ML20217L801

Requests Concurrence on Attached Memo Forwarding Fr Notice for Final Rule Entitled, Requirements for Those Who Possess Certain Industrial Devices Containing Byproduct Matl to Provide Requested Info

ML20217L801
Person / Time
Issue date:	05/14/1999
From:	Cool D NRC OFFICE OF NUCLEAR MATERIAL SAFETY & SAFEGUARDS (NMSS)
To:	Funches J, Gray J, Lohaus P NRC OFFICE OF STATE PROGRAMS (OSP), NRC OFFICE OF THE CONTROLLER, NRC OFFICE OF THE GENERAL COUNSEL (OGC)
Shared Package
ML20217K959	List: ML20217K955 ML20217K985 ML20217L058 ML20217L722 ML20217L732 ML20217L758 ML20217L779 ML20217L801 ML20217L912
References
FRN-63FR42269, RULE-PR-31 AG06-2-016, NUDOCS 9910270075
Download: ML20217L801 (6)

Text

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,g .. UNITED STATES Q

Q NUCLEAR RECULATORY COMMISSION WASHINGTON, D.C. 2066M001

$hjp # May 14, 1999

- MEMORANDUM TOi Paul H. Lohaus, Director

• Office of State Programs -

Jesse L. Funches l Chief Financial Officer Anthony J. Galante Chief Information Officer Brenda Jo. Shelton, Chief Information and Records Management Branch L Chief information Officer

.y Office of the General Counsel James Ueberman, Director

, Office of Enforcement David L. Meyer, Chief Rules and Directive Branch Office of Administration FROM: Donald A. Cool, Director Division of Industrial and Medical Nuclear Safety, NMSS

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SUBJECT:

OFFICE REVIEW AND CONCURRENCE: FINAL RULE TO AMEND 10 CFR 31.5," REQUIREMENTS FOR THOSE WHO POSSESS CERTAIN INDUSTRIAL DEVICES CONTAINING BYPRODUCT MATERIAL TO PROVIDE REQUESTED '

INFORMATION" u ,

' Your concurrence is requested on the attached memorandum forwarding the Federal Register notice for the subject final rule. The rule will provide a legal basis for initiating registration of certain industrial devices.

CONTACTS: Catherine R. Mattsen, NMSS/IMNS (301) 415-6264 Jayne McCausland, NMSS/IMNS

-(301) 415-6219-9910270075 991022 PDR PR 31 63FR42269 PDR 1 m. _ . . _ _

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L working group process valuable in identifying criteria for categorizing devices that are more l i

likely to present'a significant risk by exposure of the public or through contamination of property.

I On December 2,1998 (63 FR 66492), the Commission again proposed the addition of l an explicit requirement to provide information in response to requests made by the NRC. While ,

l l - the rule applies to all 10 CFR 31.5 general licensees, the NRC plans to contact only those l 1

l generallicensees identified by the working group for the purpose of the registration program.

For the most part,'generallicensees using devices meeting these criteria have a limited number of devices that will require registration.

' in that notice, the NR' C also withdrew the December 27,1991, proposed rule. The NRC l l

has reviewed the other provisions contained in the December 27,1991, proposed rule and the

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l recommendations e.porking grnug d developed additional requirements in a separate proposed ru (Insert date and FR cite). he recommendatipns made in NUREG-1551 were

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,,uno &n.yva km > w A considered in developing the aseen stpo# posed rule (ikswuckThat rule addresses i fees for registration(

a$ditional reporting, recordk'eeping, and labeling requirements for 10 CFR 32.51 licensees, and compatibility of Agreement State regulations in this area.

i On March 9,1999 (64 FR 11508), the Commission established an interim enforcement i policy for violations of 10 CFR 31.5 that are discovered and reported by licensees during the I initial cycle of the registration program. The initial cycle is considered to be the issuance of one round of registration requests to all affected generallicensees. This policy supplements the normal NRC Enforcement Policy in NUREG-1600, Rev.1. It will remain in effect through one complete cycle of the registration program.

l Under this interim enforcement policy, enforcement action normally will not be taken for violations of 10 CFR 31.5 that are identified by the general licensee, and reported to the NRC if 5

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reporting is required, provided that the general licensee takes appropriate t .vctive action to address the specific violations and prevent recurrence of similar problems and otherwise has undertaken good faith efforts to respond to NRC notices and provide requested informatio .

This change from the Commission's normal enforcement policy is to remove the potential for the threat of enforcement action to be a disincentive for the licensee to identify de.'iciencies.

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_ Under the interim enforcement policy, enforcement action, including issuance of civil penalties 'and Orders, may be taken where there is: (a) failure to take appropriate corrective action to prevent recurrence of similar violations; (b) failure to respond and provide the information required by regulation; (c) willful failure to provide complete and accurate information to the NRC; or (d) other willful violations, such as willfully disposing of generally licensed material in an unauthorized manner, g/t* l As not'ed,in the December 2,1998, proposed rule, and discussed further in the pT b Nn9 L 9M gp p p ropolo gn rule o (Insert date e Commission also plans to increase the civil penalty amounts u' 1 specified in its Ereforcement Policy in NUREG-1600, Rev.1, for violations involving lost or >

_ improperly disposed of sources or devices. This increase will better relate the civil penalty -

amount to the costs avoided by the failure to properly dispose of the source or device. Due to the diversity of the types of sources and devices, the Commission is considering the establishment of three levels of base civil penalty for loss or improper disposal. The higher tiers would be for sources that are relatively costly to dispose of.

Discussion  ;

The Atomic Energy Act of 1954 (AEA), as amended, authorizes the NRC to request appropriate information from its licensees concerning licensed activities. However, the 6

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'1. The identification of devices, such as the manufacturer, model, and serial numbers;

2.' The persons knowledgeable of the devide and the applicable regulations;

3. .The disposition of the devices; and i

'4. - The location of the devices.

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While the final rule applies to all 10 CFR 31.5 general licensees (about 45,000), the g[J f'

NRC will only contact, for purposes of registration, approximately 6000 general licensees, dk9ey c)$ f'sMW O""

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8{f possessing about 24,000 devices.' This(estivhate is Dased on the criteria recommended , by '

working group for determining 'which sources should have increased oversight. Requests for

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g a linformation will be'sent to general licensees'who are expected, based on current NRC records, to possess devices containing at least 370 MBq (10 mci) of cesium-137,3.7 MBq (0.1 mci) of strontium-90,37 MBq (1 mci) of cobalt-60, or 37 MBq (1 mci) of any transuranic (at this time,

'the only gen 4 rally licensed devices meeting this criterion contain curium-244 and f

> americium-241). Th'e majority of the devices meeting these criteria are used in commercial and I

% Industdal applications measuring thickness, density, or chemical composition in petrochemical  !

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K and steel manufacturing industries. The requests will include the information contained in NRC

~ records concoming the' possession of these devices. The licensees will be asked to verify, l correct, and add to that information. The NRO records are based on information provided to

' NRC by distributors under 10 CFR 32.52(a) and compatible Agreement State regulations and from general licensees as required by 10 CFR 31.5(c)(8) or (9) regarding transfer of generally

- licensed devices. lf a general licensee noidnger possesses devices meeting the criteria, it will  ;

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-. tie expected to provide information about the disposition of the devices previously possessed.

Errors in current NRC records concerning these general licensees could be the result of: (1)

errors made in the quarterly reports of manufacturers or initial distributors, (2) general licensees 8

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t properly handled.~.One of the anticipated benefits of this rulemaking is to reduce e probability of lost and improperly disposed of sources, and ultimately the number of incide ts of .

yJbWWy inadvertent meltings. This would reduce the total expense to the steel industry resulting from

- such incidents'.' A more comprehensiv en is subject W;x;ed ic furthe.

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improdaccountability for devices and thus should also reduce the impact of improperly

&Y Jdisposed of sources to the steelindustry. %=' i

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. fee ;e ::r;:: te a,e JTine NRC enhanced oversigiii pivy .T. for Ope gene,el %;ena...

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B. Recortina Electronically and Data ' Verification Comment: Two commenters recornmended that NRC provide a means for elect onically reporting the'ihformation requested by NRC in order to save time, mailing expenses, and paper.

1 They.also indicated that NRC'should ensure that its database has an adequate data quality

" verification system and can easily flag inconsistencies.

L One.commenter suggested that the electronic filing could be accomplished through a

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. secure page on the.NRC Internet Web Site and that NRC could use the employer's tax .

identification numbed and a password to secure the information. This commenter also L

. recommer'ded that the NRC database include a data quality verification system to quickly identify and immediately notify licensees of any reporting inconsistencies and that employers could also be required to annually verify the accuracy of the inventory.

Response: The submission of electronic applications and reports is a generic issue that impacts more than the general license registration program. NRC has evaluated the issue of.

permitting licensees to file applications and reports electronically and plans to publish an amendment to the regulations to allow such subm.issions. NRC expects to publish the  ;

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, ' Bac'k fit Analysis c The NRC has determined that the backfit rule,10 CFR 50.109, does not apply to this

~ rule, because these amendments do not involve any provisions that impose backfits as defined l In 10 CFR 50.109(a)(1) and, therefore, a backfit analysis is not required.  ;

,I Small Business Regulatory Enforcement Fairness Act in accordance with the Small Business Regulatory Enforcement Fairness Act of 1996,

- the NRC has determined that this action is not a major rule and has verified this determination

with the Office of Information and Regulatory Affairs, Office of Management and Budget.

LN ffk List of Subjects in 10 CFR Part 31 0jWybok p#1

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. Byproduct material,' Criminal penalties, Labeling, Nuclear materials, Packaging and containers, Radiation protection, Reporting and recordkeeping requirements, Scientific equipment.

For the reasons set out above and under the authority of the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and 5 U.S.C. 553, the NRC

- is adopting the following amendments to 10 CFR Part 31.

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