Document for comment: SA-113 Placing an Agreement State on Probation

Office of Nuclear Material Safety and Safeguards State
Procedure Approval

Placing an Agreement State Program on Probation
SA-113
Issue Date:

March 11, 2016

Review Date:

March 11, 2021

Pamela J. Henderson, Deputy Director
Division of Material Safety, State, Tribal,
and Rulemaking Programs

/RA/

Paul Michalak, Acting Branch Chief
Agreement State Program Branch
Division of Material Safety, State, Tribal,
and Rulemaking Programs

/RA/

Joe O’Hara
Procedure Contact
Division of Material Safety, State, Tribal,
and Rulemaking Programs

/RA/

ML15106A749

Date: 3/11/2016

Date: 3/3/2016

Date: 2/8/2016

NOTE
Any changes to the procedure will be the responsibility of the NMSS Procedure Contact.
Copies of the state procedures will be available through the NRC Web site.

Procedure Title:
Placing an Agreement State on
Probation
Procedure Number: SA-113
I.

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INTRODUCTION
This procedure describes the process used by the U.S. Nuclear Regulatory Commission
(NRC) when placing an Agreement State 1 program on probation.

II. OBJECTIVES
A. To set forth the guidelines that will be followed by NRC when considering whether to
exercise the authority contained in Section 274j. of the Atomic Energy Act (Act), as
amended, to place an Agreement State program on probation.
B. To set forth the process NRC will be using to ensure that progress is being made to
improve performance of the program in the areas identified as needing improvement
without degradation of other parts of the Agreement State’s radiation control program.
C. To ensure an Agreement State on probation understands the process, its role, and any
actions expected of the program.
D. To describe how the NRC will monitor the progress of an Agreement State in restoring
the radiation control program’s performance to the “satisfactory” criteria identified in
Management Directive (MD) 5.6, Integrated Materials Performance Evaluation Program
(IMPEP).
III. BACKGROUND
A. Section 274j. of the Act gives the Commission authority and responsibility for ensuring
that Agreement State programs provide adequate protection of public health and safety
and are compatible with NRC's program. In cases where the Commission finds that
program weaknesses exist regarding the adequacy and/or compatibility of an Agreement
State's program, yet the weaknesses are not so serious as to find the program
inadequate to protect public health and safety, one of the options available to ensure
continued protection of public health and safety is to place the Agreement State on
probation. Probation is also an option when an Agreement State on Heightened
Oversight has not addressed program weaknesses identified in previous reviews during
the period of Heightened Oversight (see FSME 2 Procedure SA-122, Heightened
1

As used in this procedure, State means a "State" or "Commonwealth." Staff should use the term that is correct for
the State or Commonwealth being addressed.
2 Note that the Office of Federal and State Materials and Environmental Management Programs (FSME) merged with
NMSS on October 6, 2014. Not all State procedures have been updated to reflect the new office name of NMSS. In
the interim, current procedures are in effect and will be referenced as State Procedures until such time as they are
reviewed and revised to include the official office name. All procedures may be found on the NMSS external Web
site: www.nrc.gov > About NRC > Organization and Functions > Office of Nuclear Material Safety and Safeguards.
Under Related Information, go to the "Agreement State Program." The State Procedures are under "Resources and

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Oversight and Monitoring, for details on Heightened Oversight).
B. The Commission Policy Statement, ‘Statement of Principles and Policy for the
Agreement State Program,’ established the option of placing an Agreement State
program on probation for program weaknesses regarding the adequacy and/or
compatibility of an Agreement State program.
IV. ROLES AND RESPONSIBILITIES
A. Management Review Board (MRB):
1. Considers the results of Agreement State reviews under the Integrated Materials
Performance Evaluation Program (IMPEP) and recommends to the Executive
Director of Operations (EDO) that an Agreement State be placed on probation
when program weaknesses regarding the adequacy and/or compatibility of the
program are identified during an IMPEP review.
2. For Agreement States on probation, reviews State’s Performance Improvement
Plan.
a. Sends a letter from the Chair of the MRB to the Agreement State
acknowledging receipt and approval/disapproval of the Plan. The letter
will also include any comments from the review of the Plan.
3. Recommends to the EDO that the probationary status of an Agreement State
program be lifted/removed.
4. Evaluates special reviews of Agreement State programs conducted to assess a
specific program weakness or weaknesses identified during periodic meetings or
other interactions with Agreement State programs and determines whether the
Agreement State program be placed on probation.
5. Considers improvements made by an Agreement State program and the
resolution of action items from the Agreement State’s Program Improvement
Plan to determine if a recommendation should be made to the EDO to lift the
probationary status.
6. Evaluates the adequacy of an Agreement State’s actions during a period of
Heightened Oversight. If a programmatic weakness or weaknesses continue
uncorrected throughout the period of Heightened Oversight, the MRB may
Tools," and then "NMSS Procedures."

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recommend to the EDO that the Agreement State program be placed on
probation.
B. The Executive Director for Operations (EDO):
1. Informs the Commission of any decision to initiate proceedings to place the
Agreement State program on probation and the results of the MRB.
2. The EDO signs the letter to the governor of the State containing the staff’s
recommendation and basis. The EDO should contact the State’s governor to
discuss the letter before it is mailed.
C. Director, Division of Materials Safety, State, Tribal and Rulemaking (MSTR):
1. Coordinates and reviews all probation notifications (i.e., to the governor, to the
Agreement State’s U.S. Congressional delegation, to the appropriate Congressional
committees, to the Federal Register, to all of the Agreement State’s licensees, and to
all Agreement and Non-Agreement States).
2. Coordinates and reviews all notifications to lift the probationary status of an
Agreement State program (i.e., to the governor, to the Agreement State’s U.S.
Congressional delegation, to the appropriate Congressional committees, to the
Federal Register, to all of the Agreement State’s licensees, and to all Agreement and
Non-Agreement States).
3. Coordinates the review of the Agreement State’s Program Improvement Plan.
4. Coordinates follow-up IMPEP reviews of Agreement State programs on probation.
D. Regional State Agreements Officer (RSAO):
1. Leads and coordinates probation activities with the Office of Nuclear Material Safety
and Safeguards (NMSS)/MSTR Agreement State program management, IMPEP
Coordinator or designee, and other applicable NRC staff.
2. Reviews and comments on the Program Improvement Plan submitted by an
Agreement State on probation.
3. Coordinates and prepares minutes of all probation-related conference calls, and
coordinates the minutes with the NMSS/MSTR Agreement State program
management, IMPEP Coordinator or designee, and other applicable NRC staff to
ensure a clear understanding of discussions was recorded.
4. Participates, as a team member, on follow-up IMPEP reviews.

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E. NMSS/MSTR IMPEP Coordinator or designee:
1. Prepares, for MSTR Division Director review, notifications of the probationary status
of the Agreement State program to:
a. Agreement State’s governor (see Appendix A for a sample Letter to the Governor
of [State] Probation),
b. Members of the Agreement State’s U.S. Congressional delegation,
c. Appropriate Congressional Committees,
d. Press Release,
e. Federal Register Notice (see Appendix B for sample Notice)
f. All of the Agreement State’s licensees, and
g. All Agreement and Non-Agreement States.
2. Provides and coordinates with NRC’s Office of Congressional Affairs to notify
members of the Agreement State's Congressional delegation and Appropriate
Congressional committees of the Agreement State’s probation.
3. Coordinates with NRC’s Office of Public Affairs to issue a press release on the
Agreement State’s probation
4. Reviews and comments on the Program Improvement Plan submitted by the
Agreement State on probation.
5. Participates, in coordination with the RSAO, in probation activities including
conference calls with the State, and reviews and comments on minutes of probation
conference calls.
6. Prepares, for MSTR Division Director review, notifications of the lifting of the
probationary status of an Agreement State program to:
a.
b.
c.
d.
e.
f.
g.

Agreement State’s governor,
Members of the Agreement State’s U.S. Congressional delegation,
Appropriate Congressional Committees,
Press Release,
Federal Register Notice (see Appendix B for sample Notice)
All of the Agreement State’s licensees, and
All Agreement and Non-Agreement States.

7. Provides and coordinates with NRC’s Office of Congressional Affairs to notify
members of the Agreement State's Congressional delegation and Appropriate
Congressional committees on the lifting of the Agreement State’s probation.

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8. Provides and coordinates with NRC’s Office of Public Affairs to issue a press release
on the lifting of Agreement State’s probation.

V. GUIDANCE
A. Process for Considering Probation
1. If the MRB identifies program weaknesses regarding the adequacy and/or
compatibility of the Agreement State's program, but does not consider the
weaknesses so serious as to find the program inadequate to protect public health
and safety, one of the options available to ensure continued protection of public
health and safety is to recommend to the EDO that the Agreement State program be
placed on probation.
2. The MRB may decide to recommend placing an Agreement State program on
probation based on the results of an IMPEP review, special review, or other
interaction with the State. Major programmatic changes or evidence of poor program
performance identified during a periodic meeting or other interaction with an
Agreement State program may warrant the need for a special review to be
conducted. A loss of key State personnel, a shift in resources to address specific
State priorities, a pattern of weak State responses to events, or deliberate
misconduct on the part of a State official could be factors in determining the need for
a special review.
3. If the MRB determines probationary status is warranted, a meeting, with senior State
officials and other applicable NRC staff (RSAO, MSTR IMPEP Coordinator), to
discuss NRC concerns may be scheduled before declaring probationary status.
4. If the MRB recommends the Agreement State program be placed on probation, a
letter for the EDO’s signature that contains the status of the Agreement State
program, the MRB’s recommendation, and any other pertinent information will be
prepared by MSTR.
B. Details of the Criteria for Probation
The MRB may consider placing an Agreement State Program on probation when any of
the following circumstances are observed:
1. When one or more of the common and non-common performance indicators are
found unsatisfactory during an IMPEP review and are of such safety significance that
assurance of the program's ability to protect public health and safety may be
degraded so that increased oversight by NRC is required to ensure program

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improvements.
2. When programmatic weaknesses have gone uncorrected for a significant period of
time and NRC is not confident of the Agreement State's ability to correct such
weaknesses in an expeditious and effective manner without increased oversight by
NRC.
3. When a program has repeatedly been late in adopting required compatibility
elements and increased oversight by NRC would yield improvements.
4. When a program has remained on Heightened Oversight for a significant period of
time and the results of an IMPEP review or other interaction with the Agreement
State reveal that there has been little progress in achieving milestones identified in
the State’s Program Improvement Plan or addressing recommendations made during
previous IMPEP reviews.
C. Elements of Probation
1. Agreement State Program Improvement Plan
a. The Agreement State’s Program Improvement Plan must include actions to
address the recommendations in the final IMPEP report. It must fully discuss
root causes for weaknesses and include short- and long-term corrective actions
that target the identified root causes. The Program Improvement Plan must
contain projected dates for completion of corrective actions, detail the products to
be developed or implemented, and indicate the person(s) responsible for each
product. The Program Improvement Plan will be reviewed by the responsible
RSAO and the NMSS/MSTR IMPEP Coordinator or Designee. Preliminary
review results will be discussed at the first probation conference call with the
State. (See Appendix B of NMSS Procedure SA-122, Heightened Oversight and
Monitoring, for an example of a Program Improvement Plan.)
b. NRC and the Agreement State program managers may meet to discuss the
Program Improvement Plan and any comments they may have. The managers
should agree with the schedule of corrective actions. This meeting may
determine the projected duration of the probationary period. Normally, the
probationary period will be 1 year or less, but may be extended based on the
specific circumstances.
2. Periodic progress reports.
The reports should be brief, concise summaries of the status of State actions and
include an updated Program Improvement Plan. The report and updated Program
Improvement Plan should be sent to the RSAO approximately 2 weeks before the

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next scheduled conference call.
3. Periodic NRC/Agreement State probation conference calls.
a. These calls are designed to maintain open communications between the
Agreement State and NRC. The calls will involve Agreement State managers
responsible for improving the program, the IMPEP team leader, the MSTR
IMPEP Coordinator or designee, the RSAO, and other NRC or State staff, as
needed.
b. The probation conference calls normally will occur at least bimonthly, unless
directed otherwise by the MRB.
4. Follow-up IMPEP review
a. The MRB will determine when a follow-up IMPEP review will be performed to
evaluate State progress in resolving weaknesses. Normally, the follow-up review
will occur 1 year after the original review that commenced the probationary
period. (See NMSS Procedure SA-119 for additional information on follow-up
reviews.)
b. The MRB may choose to recommend to the Commission that probation or any
further action against the Agreement State be discontinued. The basis for
continuation or discontinuation of probation could be based on the factors listed
below:
i.

The MRB should recommend discontinuation of the probationary period if the
MRB finds the Agreement State program is satisfactory for all performance
indicators. Based on the results of the follow-up IMPEP review and the
information obtained during the MRB meeting, the MRB should determine if
additional oversight of a lesser degree, such as Heightened Oversight or
Monitoring, is necessary to ensure the Agreement State program continues to
improve.

ii

If the MRB finds the Agreement State program is improving and is
implementing the recommendations from the last IMPEP review; and the
program is still found satisfactory, but needs improvement, for one or more
performance indicators, the MRB should recommend discontinuation of the
probationary period and the Agreement State program be placed on
Heightened Oversight or Monitoring.

iii. If the MRB finds the Agreement State program is not improving or resolving
the recommendations from the last IMPEP review in a timely manner and the
program is found unsatisfactory for one or more performance indicators, the

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MRB may elect to recommend continuation of the probationary period or may
direct MSTR to prepare a Commission paper requesting approval for an
appropriate next action, which may include suspension or termination of the
Agreement (see NMSS Procedure SA-114, Suspension of a Section 274b.
Agreement and NMSS Procedure SA-115, Termination of a Section 274b.
Agreement).
E. Additional Actions for Programs on Probation
1. NRC/Agreement State management meetings
NRC may offer to meet with Agreement State officials to discuss State actions to
improve the radiation control program.
2. NRC technical assistance
NRC and the Agreement State may discuss NRC technical assistance in accordance
with the guidance in NRC Management Directive 5.7, Technical Assistance to
Agreement States.
F. Discontinuation of Probationary Status
1. Once all actions in the State’s Program Improvement Plan have been completed and
deemed closed based on the results of a follow-up IMPEP review of the Agreement
State's actions, the MRB may convene to review improvements and may consider
recommending to the EDO that the probationary status be discontinued. The MRB
may find it more beneficial to hold the discussion of the completed actions at the
same time it meets to discuss the follow-up review.
2. If the MRB determines that the Agreement State has fulfilled the commitments in its
Program Improvement Plan and the MRB is satisfied with the performance of the
Agreement State program based on the results of an IMPEP review, the MRB should
recommend to the EDO that the probationary status be lifted.
3. In the event that the Agreement State does not complete the actions identified in its
Program Improvement Plan within a reasonable time period and extenuating
circumstances do not exist, the MRB should consider whether the Agreement should
be suspended or terminated (See the process and guidelines in NMSS Procedure
SA-114, Suspension of a Section 274b. Agreement or NMSS Procedure SA-115,
Termination of a Section 274b. Agreement will be followed.)
4. MSTR will be assigned the lead for preparation and coordination of the letter, for the
EDO’s signature, containing the MRB’s recommendation. The letter will include the
current status of the Agreement State program, the recommendation of the MRB,

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and any other pertinent information supporting the MRB’s decision. The letter will be
coordinated with the Region in which the Agreement State is located.
5. If the EDO approves lifting the probationary status, notification of such change will be
made following the same process outlined in Section V.C.1-4 above.
6. If the EDO approves further action against the Agreement State, the process and
guidelines in NMSS Procedure SA-114, Suspension of a Section 274b. Agreement
or NMSS Procedure SA-115, Termination of a Section 274b. Agreement will be
followed.
VI.

APPENDIXES
Appendix A - Sample Letter to the Governor of [State] Probation
Appendix B - Sample Federal Register Notice

VII.

REFERENCES
1. NRC Management Directive 5.6, Integrated Materials Performance Evaluation
Program (IMPEP).
2. NRC Management Directive 5.7, Technical Assistance to Agreement States.
3. Statement of Principles and Policy for the Agreement State Program, dated
September 3, 1997.
4. NMSS Procedure SA-106, The Management Review Board.
5. NMSS Procedure SA-114, Suspension of a Section 274b. Agreement.
6. NMSS Procedure SA-115, Termination of a Section 274b. Agreement.
7. NMSS Procedure SA-119, Follow-up IMPEP Reviews.
8. NMSS Procedure SA-122, Heightened Oversight and Monitoring.

VIII.

ADAMS REFERENCE DOCUMENTS
For knowledge management purposes, all previous revisions of this procedure, as well
as associated correspondence with stakeholders that have been entered into NRC’s
Agencywide Documents Access and Management System (ADAMS) are listed below.

No.

Date

Document Title/Description

Accession Number

1

11/24/00

STP Procedure SA-113

ML010180096

2

7/15/05

STP-05-054, Opportunity to Comment on Draft
Revision to STP Procedure SA-113

ML051990496

3

5/16/06

STP-06-046, Final STP Procedure SA-113

ML061380780

4

5/16/06

STP Procedure SA-113

ML061430106

SA-113: Placing an Agreement State on Probation

Document Title/Description

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No.

Date

Accession Number

5

5/16/06

STP Procedure SA-113 (redline/strikeout)

ML061430118

6

5/16/06

Summary of Comments on SA-113

ML061430123

7

7/23/09

FSME-09-058, Opportunity to Comment on Draft
Revisions to FSME Procedures SA-113 and SA-122

ML091910356

Appendix A
Sample Letter to the Governor of [State] Probation
Dear Governor [Name]:
As you may be aware, under Section 274 of the Atomic Energy Act of 1954, as amended, the
Nuclear Regulatory Commission (NRC) retains the authority and responsibility for ensuring that
Agreement State programs continue to provide adequate protection of public health and safety,
and that they are compatible with NRC's program for regulating radioactive materials. The NRC
may place an Agreement State program on probation if the NRC is not confident that the State
can address program weaknesses in an expeditious and effective manner without increased
oversight by NRC.
The last review of the [State] radiation control program found program weaknesses related to
the adequacy and/or compatibility of your Agreement State program. Correction of these
weaknesses is necessary to provide adequate protection of public health and safety in [State].
The NRC has further determined that while making the necessary corrections, the [State]
program would benefit from increased NRC oversight. The NRC is, therefore, placing the
[State] radiation control program on probation. Staff from the [State] radiation control program
have been involved in the discussions leading to this decision.
The [State] radiation control program staff will be requested to provide NRC staff a "Program
Improvement Plan" describing actions to be taken to address the identified weaknesses,
including specific goals and timetables. NRC staff will work with your staff throughout the
probationary period. Normally, the probationary period is approximately one year, but it could
be extended based on extenuating circumstances. Once the NRC determines that the
commitments in the "Program Improvement Plan" have been met and that the radiation control
program has demonstrated significant improvements in program performance, the probationary
status will be lifted.
I will be happy to answer any questions you may have, or your staff may contact [Name],
Director, Office of Nuclear Material Safety and Safeguards, at [telephone number].
Sincerely,

Executive Director for Operations

cc: [SLO]
[RCPD]

Appendix B
Sample Federal Register Notice
Placement of State Radiation Control Program on Probation
AGENCY:

U.S. Nuclear Regulatory Commission (NRC)

ACTION:

Notice of State Radiation Control Program Being Placed on Probation

SUMMARY:
NRC is announcing the placement of the [State] radiation control program for regulation of
certain Atomic Energy Act materials on probation and is initiating increased NRC oversight of
the program. The NRC is overseeing implementation of a "Program Improvement Plan"
developed by the staff of the [State] radiation control program. Once the radiation control
program has met the commitments made in the "Program Improvement Plan," and has
demonstrated significant improvements in program performance, the probationary status will be
lifted. There will be further announcements of that action.
FOR FURTHER INFORMATION CONTACT:
[Contact], Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory
Commission, Washington, DC 20555, telephone [telephone number].
SUPPLEMENTARY INFORMATION:
Agreement States are States which have assumed regulatory authority from NRC over the
possession and use of certain radioactive materials. Under Section 274 of the Atomic Energy
Act, as amended, the Commission retains the authority and the responsibility to assure that
Agreement State programs continue to provide adequate protection of public health and safety,
and to be compatible with NRC's program with respect to the regulation of the materials and
uses authorized under the Agreement. The Commission Policy Statement, "Statement of
Principles and Policy for the Agreement State Program," established the option of placing an
Agreement State radiation control program on probation for program weaknesses that require
increased NRC oversight.
The Commission, through its Management Review Board (MRB), has considered the State
of [State's Name] radiation control program and has agreed with the findings of the MRB, as
well as with its recommendation to place the program on probation. [Narrative of the MRB
findings].
The State has been requested to develop a "Program Improvement Plan" and submit it to
the NRC within 30 days. The plan should describe actions that will be taken by the State to
address weaknesses, including specific goals and milestones. The Commission expects that
the probationary period will be one year or less, but could be extended based on extenuating
circumstances.

Appendix B

Page 2

Once the MRB determines that the Agreement State has met the commitments in the
"Program Improvement Plan" and has demonstrated significant improvements in program
performance, a recommendation will be made to the NRC Executive Director for Operations that
the probationary status be lifted. Upon Commission approval, the probationary status will be
lifted. Notification of discontinuance of probation will be made to the Agreement State's
Governor, the Agreement State's Congressional delegation, and all other Agreement and NonAgreement States. NRC will also publish a Federal Register Notice and a press release
announcing the discontinuance of probation for [State].