Title 25—ENVIRONMENTAL PROTECTION ENVIRONMENTAL QUALITY BOARD [ 25 PA. CODE CH. 215 ] Security Rule for Radioactive Material [46 Pa.B. 446]
[Saturday, January 23, 2016]The Environmental Quality Board (Board) amends Chapter 215 (relating to general provisions). Chapter 215 is amended to include a reference to the new Nuclear Regulatory Commission (NRC) security regulation in 10 CFR Part 37 (relating to physical protection of category 1 and category 2 quantities of radioactive material). The Bureau of Radiation Protection incorporates by reference all applicable NRC radiation protection and control of radioactive materials regulations from 10 CFR (relating to energy).
This final-form rulemaking was adopted by the Board at its meeting on September 15, 2015.
A. Effective Date
This final-form rulemaking will be effective on March 18, 2016.
B. Contact Persons
For further information, contact Joseph Melnic, Chief, Division of Radiation Control, P. O. Box 8469, Rachel Carson State Office Building, Harrisburg, PA 17105-8469, (717) 783-9730; or Keith Salador, Assistant Counsel, Bureau of Regulatory Counsel, P. O. Box 8464, Rachel Carson State Office Building, Harrisburg, PA 17105-8464, (717) 783-8075. Persons with a disability may use the Pennsylvania AT&T Relay Service, (800) 654-5984 (TDD users) or (800) 654-5988 (voice users). This final-form rulemaking is available on the Department of Environmental Protection's (Department) web site at www.dep.state.pa.us (select ''Public Participation,'' then select ''Environmental Quality Board (EQB)'').
C. Statutory Authority
This final-form rulemaking is authorized by the Radiation Protection Act (35 P. S. §§ 7110.301 and 7110.302) and section 1920-A of The Administrative Code of 1929 (71 P. S. § 510-20).
D. Background and Purpose
When then-Governor Rendell signed the Agreement with the Chairperson of the NRC in March 2008 to oversee and regulate licensure of radioactive materials for Pennsylvania entities, the Commonwealth committed to being compatible with the NRC regulations. The Department fulfills this requirement by incorporating by reference NRC regulations. Currently, licensees in this Commonwealth are following security orders issued by the NRC in November 2005 following the terrorist attacks of September 11, 2001. The orders were reissued by the Department in 2008 after the Commonwealth became an Agreement State, for security controls, also referred to as Increased Controls (IC), for these high-activity licensees. The orders were used to develop 10 CFR Part 37 as implemented by the NRC in March 2014. The orders require licensees to secure, from unauthorized removal or access, licensed materials that are stored in controlled or unrestricted areas, as well as control and maintain constant surveillance of licensed material that is in a controlled or unrestricted area and that is not in storage. The orders also impose fingerprinting and criminal history records check requirements for unescorted access to certain radioactive material.
E. Summary of Regulatory Requirements
The following discussion outlines the regulatory requirements that have been affected by the final-form rulemaking and describes the basis for the amendments.
§ 215.1. Purpose and scope
Subsection (e) includes a reference to 10 CFR Part 37, incorporating by reference this new part.
Subsection (e)(10) designates that 10 CFR 37.3(b)(2), 37.13, 37.73(d) and (e), 37.107 and 37.109 are not incorporated. These sections are not being incorporated because they apply to the NRC only. Subsequent paragraphs are appropriately renumbered.
The amendments to subsection (h)(5) delete the transitional language that had been added in anticipation of the Commonwealth becoming an Agreement State. In addition, language has been added codifying the requirement for licensees to send criminal history records to the NRC.
F. Summary of Comments and Responses on the Proposed Rulemaking
Notice of proposed rulemaking was published at 45 Pa.B. 1367 (March 21, 2015). The public comment period closed on April 20, 2015, and no comments on the proposed rulemaking were received. The Independent Regulatory Review Commission (IRRC) reviewed the proposed rulemaking and did not have any objections, comments or recommendations.
G. Benefits, Costs and Compliance
Benefits
Codifying orders into regulation will result in optimizing compliance authority. Benefits of the final-form rulemaking are prevention of unnecessary radiation exposure to the public and radiation workers from terrorist acts using large quantities of radioactive material.
Compliance costs
No additional financial, economic or social impact will result from this final-form rulemaking.
Compliance Assistance Plan
Current IC licensees are being informed by the Department during annual inspections that the orders they are required to comply with will be codified in Pennsylvania regulation with the promulgation of this final-form rulemaking. The Department has recently notified all IC licensees through a written Information Notice that 10 CFR Part 37 is anticipated to be incorporated by March 19, 2016. In addition, a series of workshops were conducted in September 2014 in which the National Nuclear Security Administration of the United States Department of Energy participated to provide technical assistance.
Paperwork requirements
The final-form rulemaking will not revise the current paperwork requirements.
H. Pollution Prevention
This is not applicable to this final-form rulemaking.
I. Sunset Review
The regulation will be reviewed in accordance with the sunset review schedule published by the Department to determine whether the regulation effectively fulfills the goals for which it was intended.
J. Regulatory Review
Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), on March 9, 2015, the Department submitted a copy of the notice of proposed rulemaking, published at 45 Pa.B. 1367, to IRRC and the Chairpersons of the House and Senate Environmental Resources and Energy Committees (House and Senate Committees) for review and comment.
Under section 5(c) of the Regulatory Review Act, the Department shall submit to IRRC and the House and Senate Committees copies of comments received during the public comment period, as well as other documents when requested.
Under section 5.1(j.2) of the Regulatory Review Act (71 P. S. § 745.5a(j.2)), on December 9, 2015, the final-form rulemaking was deemed approved by the House and Senate Committees. Under section 5(g) of the Regulatory Review Act, the final-form rulemaking was deemed approved by IRRC effective December 9, 2015.
K. Findings
The Board finds that:
(1) Public notice of the proposed rulemaking was given under sections 201 and 202 of the act of July 31, 1968 (P. L. 769, No. 240) (45 P. S. §§ 1201 and 1202) and regulations promulgated thereunder at 1 Pa. Code §§ 7.1 and 7.2.
(2) A public comment period was provided as required by law and no comments were submitted.
(3) This final-form rulemaking does not enlarge the purpose of the proposed rulemaking published at 45 Pa.B. 1367.
(4) This final-form rulemaking is necessary and appropriate for the administration and enforcement of the acts identified in Section C of this preamble.
L. Order
The Board, acting under the authorizing statutes, orders that:
(a) The regulations of the Department, 25 Pa. Code Chapter 215, are amended by amending § 215.1 to read as set forth at 45 Pa.B. 1367.
(b) The Chairperson of the Board shall submit this order and 45 Pa.B. 1367 to the Office of General Counsel and the Office of Attorney General for review and approval as to legality and form as required by law.
(c) The Chairperson of the Board shall submit this order and 45 Pa.B. 1367 to IRRC and the Senate and House Committees as required under the Regulatory Review Act (71 P. S. §§ 745.1—745.14).
(d) The Chairperson of the Board shall certify this order and Annex A and deposit them with the Legislative Reference Bureau as required by law.
(e) This order shall take effect on March 18, 2016.
JOHN QUIGLEY,
Chairperson(Editor's Note: See 45 Pa.B. 7350 (December 26, 2015) for IRRC's approval order).
Fiscal Note: Fiscal Note 7-493 remains valid for the final adoption of the subject regulation.
[Pa.B. Doc. No. 16-108. Filed for public inspection January 22, 2016, 9:00 a.m.]
