Management Directive Handbook 5.8 for comment

U.S. NUCLEAR REGULATORY COMMISSION DIRECTIVE HANDBOOK (DH)

DH 5.8

PROPOSED SECTION 274B. AGREEMENTS
WITH STATES

DT-13-11

Volume 5

Governmental Relations and Public Affairs

Approved by:

John LubinskiMark A. Satorius, Director
Office of Nuclear Material Safety and SafeguardsFederal and State
Materials and Environmental Management Programs

Date Approved:

June 25, 2013

Expiration Date: June 25, 2018
Issuing Office:

Office of Nuclear Material Safety and SafeguardsFederal and State
Materials and Environmental Management
Programs
Division of Materials Safety, Security, State, and Tribal Programs and State
Agreements

Contact Name:

Stephen Poy
301-415-7135

EXECUTIVE SUMMARY
Directive and Handbook 5.8 are being revised to update the language in the standard
agreement made by the Commission as a result of the Vermont Agreement. This revision
also reflects the reorganization and subsequent changed responsibilities of the Office of
Nuclear Material Safety and Safeguards. Directive and Handbook 5.8 are being revised to
include the formation of the Office of Federal and State Materials and Environmental
Management Programs and its jurisdiction over 11e.(3) (discrete sources of radium-226 and
accelerator-produced radioactive materials) and 11e.(4) (discrete sources of radioactive
material) as required by the Energy Policy Act of 2005. This revision also reflects the
reorganization and subsequent changed responsibilities of the Office of Nuclear Material
Safety and Safeguards.

TABLE OF CONTENTS
I.

PROPOSED SECTION 274B. AGREEMENTS WITH STATES ......................................... 2
A. Overview ........................................................................................................................ 2

DH 5.8

PROPOSED SECTION 274B. AGREEMENTS
WITH STATES

Date Approved: 06/25/2013

B. Process Sequence for New Agreements ....................................................................... 2
C. Standard Agreement ...................................................................................................... 3

EXHIBIT
Exhibit

Standard Agreement Under Section 274b............................................................. 4

I. PROPOSED SECTION 274B. AGREEMENTS WITH STATES
A. Overview
1. The U.S. Nuclear Regulatory Commission is authorized under Section 274 of the
Atomic Energy Act of 1954, as amended, to enter into agreements with States—
(a) Upon certification by the Governor that 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 the proposed agreement and that the State
desires to assume regulatory responsibility for such material.
(b) After a finding by the Commission that the State program is in accordance with
the requirements of Section 274o. and in all other respects is compatible with the
Commission's program for the regulation of such materials, and is adequate to
protect public health and safety with respect to the materials covered by the
proposed agreement.
2. This management directive and handbook supplement the "Criteria for Guidance of
States and NRC in Discontinuance of NRC Regulatory Authority and Assumption
Thereof by States through Agreement" (46 FR 7540, January 23, 1981, as amended
by policy statements published at 46 FR 36969, July 16, 1981, and 48 FR 33376,
July 21, 1983) and the Office of Nuclear Material Safety and SafeguardsFederal and
State Materials and Environmental Management Programs Procedures, SA-700,
"Processing an Agreement." These documents should be used in conjunction with
this handbook.
B. Process Sequence for New Agreements
The typical sequence for NRC in processing a State's request for an agreement is
summarized below:

For the latest version of any NRC directive or handbook, see the online MD Catalog.

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PROPOSED SECTION 274B. AGREEMENTS
WITH STATES

Date Approved: 06/25/2013

1. Receive a letter of intent from the Governor of the State interested in an agreement
with NRC.
2. Provide guidance to the State on the necessary program elements of an Agreement
State program, including draft legislation, regulations, and program description.
3. Receive and review the request for an agreement from the Governor, the program
description, and necessary program elements.
4. Transmit and resolve any outstanding items with the State regarding the proposed
agreement request.
5. Prepare a Commission paper on the proposed agreement request, including the
staff’s draft assessment and a Federal Register notice with the proposed agreement
for public comment.
6. Publish a Federal Register notice with the draft staff assessment and proposed
agreement for public comment for 4 consecutive weeks according to the Atomic
Energy Act.
7. Prepare a Commission paper that analyzes and responds to public comments and
provides the final staff assessment and recommendations on the agreement for final
approval by the Commission.
8. Prepare the approved agreement for the signature of the Chairman and the
Governor upon Commission approval and arrange a signing ceremony, if necessary.
9. Arrange all post-signing coordination for the orderly transfer of regulatory authority
under the effective agreement.
C. Standard Agreement
The standard agreement describes the categories of materials to be regulated by the
State and the effective date of the agreement, as shown in the exhibit to this handbook.

For the latest version of any NRC directive or handbook, see the online MD Catalog.

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DH 5.8

PROPOSED SECTION 274B. AGREEMENTS
WITH STATES

Date Approved: 06/25/2013

EXHIBIT

Exhibit

Standard Agreement Under Section 274b.

AN AGREEMENT
BETWEEN
THE UNITED STATES NUCLEAR REGULATORY COMMISSION
AND
THE STATE/COMMONWEALTH OF [insert name of State]
FOR THE
DISCONTINUANCE OF CERTAIN COMMISSION REGULATORY AUTHORITY
AND
RESPONSIBILITY WITHIN THE STATE/COMMONWEALTH 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, 42 U.S.C. §2011 et seq. (hereinafter referred to as the Act), to enter into
agreements with the Governor of any State/Commonwealth of [insert name] (hereinafter
referred to as “the State”) providing for discontinuance of the regulatory authority of the
Commission within the State/Commonwealth under Chapters 6, 7, and 8, and Section 161
of the Act with respect to byproduct materials as defined in Sections 11e.(1), 11e.(2),
11e.(3), and 11e.(4) 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/Commonwealth of [insert name] is authorized under
[cite enabling state statute] to enter into this Agreement with the Commission; and,

For the latest version of any NRC directive or handbook, see the online MD Catalog.

4

Formatted: Font: Italic

DH 5.8

PROPOSED SECTION 274B. AGREEMENTS
WITH STATES

Date Approved: 06/25/2013

WHEREAS, The Governor of the State/Commonwealth of [insert name] certified on [date],
that the State/Commonwealth of [insert name] (hereinafter referred to as the
State/Commonwealth) has a program for the control of radiation hazards adequate to
protect public health and safety with respect to the materials within the
State/Commonwealth covered by this Agreement, and that the State/Commonwealth
desires to assume regulatory responsibility for such materials; and,
WHEREAS, The Commission found on [date] that the program of the State/Commonwealth
of [insert name] 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/Commonwealth of [insert name] and the Commission recognize the
desirability and importance of cooperation between the Commission and the
State/Commonwealth in the formulation of standards for protection against hazards of
radiation and in assuring that State/Commonwealth and Commission programs for
protection against hazards of radiation will be coordinated and compatible; and,
WHEREAS, The Commission and the State/Commonwealth of [insert name] 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/Commonwealth [insert name] acting on behalf of the State/Commonwealth as follows:
ARTICLE I1
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

1

If the State/Commonwealth chooses not to regulate all categories of material listed in Article I, those

categories where NRC will retain authority should be listed in Article II, A.

For the latest version of any NRC directive or handbook, see the online MD Catalog.

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PROPOSED SECTION 274B. AGREEMENTS
WITH STATES

Date Approved: 06/25/2013

Commission in the State/Commonwealth 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. Byproduct materials as defined in Section 11e.(2) of the Act;
C. Byproduct materials as defined in Section 11e.(3) of the Act;
D. Byproduct materials as defined in Section 11e.(4) of the Act;
E. Source materials;
F. Special nuclear materials in quantities not sufficient to form a critical mass.
G. The regulation of the land disposal of byproduct, source, or special nuclear waste
materials received from other persons.
H. 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.
ARTICLE II
A. This Agreement does not provide for discontinuance of any authority, and the
Commission shall retain authority and responsibility with respect to:
1.

The regulation of the construction, and operation, and decommissioning of any
production or utilization facility or any uranium enrichment facility;

2.

The regulation of 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 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;

4.

The regulation of the disposal of such other byproduct, source, or special nuclear
material 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;

5. The evaluation of radiation safety information on sealed sources or devices containing
byproduct, source, or special nuclear materials and the registration of the sealed
For the latest version of any NRC directive or handbook, see the online MD Catalog.

Formatted: Indent: Hanging: 0.63", Tab stops: 0.5", Left

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PROPOSED SECTION 274B. AGREEMENTS
WITH STATES

Date Approved: 06/25/2013

sources or devices for distribution, as provided for in regulations or orders of the
Commission.2
56.

The regulation of activities not exempt from Commission regulation as stated in
10 CFR Part 150.

B.342
Notwithstanding this Agreement, the Commission retains the following
authorities pertaining to byproduct material as defined in Section 11e.(2) of the Atomic
Energy Act:
1.

Prior to the termination of a State/Commonwealth license for such byproduct
material, or for any activity that results in the production of such material, the
Commission shall have made a determination that all applicable standards and
requirements pertaining to such material have been met.

2.

The Commission reserves the authority to establish minimum standards
governing reclamation, long-term surveillance or maintenance, and ownership of
such byproduct material and of land used as a disposal site for such material.
Such reserved authority includes:
a.

2

The authority to establish terms and conditions as the Commission
determines necessary to assure that, prior to termination of any license
for such byproduct material, or for any activity that results in the
production of such material, the licensee shall comply with
decontamination, decommissioning, and reclamation standards
prescribed by the Commission; and with ownership requirements for such
materials and its disposal site;

Include only if the State is not authorized to conduct sealed source and device reviews for purposes of

registration for distribution.
3

Article II.B is included in the agreement only if the State is authorized to regulate 11e.(2) byproduct

material.
4

Article II.B is included in the agreement only if the State is authorized to regulate 11e.(2) byproduct

material.
For the latest version of any NRC directive or handbook, see the online MD Catalog.

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PROPOSED SECTION 274B. AGREEMENTS
WITH STATES

Date Approved: 06/25/2013

b.

The authority to require that prior to termination of any license for such
byproduct material or for any activity that results in the production of such
material, title to such byproduct material and its disposal site be
transferred to the United States or the State/Commonwealth at the option
of the State/Commonwealth (provided such option is exercised prior to
termination of the license);

c.

The authority to permit use of the surface or subsurface estates, or both,
of the land transferred to the United States or a State/Commonwealth
pursuant to paragraph 2.b. in this section in a manner consistent with the
provisions of the Uranium Mill Tailings Radiation Control Act of 1978,
provided that the Commission determines that such use would not
endanger public health, safety, welfare, or the environment;

d.

The authority to require, in the case of a license for any activity that produces
such byproduct material (which license was in effect on November 8, 1981),
transfer of land and material pursuant to paragraph 2.b. in this section taking
into consideration the status of such material and land and interests therein,
and the ability of the licensee to transfer title and custody thereof to the
United States or a State/Commonwealth;

e.

The authority to require the Secretary of the Department of Energy, other
Federal agency, or State/Commonwealth, whichever has custody of such
byproduct material and its disposal site, to undertake such monitoring,
maintenance, and emergency measures as are necessary to protect
public health and safety, and other actions as the Commission deems
necessary; and

f.

The authority to enter into arrangements as may be appropriate to assure
Federal long-term surveillance or maintenance of such byproduct material
and its disposal site on land held in trust by the United States for any
Indian Tribe or land owned by an Indian Tribe and subject to a restriction
against alienation imposed by the United States.
ARTICLE III

With the exception of those activities identified in Article II.A.1 through 4, this Agreement
may be amended, upon application by the State/Commonwealth and approval by the
Commission, to include one or more of the additional activities specified in Article II,
paragraphs [those activities not included in the agreement], whereby the
For the latest version of any NRC directive or handbook, see the online MD Catalog.

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PROPOSED SECTION 274B. AGREEMENTS
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Date Approved: 06/25/2013

State/Commonwealth may then exert regulatory authority and responsibility with respect to
those activities.
ARTICLE IV5
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 byproduct, source, byproduct, or special nuclear
material 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 promotetect the common defense and
security, to protect restricted data, or to guard against the loss or diversion of special
nuclear material.
ARTICLE VI
The Commission will cooperate with the State/Commonwealth 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/Commonwealth programs for protection against hazards of radiation will be
coordinated and compatible. The State/Commonwealth agrees to cooperate with the
Commission and other Agreement States in the formulation of standards and regulatory
programs of the State/Commonwealth and the Commission for protection against hazards of
radiation and to assure that the State/Commonwealth's program will continue to be
compatible with the program of the Commission for the regulation of materials covered by
this Agreement.
The State/Commonwealth 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.

5

Delete this Article and renumber the remaining articles if the State/Commonwealth assumes authority

over all categories of materials in Article II.
For the latest version of any NRC directive or handbook, see the online MD Catalog.

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PROPOSED SECTION 274B. AGREEMENTS
WITH STATES

Date Approved: 06/25/2013

The State/Commonwealth 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/Commonwealth 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/Commonwealth 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/Commonwealth, or upon request of the Governor of [insert name]the
State/Commonwealth, may terminate or suspend all or part of this aAgreement 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/Commonwealth has not complied with one or more of the requirements of Section
274 of the Act.
The Commission may also, pPursuant to Section 274j of the Act, the Commission may, after
notifying the Governor, temporarily suspend all or part of this Aagreement without notice or
hearing if, in the judgment of the Commission, an emergency situation exists with respect to
any material covered by this agreement creating danger which requiresing immediate action
to protect public health and safety of persons either within or outside and the
State/Commonwealth and the State/Commonwealth has failed to take necessary steps
necessary to contain or eliminate the cause of the danger within a reasonable time after the
situation arose. The Commission shall periodically review actions taken by the
State/Commonwealth under this Agreement to ensure compliance with Section 274 of the
Act which requires a State/Commonwealth 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.

For the latest version of any NRC directive or handbook, see the online MD Catalog.

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PROPOSED SECTION 274B. AGREEMENTS
WITH STATES

Date Approved: 06/25/2013

ARTICLE IX6
In the licensing and regulation of byproduct material as defined in Section 11e.(2) of the Act,
or of any activity which results in production of such material, the State/Commonwealth shall
comply with the provisions of Section 274o of the Act. If in such licensing and regulation, the
State/Commonwealth requires financial surety arrangements for reclamation or long-term
surveillance and maintenance of such material,
A. The total amount of funds the State/Commonwealth collects for such purposes shall be
transferred to the United States if custody of such material and its disposal site is
transferred to the United States upon termination of the State/Commonwealth license for
such material or any activity which results in the production of such material.
A. Such funds include, but are not limited to, sums collected for long-term surveillance or
maintenance. Such funds do not, however, include monies held as surety where no
default has occurred and the reclamation or other bonded activity has been performed;
and
B. Such surety or other financial requirements must be sufficient to ensure compliance with
those standards established by the Commission pertaining to bonds, sureties, and
financial arrangements to ensure adequate reclamation and long-term management of
such byproduct material and its disposal site.
ARTICLE X
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
_________________________________________, Chairman
FOR THE STATE/COMMONWEALTH OF ____________________________
_________________________________________, Governor

6

Use Article IX only if the State is authorized to regulate 11e.(2) byproduct material.

For the latest version of any NRC directive or handbook, see the online MD Catalog.

11

Formatted: Numbered + Level: 1 + Numbering Style: A, B,
C, … + Start at: 1 + Alignment: Left + Aligned at: 0.25" +
Indent at: 0.5"