ation Control Act of 1978. The criteria in Appendix A of this part will be applied to such sites.

(Secs. 11e(2), 81, 83, 84, 161b, 1610, 161x, 274; Pub. L. 83-703 as amended by Title II of Pub. L. 95-604, 68 Stat. 919 et seq., 92 Stat. 3021 et seq. (42 U.S.C. 2014e(2), 2111, 2113, 2114, 2201b, 2201x, 2021))

[45 FR 65531, Oct. 3, 1980]

§ 40.3 License requirements.

No person subject to the regulations in this part shall receive title to, own, receive, possess, use, transfer, or deliver byproduct material as defined in this part or any source material after removal from its place of deposit in nature, except as authorized in a specific or general license issued by the Commission pursuant to the regulations in this part.

(Secs. 11e(2), 81, 83, 84, 161b, 1610, 161x, 274; Pub. L. 83-703 as amended by Title II of Pub. L. 95-604, 68 Stat. 919 et seq., 92 Stat. 3021 et seq. (42 U.S.C. 2014e(2), 2111, 2113, 2114, 2201b, 2201x, 2021))

[45 FR 65531, Oct. 3, 1980]

§ 40.4

Definitions.

As used in this part:

(a) "Act" means the Atomic Energy Act of 1954 (68 Stat. 919), including any amendments thereto;

(a-1) "Byproduct Material" means the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes. Underground ore bodies depleted by such solution extraction operations do not constitute "byproduct material" within this definition.

(b) "Commission" means the Nuclear Regulatory Commission or its duly authorized representatives.

ferred to the U.S. Energy Research and Development Administration and to the Administrator thereof pursuant to sections 104 (b), (c) and (d) of the Energy Reorganization Act of 1974 (Pub. L. 93-438, 88 Stat. 1233 at 1237, 42 U.S.C. 5814) and retransferred to the Secretary of Energy pursuant to section 301(a) of the Department of Energy Organization Act (Pub. L. 9591, 91 Stat. 565 at 577-578, 42 U.S.C. 7151).

(c) "Government agency" means any executive department, commission, independent establishment, corporation, wholly or partly owned by the United States of America which is an instrumentality of the United States, or any board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the Government.

(d) "License", except where otherwise specified, means a license issued pursuant to the regulations in this part.

(e) "Persons" means: (1) Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, Government agency other than the Commission or the Department of Energy except that the Department of Energy shall be considered a person within the meaning of the regulations in this part to the extent that its facilities and activities are subject to the licensing and related regulatory authority of the Commission pursuant to section 202 of the Energy Reorganization Act of 1974 (88 Stat. 1244)' and the Uranium Mill

'The Department of Energy facilities and activities identified in section 202 are:

(1) Demonstration Liquid Metal Fast Breeder reactors when operated as part of the power generation facilities of an electric utility system, or when operated in any other manner for the purpose of demonstrating the suitability for commercial application of such a reactor.

(2) Other demonstration nuclear reactors, except those in existence on January 19, 1975, when operated as part of the power generation facilities of an electric utility system, or when operated in any other manner for the purpose of demonstrating the suitability for commercial application of such a reactor.

Continued

Tailings Radiation Control Act of 1978 (92 Stat. 3021), any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any subdivision of any such government or nation, or other entity; and (2) Any legal successor, representative, agent or agency of the foregoing.

(f) "Pharmacist" means an individual registered by a state or territory of the United States, the District of Columbia or the Commonwealth of Puerto Rico to compound and dispense drugs, prescriptions and poisons.

(g) "Physician" means an individual licensed by a state or territory of the United States, the District of Columbia or the Commonwealth of Puerto Rico to dispense drugs in the practice of medicine.

(h) "Source Material" means: (1) Uranium or thorium, or any combination thereof, in any physical or chemical form or (2) ores which contain by weight one-twentieth of one percent (0.05%) or more of: (i) Uranium, (ii) thorium or (iii) any combination thereof. Source material does not include special nuclear material.

(i) "Special nuclear material" means: (1) Plutonium, uranium 233, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 51 of the Act, determines to be special nuclear material; or (2) any material artificially enriched by any of the foregoing.

(j) "United States", when used in a geographical sense, includes Puerto Rico and all territories and possessions of the United States;

(k) "Unrefined and unprocessed ore" means ore in its natural form prior to any processing, such as grinding, roasting or beneficiating, or refining.

(1) With the exception of "byproduct material" as defined in section 11e. of

(3) Facilities used primarily for the receipt and storage of high-level radioactive wastes resulting from licensed activities.

(4) Retrievable Surface Storage Facilities and other facilities authorized for the express purpose of subsequent long-term storage of high-level radioactive waste generated by the Department of Energy, which are not used for, or are part of, research and development activities.

the Act, other terms defined in section 11 of the Act shall have the same meaning when used in the regulations in this part.

(m) "Agreement State" means any State with which the Atomic Energy Commission or the Nuclear Regulatory Commission has entered into an effective agreement under subsection 274b. of the Atomic Energy Act of 1954, as amended.

(n) "Commencement of construction" means any clearing of land, excavation, or other substantial action that would adversely affect the natural environment of a site but does not include changes desirable for the temporary use of the land for public recreational uses, necessary borings to determine site characteristics or other preconstruction monitoring to establish background information related to the suitability of a site or to the protection of environmental values.

(0) "Depleted uranium" means the source material uranium in which the isotope uranium-235 is less than 0.711 weight percent of the total uranium present. Depleted uranium does not include special nuclear material.

(p) "Uranium Milling" means any activity that results in the production of byproduct material as defined in this part.

(q) "Effective kilogram" means (1) for the source material uranium in which the uranium isotope uranium235 is greater than 0.005 (0.5 weight percent) of the total uranium present: 10,000 kilograms, and (2) for any other source material: 20,000 kilograms.

(Secs. 11e(2), 81, 83, 84, 161b, 1610, 174; Pub. L. 83-703, 68 Stat. 948 et seq. (42 U.S.C. 2014e(2), 2111, 2113, 2114, 2201b, 2021); sec. 161, Pub. L. 83-703, 68 Stat. 948 (42 U.S.C. 2201); sec. 201, as amended, Pub. L. 93-438, 88 Stat. 1242 (42 U.S.C. 5841))

[26 FR 284, Jan. 14, 1961, as amended at 30 FR 15285, Dec. 10, 1965; 31 FR 15145, Dec. 2, 1966; 37 FR 5747, Mar. 21, 1972; 40 FR 8787, Mar. 3, 1975; 41 FR 53331, Dec. 6, 1976; 44 FR 50013, Aug. 24, 1979; 44 FR 55327, Sept. 26, 1979; 45 FR 14200, Mar. 5, 1980; 45 FR 18905, Mar. 24, 1980; 45 FR 50710, July 31, 1980]

program as provided in paragraph (b) of this section, any communication or report concerning the regulations in this part and any application filed under these regulations may be submitted to the Commission as follows:

(1) By mail addressed to-Director of Nuclear Material, Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555.

(2) By delivery in person to the Commission offices at

(i) 1717 H Street, NW, Washington, DC; or

(ii) 7915 Eastern Ave., Willste Bldg., Silver Spring, Maryland.

(b) The Commission is conducting a regional licensing program for selected parts of its material licensing program. Any communication, report, or application covered under the Commission's regional licensing program for Regions I and III must be submitted as specified in paragraph (b)(2) of this section.

(1) The regional licensing program includes

(i) All licenses for the medical use of radioisotopes except teletherapy sources and nuclear powered pacemakers;

(ii) All academic licenses except irradiators;

(iii) All industrial licenses authorizing research and development;

(iv) Licenses for the industrial use of stationary and portable gauges; and

(v) Licenses of sources contained in gas chromatographs and x-ray fluorescence analyzers.

(2) The following regions are participating in the regional licensing program.

(i) Region I. With the exception of Federal facilities and the District of Columbia, the regional licensing program involves the following Region I Non-Agreement States: Connecticut, Delaware, Maine, Massachusetts, New Jersey, Pennsylvania, and Vermont. All inquiries and each application for a new license or an amendment or renewal of an existing license specified in paragraph (b)(1) of this section may be sent to-U.S. Nuclear Regulatory Commission, Region I, Material Licensing Section, 631 Park Avenue, King of Prussia, Pennsylvania 19406.

(ii) Region III. With the exception of Federal facilities, the regional licensing program involves the following states: Illinois, Indiana, Iowa, Michigan, Minnesota, Missouri, Ohio, and Wisconsin. All inquiries and each application for a new license or an amendment or renewal of an existing license specified in paragraph (b)(1) of this section may be sent to-U.S. Nuclear Regulatory Commission, Region III, Radioisotopes Licensing Section, 799 Roosevelt Road, Glen Ellyn, Illinois 60137.

[46 FR 44419, Sept. 4, 1981]

§ 40.6 Interpretations.

Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized to be binding upon the Commission.

EXEMPTIONS § 40.11 Persons using source material under certain Department of Energy and Nuclear Regulatory Commission contracts.

Except to the extent that Department facilities or activities of the types subject to licensing pursuant to section 202 of the Energy Reorganization Act of 1974 or the Uranium Mill Tailings Radiation Control Act of 1978 are involved, any prime contractor of the Department is exempt from the requirements for a license set forth in sections 62, 63, and 64 of the Act and from the regulations in this part to the extent that such contractor, under his prime contract with the Department, receives, possesses, uses, transfers or delivers source material for: (a) The performance of work for the Department at a United States Government-owned or controlled site, including the transportation of source material to or from such site and the performance of contract services during temporary interruptions of such transportation; (b) research in, or development, manufacture, storage, testing or transportation of, atomic weapons or components thereof; or (c) the use or

operation of nuclear reactors or other nuclear devices in a United States Government-owned vehicle or vessel. In addition to the foregoing exemptions, and subject to the requirement for licensing of Department facilities and activities pursuant to section 202 of the Energy Reorganization Act of 1974 or the Uranium Mill Tailings Radiation Control Act of 1980, any prime contractor or subcontractor of the Department or the Commission is exempt from the requirements for a license set forth in sections 62, 63, and 64 of the Act and from the regulations in this part to the extent that such prime contractor or subcontractor receives, possesses, uses, transfers or delivers source material under his prime contract or subcontract when the Commission determines that the exemption of the prime contractor or subcontractor is authorized by law; and that, under the terms of the contract or subcontract, there is adequate assurance that the work thereunder can be accomplished without undue risk to the public health and safety. (Sec. 161, as amended, Pub. L. 83-703, 68 Stat. 948 (42 U.S.C. 2201); sec. 201, as amended, Pub. L. 93-438, 88 Stat. 1243 (42 U.S.C. 5841); secs. 11e(2), 81, 83, 84, 161b, 1610, 161x, 274; Pub. L. 83-703 as amended by Title II of Pub. L. 95-604, 68 Stat. 919 et seq., 92 Stat. 3021 et seq. (42 U.S.C. 2014e(2), 2111, 2113, 2114, 2201b, 2201x, 2021))

[40 FR 8787, Mar. 3, 1975, as amended at 43 FR 6923, Feb. 17, 1978; 45 FR 65531, Oct. 3, 1980]

§ 40.12 Carriers.

Common and contract carriers, freight forwarders, warehousemen, and the U.S. Postal Service are exempt from the regulations in this part and the requirements for a license set forth in section 62 of the Act to the extent that they transport or store source material in the regular course of carriage for another or storage incident thereto.

[37 FR 3985, Feb. 25, 1972]

§ 40.13 Unimportant quantities of source material.

(a) Any person is exempt from the regulations in this part and from the requirements for a license set forth in section 62 of the Act to the extent

that such person receives, possesses, uses, transfers or delivers source material in any chemical mixture, compound, solution, or alloy in which the source material is by weight less than one-twentieth of 1 percent (0.05 percent) of the mixture, compound, solution or alloy. The exemption contained in this paragraph does not include byproduct material as defined in this part.

(b) Any person is exempt from the regulations in this part and from the requirements for a license set forth in section 62 of the act to the extent that such person receives, possesses, uses, or transfers unrefined and unprocessed ore containing source material; provided, that, except as authorized in a specific license, such person shall not refine or process such ore.

(c) Any person is exempt from the regulation in this part and from the requirements for a license set forth in section 62 of the Act to the extent that such person receives, possesses, uses, or transfers:

(1) Any quantities of thorium contained in (i) incandescent gas mantles, (ii) vacuum tubes, (iii) welding rods, (iv) electric lamps for illuminating purposes: Provided, That each lamp does not contain more than 50 milligrams of thorium, (v) germicidal lamps, sunlamps, and lamps for outdoor or industrial lighting: Provided, That each lamp does not contain more than 2 grams of thorium, (vi) rare earth metals and compounds, mixtures, and products containing not more than 0.25 percent by weight thorium, uranium, or any combination of these, or (vii) personnel neutron dosimeters: Provided, That each dosimeter does not contain more than 50 milligrams of thorium.

(2) Source material contained in the following products: (i) Glazed ceramic tableware, provided that the glaze contains not more than 20 percent by weight source material; (ii) piezoelectric ceramic containing not more than 2 percent by weight source material; (iii) glassware, glass enamel, and glass enamel frit containing not more than 10 percent by weight source material; but not including commercially manufactured glass brick, pane glass, ceram

ic tile, or other glass, glass enamel or ceramic used in construction;

(3) Photographic film, negatives, and prints containing uranium or thorium;

(4) Any finished product or part fabricated of, or containing tungsten or magnesium-thorium alloys, provided that the thorium content of the alloy does not exceed 4 percent by weight and that the exemption contained in this subparagraph shall not be deemed to authorize the chemical, physical or metallurgical treatment or processing of any such product or part; and

(5) Uranium contained in counterweights installed in aircraft, rockets, projectiles, and missiles, or stored or handled in connection with installation or removal of such counterweights: Provided, That:

(i) The counterweights are manufactured in accordance with a specific license issued by the Commission or the Atomic Energy Commission authorizing distribution by the licensee pursuant to this paragraph;

(ii) Each counterweight has been impressed with the following legend clearly legible through any plating or other covering: "Depleted Uranium";'

(iii) Each counterweight is durably and legibly labeled or marked with the identification of the manufacturer, and the statement: "Unauthorized Alterations Prohibited";' and

(iv) The exemption contained in this paragraph shall not be deemed to authorize the chemical, physical, or metallurgical treatment or processing of any such counterweights other than repair or restoration of any plating or other covering.

(6) Natural or depleted uranium metal used as shielding constituting part of any shipping container: Provided, That:

(i) The shipping container is conspicuously and legibly impressed with the legend "CAUTION-RADIOACTIVE SHIELDING-URANIUM"; and

The requirements specified in paragraphs (c)(5) (ii) and (iii) of this section need not be met by counterweights manufactured prior to Dec. 31, 1969: Provided, That such counterweights were manufactured under a specific license issued by the Atomic Energy Commission and were impressed with the legend required by $ 40.13(c)(5)(ii) in effect on June 30, 1969.

(ii) The uranium metal is encased in mild steel or equally fire resistant metal of minimum wall thickness of one-eighth inch (3.2 mm).

(7) Thorium contained in finished optical lenses, provided that each lens does not contain more than 30 percent by weight of thorium; and that the exemption contained in this subparagraph shall not be deemed to authorize either:

(i) The shaping, grinding or polishing of such lens or manufacturing processes other than the assembly of such lens into optical systems and devices without any alteration of the lens; or

(ii) The receipt, possession, use. transfer, or of thorium contained in contact lenses, or in spectacles, or in eyepieces in binoculars or other optical instruments.

(8) Thorium contained in any finished aircraft engine part containing nickel-thoria alloy, Provided, That:

(i) The thorium is dispersed in the nickel-thoria alloy in the form of finely divided thoria (thorium dioxide); and

(ii) The thorium content in the nickel-thoria alloy does not exceed 4 percent by weight.

(9) The exemptions in this paragraph (c) do not authorize the manufacture of any of the products described.

(d) Any person is exempt from the regulations in this part and from the requirements for a license set forth in section 62 of the Act to the extent that such person receives, possesses, uses, or transfers uranium contained in detector heads for use in fire detection units, provided that each detector head contains not more than 0.005 microcurie of uranium. The exemption in this paragraph does not authorize the manufacture of any detector head containing uranium.

(Sec. 201, Pub. L. 93-438, 88 Stat. 1242 (42 U.S.C. 5841); secs. 11e(2), 81, 83, 84, 161b, 1610, 161x, 274; Pub. L. 83-703 as amended by Title II of Pub. L. 95-604, 68 Stat. 919 et seq., 92 Stat. 3021 et seq. (42 U.S.C. 2014e(2), 2111, 2113, 2114, 2201b, 2201x, 2021)) [26 FR 284, Jan. 14, 1961, as amended at 26 FR 10929, Nov. 22, 1961; 28 FR 8021, Aug. 7, 1963; 28 FR 14309, Dec. 27, 1963; 30 FR 15802, Dec. 22, 1965; 32 FR 15873, Nov. 18,