
with respect to the materials covered by the proposed Agreement.
    On the basis of its Draft Staff Assessment, the NRC staff concludes 
that the State of Minnesota meets the requirements of the Act. The 
State's program, as defined by its statutes, regulations, personnel, 
licensing, inspection, and administrative procedures, is compatible 
with the program of the NRC and adequate to protect public health and 
safety with respect to the materials covered by the proposed Agreement.
    NRC will continue the formal processing of the proposed Agreement 
which includes publication of this Notice once a week for four 
consecutive weeks for public review and comment.

    Dated at Rockville, Maryland, this 7th day of November, 2005.

    For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.

Appendix A--An Agreement Between the United States Nuclear Regulatory 
Commission and the State of Minnesota for the Discontinuance of Certain 
Commission Regulatory Authority and Responsibility within the State 
Pursuant to Section 274 of the Atomic Energy Act of 1954, as Amended

    Whereas, The United States Nuclear Regulatory Commission 
(hereinafter referred to as the Commission) is authorized under 
section 274 of the Atomic Energy Act of 1954, as amended 
(hereinafter referred to as the Act), to enter into agreements with 
the Governor of any State providing for discontinuance of the 
regulatory authority of the Commission within the State under 
Chapters 6, 7, and 8, and section 161 of the Act with respect to 
byproduct materials as defined in sections 11e.(1) and (2) of the 
Act, source materials, and special nuclear materials in quantities 
not sufficient to form a critical mass; and,
    Whereas, The Governor of the State of Minnesota is authorized 
under Sec.  144.1202, Subdivision 1, Minnesota Statutes, to enter 
into this Agreement with the Commission; and,
    Whereas, The Governor of the State of Minnesota certified on 
July 6, 2004, that the State of Minnesota (hereinafter referred to 
as the State) has a program for the control of radiation hazards 
adequate to protect public health and safety with respect to the 
materials within the State covered by this Agreement, and that the 
State desires to assume regulatory responsibility for such 
materials; and,
    Whereas, The Commission found on [date] that the program of the 
State for the regulation of the materials covered by this Agreement 
is compatible with the Commission's program for the regulation of 
such materials and is adequate to protect public health and safety; 
and,
    Whereas, The State and the Commission recognize the desirability 
and importance of cooperation between the Commission and the State 
in the formulation of standards for protection against hazards of 
radiation and in assuring that State and Commission programs for 
protection against hazards of radiation will be coordinated and 
compatible; and,
    Whereas, The Commission and the State recognize the desirability 
of the reciprocal recognition of licenses, and of the granting of 
limited exemptions from licensing of those materials subject to this 
Agreement; and,
    Whereas, This Agreement is entered into pursuant to the 
provisions of the Atomic Energy Act of 1954, as amended;
    Now, therefore, It is hereby agreed between the Commission and 
the Governor of the State acting in behalf of the State as follows:

Article I

    Subject to the exceptions provided in Articles II, IV, and V, 
the Commission shall discontinue, as of the effective date of this 
Agreement, the regulatory authority of the Commission in the State 
under Chapters 6, 7, and 8, and section 161 of the Act with respect 
to the following materials:
    A. Byproduct materials as defined in section 11e.(1) of the Act;
    B. Source materials;
    C. Special nuclear materials in quantities not sufficient to 
form a critical mass.

Article II

    This Agreement does not provide for discontinuance of any 
authority and the Commission shall retain authority and 
responsibility with respect to:
    A. The regulation of the construction and operation of any 
production or utilization facility or any uranium enrichment 
facility;
    B. The regulation of the export from or import into the United 
States of byproduct, source, or special nuclear materials, or of any 
production or utilization facility;
    C. The regulation of the disposal into the ocean or sea of 
byproduct, source, or special nuclear materials waste as defined in 
the regulations or orders of the Commission;
    D. The regulation of the disposal of such other byproduct, 
source, or special nuclear materials as the Commission from time to 
time determines by regulation or order should, because of the 
hazards or potential hazards thereof, not be so disposed without a 
license from the Commission;
    E. The evaluation of radiation safety information on sealed 
sources or devices containing byproduct, source, or special nuclear 
materials and the registration of the sealed sources or devices for 
distribution, as provided for in regulations or orders of the 
Commission.
    F. The regulation of the land disposal of by-product, source, or 
special nuclear materials waste received from other persons;
    G. The extraction or concentration of source material from 
source material ore and the management and disposal of the resulting 
byproduct material.

Article III

    With the exception of those activities identified in Article II, 
paragraphs A through D, this Agreement may be amended, upon 
application by the State and approval by the Commission, to include 
one or more of the additional activities specified in Article II, 
paragraphs E, F, and G, whereby the State may then exert regulatory 
authority and responsibility with respect to those activities.

Article IV

    Notwithstanding this Agreement, the Commission may from time to 
time by rule, regulation, or order, require that the manufacturer, 
processor, or producer of any equipment, device, commodity, or other 
product containing source, byproduct, or special nuclear materials 
shall not transfer possession or control of such product except 
pursuant to a license or an exemption from licensing issued by the 
Commission.

Article V

    This Agreement shall not affect the authority of the Commission 
under subsection 161b or 161i of the Act to issue rules, 
regulations, or orders to protect the common defense and security, 
to protect restricted data, or to guard against the loss or 
diversion of special nuclear materials.

[[Page 70897]]

Article VI

    The Commission will cooperate with the State and other Agreement 
States in the formulation of standards and regulatory programs of 
the State and the Commission for protection against hazards of 
radiation and to assure that Commission and State programs for 
protection against hazards of radiation will be coordinated and 
compatible. The State agrees to cooperate with the Commission and 
other Agreement States in the formulation of standards and 
regulatory programs of the State and the Commission for protection 
against hazards of radiation and to assure that the State's program 
will continue to be compatible with the program of the Commission 
for the regulation of materials covered by this Agreement.
    The State and the Commission agree to keep each other informed 
of proposed changes in their respective rules and regulations, and 
to provide each other the opportunity for early and substantive 
contribution to the proposed changes.
    The State and the Commission agree to keep each other informed 
of events, accidents, and licensee performance that may have generic 
implication or otherwise be of regulatory interest.

Article VII

    The Commission and the State agree that it is desirable to 
provide reciprocal recognition of licenses for the materials listed 
in Article I licensed by the other party or by any other Agreement 
State. Accordingly, the Commission and the State agree to develop 
appropriate rules, regulations, and procedures by which such 
reciprocity will be accorded.

Article VIII

    The Commission, upon its own initiative after reasonable notice 
and opportunity for hearing to the State, or upon request of the 
Governor of the State, may terminate or suspend all or part of this 
Agreement and reassert the licensing and regulatory authority vested 
in it under the Act if the Commission finds that (1) such 
termination or suspension is required to protect public health and 
safety, or (2) the State has not complied with one or more of the 
requirements of Section 274 of the Act. The Commission may also, 
pursuant to section 274j of the Act, temporarily suspend all or part 
of this Agreement if, in the judgment of the Commission, an 
emergency situation exists requiring immediate action to protect 
public health and safety and the State has failed to take necessary 
steps. The Commission shall periodically review actions taken by the 
State under this Agreement to ensure compliance with section 274 of 
the Act which requires a State program to be adequate to protect 
public health and safety with respect to the materials covered by 
this Agreement and to be compatible with the Commission's program.

Article IX

    This Agreement shall become effective on [date], and shall 
remain in effect unless and until such time as it is terminated 
pursuant to Article VIII.
    Done at [City, State] this [date] day of [month], [year].
    For the United States Nuclear Regulatory Commission.
Nils J. Diaz,
Chairman.
    For the State of Minnesota.
Tim Pawlenty,
Governor.
[FR Doc. 05-22581 Filed 11-22-05; 8:45 am]
BILLING CODE 7590-01-P


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