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Code · REGISTER · 2007-10-19 · Agency Agency for Healthcare Research and Quality NOTICES Agency information collection activities; proposals, submissions, and approvals, 59292-59293 07-5156 Agricultural Agricultural Marketing Servi · Unknown

Unknown. Final rule

11,804 words·~54 min read·/register/2007/10/19/07-5120·

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--- schema: federal-register doc_type: fedreg source_file: FR-2007-10-19.xml --- 72 202 Friday, October 19, 2007 Contents Agency Agency for Healthcare Research and Quality NOTICES Agency information collection activities; proposals, submissions, and approvals, 59292-59293 07-5156 Agricultural Agricultural Marketing Service RULES Raisins produced from grapes grown in California, 59153-59157 E7-20621 Agriculture Agriculture Department See Agricultural Marketing Service See Animal and Plant Health Inspection Service See Farm Service Agency See Forest Service Animal Animal and Plant Health Inspection Service NOTICES Plant-related quarantine, foreign:
Eggplant, okra, and peppers from Ghana; importation permits, 59239 E7-20674 Husked, silk-free baby corn from Kenya; importation permits, 59239-59240 E7-20677 Peeled baby carrots from Kenya; importation permits issuance, 59240-59241 E7-20678 Ribes species fruits from South Africa; importation permits, 59241-59242 E7-20675 Blind Blind or Severely Disabled, Committee for Purchase From People Who Are See Committee for Purchase From People Who Are Blind or Severely Disabled Centers Centers for Disease Control and Prevention NOTICES Meetings:
National Center for Environmental Health/Agency for Toxic Substances and Disease Registry— Scientific Counselors Board, 59293 E7-20629 Centers Centers for Medicare & Medicaid Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 59293-59294 E7-20649 Children Children and Families Administration NOTICES Meetings: People with Intellectual Disabilities, President's Committee, 59294-59295 E7-20617 Coast Guard Coast Guard NOTICES Meetings:
Commercial Fishing Industry Vessel Safety Advisory Committee, 59299-59300 E7-20660 Commerce Commerce Department See Economic Development Administration See Industry and Security Bureau See National Oceanic and Atmospheric Administration Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement list; additions and deletions, 59251-59253 E7-20637 E7-20638 Commodity Commodity Futures Trading Commission NOTICES Meetings; Sunshine Act, 07-5178 07-5179 59258-59259 07-5180 07-5181 07-5182 07-5183 Consumer Consumer Product Safety Commission NOTICES Settlement agreements:
Cummins Industrial Tools, 59259-59260 07-5152 Defense Defense Department NOTICES Arms sales notification; transmittal letter, etc., 59260-59265 07-5112 Senior Executive Service Performance Review Board; membership, 59265 07-5165 Economic Economic Development Administration NOTICES Grants and cooperative agreements; availability, etc.: National Technical Assistance, Training, Research and Evaluation Program, 59253-59256 E7-20627 Education Education Department NOTICES Agency information collection activities; proposals, submissions, and approvals; correction, 59265-59266 E7-20427 E7-20673 Reports and guidance documents; availability, etc.:
Racial and ethnic data standards; collection and reporting requirements, 59266-59279 E7-20613 Employment Employment and Training Administration NOTICES Adjustment assistance; applications, determinations, etc.: Tweel Home Furnishings, 59309 E7-20590 Energy Energy Department See Energy Information Administration See Federal Energy Regulatory Commission NOTICES Meetings: National Coal Council, 59279 E7-20665 Energy Energy Information Administration NOTICES Agency information collection activities; proposals, submissions, and approvals, 59279-59281 E7-20682 EPA Environmental Protection Agency RULES Air programs:
Clean Air Interstate Rule etc.— Cogeneration unit; definition, 59190-59207 E7-20447 Air quality implementation plans; approval and promulgation; various States; air quality planning purposes; designation of areas: Indiana, 59210-59213 E7-20569 Pennsylvania, 59213-59216 E7-20567 Virginia, 59207-59210 E7-20568 NOTICES Agency information collection activities; proposals, submissions, and approvals, 59283-59286 E7-20653 E7-20663 Environmental statements; availability, etc.: Agency comment availability, 59286 E7-20657 Agency weekly receipts, 59286-59287 E7-20631 Meetings:
Environmental Policy and Technology Advisory Council, 59287 07-5166 Science Advisory Board, 59287-59288 E7-20671 Solid wastes: Municipal solid waste landfill permit programs; adequacy determinations: California, 59288-59289 E7-20652 Executive Executive Office of the President See Presidential Documents Export Export-Import Bank NOTICES Agency information collection activities; proposals, submissions, and approvals, 59289 07-5167 Farm Farm Service Agency NOTICES Grants and cooperative agreements; availability, etc.:
American Indian Credit Outreach Initiative, 59242-59246 E7-20624 FAA Federal Aviation Administration PROPOSED RULES Airworthiness directives: Eclipse Aviation Corp., 59225-59227 E7-20630 Eurocopter France, 59229-59231 E7-20684 MD Helicopters, Inc., 59227-59229 E7-20680 NOTICES Exemption petitions; summary and disposition, 59332 E7-20661 FBI Federal Bureau of Investigation NOTICES Meetings: National Crime Prevention and Privacy Compact Council, 59309 07-5154 FDIC Federal Deposit Insurance Corporation NOTICES Agency information collection activities; proposals, submissions, and approvals, 59289-59290 E7-20584 Federal Election Federal Election Commission NOTICES Meetings;
Sunshine Act, 59290-59291 07-5209 Federal Energy Federal Energy Regulatory Commission NOTICES Electric rate and corporate regulation combined filings, 59281-59283 E7-20622 E7-20623 Federal Mine Federal Mine Safety and Health Review Commission NOTICES Meetings; Sunshine Act, 59313-59314 07-5191 Federal Motor Federal Motor Carrier Safety Administration NOTICES Motor carrier safety standards: Driver qualifications; diabetes exemptions, 59332-59333 E7-20651 Federal Railroad Federal Railroad Administration RULES Railroad locomotive safety standards:
Locomotives with inoperative sanders; additional flexibility in use, 59216-59224 E7-20656 Federal Reserve Federal Reserve System NOTICES Agency information collection activities; proposals, submissions, and approvals, 59291 E7-20620 Financial Financial Management Service See Fiscal Service Fiscal Fiscal Service RULES Financial Management Service: Treasury Tax and Loan Program; reorganization and enhancement, 59177-59187 07-5135 Fish Fish and Wildlife Service NOTICES Endangered and threatened species:
Recovery plans— Rota bridled white-eye, 59301-59302 E7-20628 Survival enhancement permits— Logan County, KS; black-footed ferret, 59302-59303 E7-20669 Food Food and Drug Administration RULES Medical devices: General hospital and personal use devices— Remote medication management system; classification, 59175-59177 E7-20633 NOTICES Agency information collection activities; proposals, submissions, and approvals, E7-20632 59295-59297 E7-20662 Reports and guidance documents; availability, etc.:
Mechanical Calibration of Dissolution Apparatus 1 and 2; current good manufacturing practice; industry guidance, 59298-59299 E7-20664 Remote medication management system; class II special controls; agency guidance, 59297-59298 E7-20635 Forest Forest Service RULES National Forest System timber; sale and disposal: Contract modifications in extraordinary conditions; noncompetitive sale, 59187-59190 E7-20625 NOTICES Environmental statements; notice of intent: Ochoco National Forest, OR, 59246 07-5169 National Forest System lands:
Special use permits; directives and insurance requirements, 59246-59251 E7-20659 Health Health and Human Services Department See Agency for Healthcare Research and Quality See Centers for Disease Control and Prevention See Centers for Medicare & Medicaid Services See Children and Families Administration See Food and Drug Administration See Substance Abuse and Mental Health Services Administration Homeland Homeland Security Department See Coast Guard See U.S. Citizenship and Immigration Services See U.S.
Customs and Border Protection Housing Housing and Urban Development Department RULES Manufactured home construction and safety standards: Model manufactured home installation standards; establishment, 59338-59395 07-5004 NOTICES Homeless assistance; excess and surplus Federal properties, 59301 07-5105 Indian Indian Affairs Bureau NOTICES Environmental statements; availability, etc.: Coeur d’Alene Tribal Integrated Resource Management Plan, Coeur d’Alene Reservation, ID, 59303 E7-20683 Industry Industry and Security Bureau RULES Export administration regulations:
Authorization Validated End-User; list of approved end-users, eligible items and destinations— China, 59164-59166 E7-20642 PROPOSED RULES Export administration regulations: Commerce Control List— Export and reexport license applications, classification requests, encryption review requests, etc.; mandatory electronic filing, 59231-59238 E7-20655 Interior Interior Department See Fish and Wildlife Service See Indian Affairs Bureau See Land Management Bureau See National Park Service Justice Justice Department See Federal Bureau of Investigation NOTICES Pollution control; consent judgments:
Power Poles, Inc., 59309 07-5153 Labor Labor Department See Employment and Training Administration See Mine Safety and Health Administration Land Land Management Bureau NOTICES Realty actions; sales, leases, etc.: New Mexico, 59303-59304 E7-20618 Survey plat filings: Arizona, 59304-59307 E7-20667 Withdrawal and reservation of lands: Idaho, 59307 E7-20654 Legal Legal Services Corporation NOTICES Meetings; Sunshine Act, 59311-59313 07-5208 Mine Mine Safety and Health Administration NOTICES Petitions for safety standards modification; application, processing, disposition, etc., 59309-59311 E7-20650 Mine Mine Safety and Health Federal Review Commission See Federal Mine Safety and Health Review Commission National Highway National Highway Traffic Safety Administration RULES Confidential business information, 59434-59470 E7-20368 NOAA National Oceanic and Atmospheric Administration RULES Fishery conservation and management:
Northeastern United States fisheries— Atlantic surfclam and ocean quahog, 59224 E7-20639 NOTICES Meetings: Pacific Fishery Management Council, 59256-59257 E7-20589 South Atlantic Fishery Management Council, 59257-59258 E7-20588 National Park National Park Service NOTICES Committees; establishment, renewal, termination, etc.: Route 66 Corridor Preservation Program Advisory Council, 59307-59308 07-5164 Environmental statements; availability, etc.: Padre Island National Seashore, TX; plan of operations, 59308 07-5207 Meetings:
Alaska Region Subsistence Resource Commissions, 59308 E7-20626 Nuclear Nuclear Regulatory Commission RULES Organization, functions, and authority delegations: Regulatory transition plan; expanded definition of bproduct material, 59157-59162 07-5120 Radiation protection standards: National Source Tracking System; source transactions and initial source inventory information; reporting requirements, 59162-59163 E7-20591 NOTICES Reports and guidance documents; availability, etc.:
Operator licensing examination standards for power reactors, etc., 59314 E7-20676 Personnel Personnel Management Office NOTICES Meetings: Federal Prevailing Rate Advisory Committee, 59314-59315 E7-20646 Presidential Presidential Documents ADMINISTRATIVE ORDERS Colombia; continuation of emergency with respect to narcotics traffickers (Notice of October 18, 2007), 59471-59474 07-5222 Public Public Debt Bureau See Fiscal Service Saint Lawrence Saint Lawrence Seaway Development Corporation NOTICES Meetings:
Advisory Board, 59333-59334 E7-20645 SEC Securities and Exchange Commission NOTICES Self-regulatory organizations; proposed rule changes: Chicago Board Options Exchange, Inc., 59315-59316 E7-20619 Chicago Stock Exchange, Inc., 59316-59317 E7-20586 Financial Industry Regulatory Authority, Inc., 59317-59329 E7-20585 E7-20601 NYSE Arca, Inc., 59329-59331 E7-20587 Social Social Security Administration RULES Social security benefits: Federal old age, survivors, and disability insurance— Digestive system impairments; medical criteria evaluation, 59398-59431 E7-20235 State State Department NOTICES Committees; establishment, renewal, termination, etc.:
Industry Advisory Panel, 59331 E7-20641 Meetings: Overseas Security Advisory Council, 59331 E7-20640 Private International Law Advisory Committee, 59331-59332 E7-20647 Senior Executive Service Performance Review Board; membership, 59332 E7-20643 Substance Substance Abuse and Mental Health Services Administration NOTICES Senior Executive Service Performance Review board, 59299 07-5158 Transportation Transportation Department See Federal Aviation Administration See Federal Motor Carrier Safety Administration See Federal Railroad Administration See National Highway Traffic Safety Administration See Saint Lawrence Seaway Development Corporation Treasury Treasury Department See Fiscal Service See United States Mint MISSING FOR:
U.S. Citizenship and Immigration Services U.S. Citizenship and Immigration Services NOTICES Agency information collection activities; proposals, submissions, and approvals, 59300-59301 E7-20614 Customs U.S. Customs and Border Protection RULES Organization, functions, and authority delegations: U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection; agency name changes Technical corrections, 59166-59175 E7-20471 U.S. Mint United States Mint NOTICES American eagle gold proof coins; price change, 59334 E7-20616 Meetings:
Notification of Citizens Coinage Advisory Committee, 59334 E7-20615 Veterans Veterans Affairs Department NOTICES Meetings: Clinical Science Research and Development Service Cooperative Studies Scientific Merit Review Board, 59334-59335 07-5162 Minority Veterans Advisory Committee, 59335 07-5163 OIF/OEFF Veterans and Families Advisory Committee, 59335 07-5161 Separate Parts In This Issue Part II Housing and Urban Development Department, 59338-59395 07-5004 Part III Social Security Administration, 59398-59431 E7-20235 Part IV Transportation Department, National Highway Traffic Safety Administration, 59434-59470 E7-20368 Part V Executive Office of the President, Presidential Documents, 59471-59474 07-5222 Reader Aids Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents LISTSERV electronic mailing list, go to http://listserv.access.gpo.gov and select Online mailing list archives, FEDREGTOC-L, Join or leave the list (or change settings); then follow the instructions. 72 202 Friday, October 19, 2007 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 989 [Docket No. AMS-FV-07-0027; FV07-989-1 FIR] Raisins Produced From Grapes Grown in California; Final Free and Reserve Percentages for 2006-07 Crop Natural (sun-dried) Seedless Raisins AGENCY:
Agricultural Marketing Service, USDA. ACTION: Final rule. SUMMARY: The Department of Agriculture
(USDA)is adopting, as a final rule, without change, an interim final rule that established final volume regulation percentages for 2006-07 crop Natural (sun-dried) Seedless
(NS)raisins covered under the Federal marketing order for California raisins (order). The order regulates the handling of raisins produced from grapes grown in California and is locally administered by the Raisin Administrative Committee (Committee). The volume regulation percentages are 90 percent free and 10 percent reserve. The percentages are intended to help stabilize raisin supplies and prices, and strengthen market conditions. DATES: *Effective Date:* November 19, 2007. The volume regulation percentages apply to acquisitions of NS raisins from the 2006-07 crop until the reserve raisins from that crop are disposed of under the marketing order. FOR FURTHER INFORMATION CONTACT: Rose M. Aguayo, Marketing Specialist, or Kurt J. Kimmel, Regional Manager, California Marketing Field Office, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA; Telephone:
(559)487-5901; Fax:
(559)487-5906; or E-mail: *Rose.Aguayo@usda.gov* or *Kurt.Kimmel@usda.gov* . Small businesses may request information on complying with this regulation by contacting Jay Guerber, Marketing Order Administration Branch, Fruit and Vegetable Programs, AMS, USDA, 1400 Independence Avenue SW., STOP 0237, Washington, DC 20250-0237; Telephone:
(202)720-2491; Fax:
(202)720-8938; or E-mail: *Jay.Guerber@usda.gov* . SUPPLEMENTARY INFORMATION: This rule is issued under Marketing Agreement and Order No. 989, both as amended (7 CFR part 989), regulating the handling of raisins produced from grapes grown in California, hereinafter referred to as the “order.” The order is effective under the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act.” USDA is issuing this rule in conformance with Executive Order 12866. This rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under the order provisions now in effect, final free and reserve percentages may be established for raisins acquired by handlers during the crop year. This rule continues in effect the action that established final free and reserve percentages for NS raisins for the 2006-07 crop year, which began August 1, 2006, and ended July 31, 2007. This rule will not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this rule. The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed not later than 20 days after the date of the entry of the ruling. This rule continues in effect the action that established final volume regulation percentages for 2006-07 crop NS raisins covered under the order. The volume regulation percentages are 90 percent free and 10 percent reserve and were established through an interim final rule published on April 9, 2007 (72 FR 17362). Free tonnage raisins may be sold by handlers to any market. Reserve raisins must be held in a pool for the account of the Committee and are disposed of through various programs authorized under the order. For example, reserve raisins may be sold by the Committee to handlers for free use or to replace part of the free tonnage raisins they exported; used in diversion programs; carried over as a hedge against a short crop; or disposed of in other outlets not competitive with those for free tonnage raisins, such as government purchase, distilleries, or animal feed. The volume regulation percentages are intended to help stabilize raisin supplies and prices, and strengthen market conditions. The Committee unanimously recommended final percentages for NS raisins on November 21, 2006. Computation of Trade Demands Section 989.54 of the order prescribes procedures and time frames to be followed in establishing volume regulation. This includes methodology used to calculate percentages. Pursuant to § 989.54(a) of the order, the Committee met on August 15, 2006, to review shipment and inventory data, and other matters relating to the supplies of raisins of all varietal types. The Committee computed a trade demand for each varietal type for which a free tonnage percentage might be recommended. Trade demand is computed using a formula specified in the order and, for each varietal type, is equal to 90 percent of the prior year's shipments of free tonnage and reserve tonnage raisins sold for free use into all market outlets, adjusted by subtracting the carryin on August 1 of the current crop year, and adding the desirable carryout at the end of that crop year. As specified in § 989.154(a), the desirable carryout for NS raisins shall equal the total shipments of free tonnage during August and September for each of the past 5 crop years, converted to a natural condition basis, dropping the high and low figures, and dividing the remaining sum by three, or 60,000 natural condition tons, whichever is higher. For all other varietal types, the desirable carryout shall equal the total shipments of free tonnage during August, September and one-half of October for each of the past 5 crop years, converted to a natural condition basis, dropping the high and low figures, and dividing the remaining sum by three. In accordance with these provisions, the Committee computed and announced the 2006-07 trade demand for NS raisins at 219,870 tons as shown below. Computed Trade Demand [Natural condition tons] NS Raisins Prior year's shipments 301,460 Multiplied by 90 percent 0.90 Equals adjusted base 271,314 Minus carryin inventory 111,444 Plus desirable carryout 60,000 Equals computed NS trade demand 219,870 Computation of Preliminary Volume Regulation Percentages Section 989.54(b) of the order requires that the Committee announce, on or before October 5, preliminary crop estimates and determine whether volume regulation is warranted for the varietal types for which it computed a trade demand. That section allows the Committee to extend the October 5 date up to 5 business days if warranted by a late crop. The Committee met on September 6, 2006, and announced preliminary percentages for Zante Currant raisins. It met again on October 4, 2006, and announced preliminary percentages and a preliminary crop estimate for NS raisins of 259,557 tons, which is about 21 percent lower than the 10-year average of 327,410 tons. NS raisins are the major varietal type of California raisin. Adding the carryin inventory of 111,444 tons to the 259,557-ton crop estimate, plus an additional 31,975 tons of reserve raisins released to handlers for free use in August 2006, resulted in a total available supply of 402,976 tons, which was significantly higher (183 percent) than the 219,870-ton trade demand. Thus, the Committee determined that volume regulation for NS raisins was warranted. The Committee announced preliminary free and reserve percentages for NS raisins, which released 85 percent of the computed trade demand since a minimum field price (price paid by handlers to producers for their free tonnage raisins) had been established. The preliminary percentages were 72 percent free and 28 percent reserve. In addition, preliminary percentages were announced for Dipped Seedless, Golden Seedless, and Other Seedless raisins. It was ultimately determined at Committee meetings held on November 21, 2006, and January 23, 2007, that volume regulation was only warranted for NS raisins. As in past seasons, the Committee submitted its marketing policy to USDA for review. Computation of Final Volume Regulation Percentages Pursuant to § 989.54(c), at its November 21, 2006, meeting, the Committee announced interim percentages for NS raisins to release slightly less than the full trade demand. Based on a revised NS crop estimate of 244,300 tons (down from the October estimate of 259,557 tons), interim percentages for NS raisins were announced at 89.75 percent free and 10.25 percent reserve. Pursuant to § 989.54(d), the Committee also recommended final percentages at its November 21, 2006, meeting to release the full trade demand for NS raisins. Final percentages were recommended at 90 percent free and 10 percent reserve. The Committee's calculations and determinations to arrive at final percentages for NS raisins are shown in the table below: Final Volume Regulation Percentages [Natural condition tons] NS Raisins Trade demand 219,870 Divided by crop estimate 244,300 Equals the free percentage 90.00 100 minus free percentage equals the reserve percentage 10.00 By the end of the crop year, final deliveries of NS raisins totaled 282,999 tons. Thus, handlers were provided with an additional 63,129 tons over the computed trade demand, but the additional tonnage did not appear to impact marketing conditions. In addition, USDA's “Guidelines for Fruit, Vegetable, and Specialty Crop Marketing Orders” (Guidelines) specify that 110 percent of recent years' sales should be made available to primary markets each season for marketing orders utilizing reserve pool authority. This goal was met for NS raisins by the establishment of final percentages, which released 100 percent of the trade demand and the offer of additional reserve raisins for sale to handlers under the “10 plus 10 offers.” As specified in § 989.54(g), the 10 plus 10 offers are two offers of reserve pool raisins which are made available to handlers during each season. For each such offer, a quantity of reserve raisins equal to 10 percent of the prior year's shipments is made available for free use. Handlers may sell their 10 plus 10 raisins to any market. Based on 2005-06 NS shipments of 301,460 natural condition tons, 30,146 tons should have been made available in each of the 10 plus 10 offers, or a total of 60,292 tons. However, this amount was not available in the reserve. Thus, all available reserve pool raisins were offered to handlers for free use through the 10 plus 10 offers. The first 10 plus 10 offer was made in February 2007. A total of 30,146 tons was made available to raisin handlers; all the raisins were purchased and released to handlers during the 2006-07 crop year. The second offer was made in July 2007. A total of 20,923 tons (the balance of the reserve pool) was made available to handlers; 14,793 tons were purchased and released to handlers in 2007-08. Adding the 30,146 tons of 10 plus 10 reserve raisins to the 219,870 ton trade demand figure, plus the 111,444 tons of 2005-06 carryin NS inventory, plus the 31,975 tons of 10 plus 10 raisins released to handlers in August 2006, equates to 393,435 tons of natural condition raisins, or 370,686 tons of packed raisins, that were available to handlers for free use or primary markets. This is about 130 percent of the quantity of NS raisins shipped during the 2005-06 crop year (301,460 natural condition tons or 284,030 packed tons). In addition to the 10 plus 10 offers, § 989.67(j) of the order provides authority for sales of reserve raisins to handlers under certain conditions such as a national emergency, crop failure, change in economic or marketing conditions, or if free tonnage shipments in the current crop year exceed shipments during a comparable period of the prior crop year. Such reserve raisins may be sold by handlers to any market. When implemented, the additional offers of reserve raisins make even more raisins available to primary markets, which is consistent with USDA's Guidelines. Final Regulatory Flexibility Analysis Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA), the Agricultural Marketing Service
(AMS)has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis. The purpose of the RFA is to fit regulatory actions to the scale of business subject to such actions in order that small businesses will not be unduly or disproportionately burdened. Marketing orders issued pursuant to the Act, and rules issued thereunder, are unique in that they are brought about through group action of essentially small entities acting on their own behalf. There are approximately 23 handlers of California raisins who are subject to regulation under the order and approximately 4,000 raisin producers in the regulated area. Small agricultural service firms are defined by the Small Business Administration
(SBA)(13 CFR 121.201) as those having annual receipts of less than $6,500,000, and small agricultural producers are defined as those having annual receipts of less than $750,000. No more than 10 handlers, and a majority of producers, of California raisins may be classified as small entities. Thirteen of the 23 handlers subject to regulation have annual sales estimated to be at least $6,500,000, and the remaining 10 handlers have sales less than $6,500,000. Since 1949, the California raisin industry has operated under a Federal marketing order. The order contains authority to, among other things, limit the portion of a given year's crop that can be marketed freely in any outlet by raisin handlers. This volume control mechanism is used to stabilize supplies and prices and strengthen market conditions. If the primary market (the normal domestic market) is over-supplied with raisins, grower prices decline substantially. Pursuant to § 989.54(d) of the order, this rule continues in effect the action that established final volume regulation percentages for 2006-07 crop NS raisins. The volume regulation percentages are 90 percent free and 10 percent reserve. Free tonnage raisins may be sold by handlers to any market. Reserve raisins must be held in a pool for the account of the Committee and are disposed of through certain programs authorized under the order. Volume regulation was warranted this season because acquisitions of 282,999 tons through July 31, 2007, combined with the carryin inventory of 111,444 tons, plus 31,975 tons of 10 plus 10 reserve raisins that were released to handlers in August 2006, resulted in a total available supply of 426,418 tons, which is about 194 percent higher than the 219,870 ton trade demand. The volume regulation procedures have helped the industry address its marketing problems by keeping supplies in balance with domestic and export market needs, and strengthening market conditions. The volume regulation procedures fully supply the domestic and export markets, provide for market expansion, and help reduce the burden of oversupplies in the domestic market. Raisin grapes are a perennial crop, so production in any year is dependent upon plantings made in earlier years. The sun-drying method of producing raisins involves considerable risk because of variable weather patterns. Even though the product and the industry are viewed as mature, the industry has experienced considerable change over the last several decades. Before the 1975-76 crop year, more than 50 percent of the raisins were packed and sold directly to consumers. Now, about 64 percent of raisins are sold in bulk. This means that raisins are now sold to consumers mostly as an ingredient in another product such as cereal and baked goods. In addition, for a few years in the early 1970s, over 50 percent of the raisin grapes were sold to the wine market for crushing. Since then, the percent of raisin-variety grapes sold to the wine industry has decreased. California's grapes are classified into three groups—table grapes, wine grapes, and raisin-variety grapes. Raisin-variety grapes are the most versatile of the three types. They can be marketed as fresh grapes, crushed for juice in the production of wine or juice concentrate, or dried into raisins. Annual fluctuations in the fresh grape, wine, and concentrate markets, as well as weather-related factors, cause fluctuations in raisin supply. This type of situation introduces a certain amount of variability into the raisin market. Although the size of the crop for raisin-variety grapes may be known, the amount dried for raisins depends on the demand for crushing. This makes the marketing of raisins a more difficult task. These supply fluctuations can result in producer price instability and disorderly market conditions. Volume regulation is helpful to the raisin industry because it lessens the impact of such fluctuations and contributes to orderly marketing. For example, producer prices for NS raisins remained fairly steady between the 1993-94 through the 1997-98 seasons, although production varied. As shown in the table below, during those years, production varied from a low of 272,063 tons in 1996-97 to a high of 387,007 tons in 1993-94. According to Committee data, the total producer return per ton during those years, which includes proceeds from both free tonnage plus reserve pool raisins, has varied from a low of $904.60 in 1993-94 to a high of $1,049.20 in 1996-97. Total producer prices for the 1998-99 and 1999-2000 seasons increased significantly due to back-to-back short crops during those years. Record large crops followed and producer prices dropped dramatically for the 2000-01 through 2003-04 crop years, as inventories grew while demand stagnated. However, producer prices were higher for the 2004-05 and the 2005-06 crop years, as noted below: Natural Seedless Producer Prices Crop year Deliveries (natural condition tons) Producer prices (per ton) 2005-06 319,126 1 $998.25 2004-05 265,262 2 1210.00 2003-04 296,864 567.00 2002-03 388,010 491.20 2001-02 377,328 650.94 2000-01 432,616 603.36 1999-2000 299,910 1,211.25 1998-99 240,469 2 1,290.00 1997-98 382,448 946.52 1996-97 272,063 1,049.20 1995-96 325,911 1,007.19 1994-95 378,427 928.27 1993-94 387,007 904.60 1 Return-to-date, reserve pool still open. 2 No volume regulation. There are essentially two broad markets for raisins—domestic and export. Domestic shipments have been generally increasing in recent years. Although domestic shipments decreased from a high of 204,805 packed tons during the 1990-91 crop year to a low of 156,325 packed tons in 1999-2000, they increased from 174,117 packed tons during the 2000-01 crop year to 186,358 tons during the 2005-06 crop year. Export shipments ranged from a high of 107,931 packed tons in 1991-92 to a low of 91,599 packed tons in the 1999-2000 crop year. Since that time, export shipments increased to 106,755 tons of raisins during the 2004-05 crop year, but fell to 97,672 tons in 2005-06. The per capita consumption of raisins has declined from 2.07 pounds in 1988 to 1.44 pounds in 2005. This decrease is consistent with the decrease in the per capita consumption of dried fruits in general, which is due to the increasing availability of most types of fresh fruit throughout the year. While the overall demand for raisins has increased in two out of the last three years (as reflected in increased commercial shipments), production has been decreasing. Deliveries of NS dried raisins from producers to handlers reached an all-time high of 432,616 tons in the 2000-01 crop year. This large crop was preceded by two short crop years; deliveries were 240,469 tons in 1998-99 and 299,910 tons in 1999-2000. Deliveries for the 2000-01 crop year soared to a record level because of increased bearing acreage and yields. Deliveries for the 2001-02 crop year were at 377,328 tons, 388,010 tons for the 2002-03 crop year, 296,864 for the 2003-04 crop year, and 265,262 tons for the 2004-05 crop year. After three crop years of high production and a large 2001-02 carryin inventory, the industry diverted raisin production to other uses or removed bearing vines. Diversions/removals totaled 41,000 acres in 2001; 27,000 acres in 2002; and 15,000 acres of vines in 2003. These actions resulted in declining deliveries of 296,864 tons for the 2003-04 crop year and 265,262 tons for the 2004-05 crop year. Although deliveries increased in 2005-06 to 319,126 tons, this may have been because fewer growers opted to contract with wineries, as raisin variety grapes crushed in 2005-06 decreased by 161,000 green tons, the equivalent of over 40,000 tons of raisins. The order permits the industry to exercise supply control provisions, which allow for the establishment of free and reserve percentages, and establishment of a reserve pool. One of the primary purposes of establishing free and reserve percentages is to equilibrate supply and demand. If raisin markets are over-supplied with product, producer prices will decline. Raisins are generally marketed at relatively lower price levels in the more elastic export market than in the more inelastic domestic market. This results in a larger volume of raisins being marketed and enhances producer returns. In addition, this system allows the U.S. raisin industry to be more competitive in export markets. The reserve percentage limits what handlers can market as free tonnage. Data available as of July 31, 2007, showed that deliveries of NS raisins were at 282,999 tons. The 10 percent reserve limited the total free tonnage to 254,699 natural condition tons (.90 × the 282,999 ton crop). Adding the 254,699 ton figure with the carryin of 111,444 tons, plus the 62,121 tons of 10 plus 10 reserve raisins that were released to handlers during the 2006-07 crop year (31,975 tons in August 2006 and 30,146 tons in March 2007) made the total free supply equal to 428,264 natural condition tons. To assess the impact that volume regulation has on the prices producers receive for their product, a price dependent econometric model was estimated. This model is used to estimate producer prices both with and without the use of volume regulation. The volume regulation used by the raisin industry would result in decreased shipments to primary markets. Without volume regulation the primary market (domestic) could be over-supplied resulting in lower producer prices and the build-up of unwanted inventories. With volume regulation, producer prices are estimated to be approximately $65 per ton higher than without volume regulation. This price increase is beneficial to all producers regardless of size and enhances producers' total revenues in comparison to no volume regulation. Establishing a reserve allows the industry to help stabilize supplies in both domestic and export markets, while improving returns to producers. Free and reserve percentages are established by varietal type, and usually in years when the supply exceeds the trade demand by a large enough margin that the Committee believes volume regulation is necessary to maintain market stability. Accordingly, in assessing whether to apply volume regulation or, as an alternative, not to apply such regulation, it was determined that volume regulation was warranted during the 2006-07 season for only one of the nine raisin varietal types defined under the order. The free and reserve percentages continue in effect the release of the full trade demand and apply uniformly to all handlers in the industry, regardless of size. For NS raisins, with the exception of the 1998-99 and 2004-05 crop years, small and large raisin producers and handlers have been operating under volume regulation percentages every year since 1983-84. There are no known additional costs incurred by small handlers that are not incurred by large handlers. While the level of benefits of this rulemaking is difficult to quantify, the stabilizing effects of the volume regulations impact small and large handlers positively by helping them maintain and expand markets even though raisin supplies fluctuate widely from season to season. Likewise, price stability positively impacts small and large producers by allowing them to better anticipate the revenues their raisins will generate. AMS is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes. There are some reporting, recordkeeping and other compliance requirements under the order. The reporting and recordkeeping burdens are necessary for compliance purposes and for developing statistical data for maintenance of the program. The requirements are the same as those applied in past seasons. Thus, this action imposes no additional reporting or recordkeeping requirements on either small or large raisin handlers. The forms require information which is readily available from handler records and which can be provided without data processing equipment or trained statistical staff. The information collection and recordkeeping requirements have been previously approved by the Office of Management and Budget
(OMB)under OMB Control No. 0581-0178. As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. In addition, as noted in the initial regulatory analysis, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule. Further, the Committee's meetings were widely publicized throughout the raisin industry and all interested persons were invited to attend the meetings and participate in the Committee's deliberations. Like all Committee meetings, the August 15, September 6, October 4, November 21, 2006, and the January 23, 2007, meetings were public meetings and all entities, both large and small, were able to express their views on this issue. Also, the Committee has a number of appointed subcommittees to review certain issues and make recommendations to the Committee. The Committee's Reserve Sales and Marketing Subcommittee met on August 15, September 6, October 4, November 21, 2006, and January 23, 2007, and discussed these issues in detail. Those meetings were also public meetings and both large and small entities were able to participate and express their views. An interim final rule concerning this action was published in the **Federal Register** on April 9, 2007. Copies of the rule were mailed by the Committee's staff to all Committee members and alternates and raisin handlers. In addition, the rule was made available through the Internet by USDA and the Office of the Federal Register. That rule provided for a 60-day comment period which ended June 8, 2007. One comment was received during the comment period; it was not relevant to the rulemaking action. Accordingly, no changes were made to the rule, based on comment received. A small business guide on complying with fruit, vegetable, and specialty crop marketing agreements and orders may be viewed at: *http://www.ams.usda.gov/fv/moab.html.* Any questions about the compliance guide should be sent to Jay Guerber at the previously mentioned address in the FOR FURTHER INFORMATION CONTACT section. After consideration of all relevant material presented, including the Committee's recommendation, and other information, it is found that finalizing the interim final rule, without change, as published in the **Federal Register** (72 FR 17362, April 9, 2007) will tend to effectuate the declared policy of the Act. List of Subjects in 7 CFR Part 989 Grapes, Marketing agreements, Raisins, Reporting and recordkeeping requirements. PART 989—RAISINS PRODUCED FROM GRAPES GROWN IN CALIFORNIA Accordingly, the interim final rule amending 7 CFR part 989 which was published at 72 FR 17362 on April 9, 2007, is adopted as a final rule without change. Dated: October 15, 2007. Lloyd C. Day, Administrator, Agricultural Marketing Service. [FR Doc. E7-20621 Filed 10-18-07; 8:45 am] BILLING CODE 3410-02-P NUCLEAR REGULATORY COMMISSION 10 CFR Chapter I RIN 3150-AH84 Notification of the Plan for the Transition of Regulatory Authority Resulting From the Expanded Definition of Byproduct Material AGENCY: Nuclear Regulatory Commission. ACTION: Notice of publication of transition plan. SUMMARY: In accordance with Section 651e of the Energy Policy Act of 2005, the U.S. Nuclear Regulatory Commission is publishing a “Plan for the Transition of Regulatory Authority Resulting from the Expanded Definition of Byproduct Material” (transition plan) to facilitate an orderly transition of regulatory authority with respect to the byproduct material defined in paragraphs
(3)and
(4)of section 11e. of the Atomic Energy Act of 1954, as amended. A copy of the final transition plan is provided as Appendix A to this document. FOR FURTHER INFORMATION CONTACT: Kim K. Lukes, Office of Federal and State Materials and Environmental Management Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone
(301)415-6701 or e-mail *KXK2@NRC.GOV* . Dated at Rockville, Maryland, this 11th day of October, 2007. For the Nuclear Regulatory Commission. Annette L. Vietti-Cook, Secretary of the Commission. Appendix A—A Plan for the Transition of Regulatory Authority Resulting From the Expanded Definition of Byproduct Material I. Introduction The Energy Policy Act of 2005 (EPAct) expanded U.S. Nuclear Regulatory Commission (NRC or Commission) regulatory authority over radioactive materials to include new byproduct material, as defined in paragraphs
(3)and
(4)of section 11e. of the Atomic Energy Act of 1954, as amended (AEA), hereinafter referred to as the new byproduct material. The expanded NRC authority pre-empted existing State regulatory authority over the subject materials. NRC is authorized, however, to discontinue its regulatory authority over the new byproduct material under certain conditions, allowing States to exercise regulatory authority over these materials. The EPAct requires the Commission to prepare and publish a transition plan to facilitate an orderly transition of regulatory authority with respect to the new byproduct material. The plan must address States that have, before the date on which the plan is published, entered into agreements with the Commission, under section 274b. of the AEA 1 (Agreement States), and States that have not entered into such agreements (non-Agreement States). The plan must also include a description of the conditions under which a State may exercise regulatory authority over the new byproduct material. 1 Section 274b. of the AEA authorizes the Commission to enter into an agreement with the Governor of a State that provides for discontinuance of the Commission's regulatory authority in the State over byproduct material as defined in section 11e., source materials, and special nuclear materials in quantities not sufficient to form a critical mass. To meet the requirements of the EPAct, the transition plan must include a statement of the Commission that any Agreement between the Commission and a State 2 under section 274b. of the AEA, covering byproduct material and entered into before the date of publication of the transition plan, must be considered to include the new byproduct material, if the Governor of the State certifies to the Commission, on the date of the publication of the transition plan that:
(1)The State has a program for licensing the new byproduct material that is adequate to protect the public health and safety, as determined by the Commission; and
(2)the State intends to continue to implement the regulatory responsibility of the State with respect to the new byproduct material. This transition plan is being promulgated in response to those requirements. 2 Section 274n. of the AEA defines the term “State” to mean any State, Territory, or possession of the United States, the Canal Zone, Puerto Rico, and the District of Columbia. II. Background On August 8, 2005, the President signed into law the Energy Policy Act of 2005. Public Law No. 109-58, 119 Stat 594 (2005). Before then, byproduct material had been defined in section 11e. of the AEA as:
(1)Any radioactive material (except special nuclear material) yielded in or made radioactive by exposure to the radiation incident to the process of producing or using special nuclear material; and
(2)the tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content. Section 651(e) of the EPAct, among other things, expanded the definition of byproduct material in section 11e. of the AEA, thereby placing additional byproduct material under NRC's jurisdiction. Section 651(e) further required the Commission to provide a regulatory framework for licensing and regulating this additional byproduct material. In particular, section 651(e) of the EPAct expanded the definition of byproduct material by adding paragraphs
(3)and
(4)to the definition of byproduct material in section 11e. Section 11e.(3) defines, as byproduct material: “(A) any discrete source of radium-226 that is produced, extracted, or converted after extraction, before, on, or after the date of enactment of this paragraph for use for a commercial, medical, or research activity; or
(B)any material that—
(i)has been made radioactive by use of a particle accelerator; and
(ii)is produced, extracted, or converted after extraction, before, on, or after the date of enactment of this paragraph for use for a commercial, medical, or research activity. Section 11e.(4) defines, as byproduct material, any discrete source of naturally occurring radioactive material (NORM), 3 other than source material, that— 3 Note: At this time, NRC has not identified any NORM currently in use that would meet the definition of section 11e.(4).
(A)the Commission, in consultation with the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of Homeland Security, and the head of any other appropriate Federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security; and
(B)before, on, or after the date of enactment of this paragraph is extracted or converted after extraction for use in a commercial, medical, or research activity.” III. The Agreement State Program In 1959, the AEA was amended to adopt section 274, *Cooperation with States* . As provided in section 274b., the Governor of a State may request an Agreement with the Commission in which NRC discontinues, and the State assumes, regulatory authority over categories of materials, that may include source, byproduct, and special nuclear materials (in quantities insufficient to form a critical mass). Collectively, the materials that are authorized for regulation by States under such Agreements are known as “AEA materials” or “Agreement materials.” The Commission may enter into an Agreement if it finds that the State program is compatible with the Commission's program for regulation of such materials, and that it is adequate to protect the public health and safety with respect to the materials covered by the proposed Agreement. Under section 274j.(1) of the AEA, the Commission must periodically review Agreement State programs and the actions the States take under the Agreements, to ensure compliance with the provisions of that section. A. Concept of Compatibility In 1997, the Commission adopted a Policy Statement declaring that an Agreement State radiation control program is compatible with the Commission's regulatory program when the State program does not create conflicts, duplications, gaps, or other conditions that jeopardize an orderly pattern in the regulation of agreement material Nationwide [see *Statement of Principle and Policy for the Agreement State Program; Policy Statement on Adequacy and Compatibility of Agreement State Programs* , (62 FR 46517; September 3, 1997)]. Thus, compatibility focuses primarily on the potential effects of a State action or inaction either on a Nationwide basis or on interstate commerce crossing into other jurisdictions. Generally, a State program is compatible if the elements of the program are similar to the corresponding elements of the NRC program. Some elements, such as basic radiation protection standards and program elements with transboundary implications, should be essentially identical, whereas other elements may need only to meet the same essential objectives. The detailed criteria for Agreement State compatibility are set out in NRC Management Directive 5.9, *Adequacy and Compatibility of Agreement State Programs* . B. Concept of Adequacy The 1997 Commission Policy Statement declares that an Agreement State radiation control program is adequate to protect public health and safety if administration of the program provides reasonable assurance that the level of protection afforded by the State program is at least as protective as NRC's materials regulatory program. The continuing adequacy and compatibility of an Agreement State radiation control program is determined through the Integrated Materials Performance Evaluation Program (IMPEP). NRC periodically reviews the adequacy and compatibility of each Agreement State's radiation protection program using the same set of performance criteria used to evaluate the equivalent NRC licensing and inspection programs. For further information on this program, please see NRC Management Directive 5.6, *Integrated Materials Performance Evaluation Program (IMPEP)* , on the NRC Web site ( *http://www.nrc.gov* ). IV. Regulation of Radioactive Materials Before the EPAct For the purposes of this discussion, before the EPAct, radioactive materials could be divided into three groups: those regulated only by NRC (e.g., formula quantities of special nuclear material); those regulated only by State or local agencies [e.g., Naturally Occurring and Accelerator-Produced Radioactive Material (NARM)]; and those radioactive materials that may be regulated by NRC, or by a State under an Agreement pursuant to section 274b. of the AEA. Since 1954, NRC (and its predecessor agency, the U.S. Atomic Energy Commission) has regulated the non-military use of a limited set of radioactive materials. Collectively, the set of regulated materials is known as AEA material. The basis for assertion of Federal authority over the AEA materials was the belief that they posed (at that time) a new hazard beyond the ability of the States to control. NORM (mostly radium-226) and accelerator-produced radioactive materials
(ARM)were relatively rare and did not pose an overwhelming problem for the States to control. AEA material originally consisted of source and special nuclear materials, and byproduct materials as now defined in section 11e.(1). In 1978, the AEA definition of “byproduct material” was amended to add section 11e.(2), that included the tailings from uranium or thorium ore processed primarily for their source material content. Other NORM and ARM were not included in the definition of byproduct material before enactment of the EPAct, and thus were not AEA materials and were not subject to NRC regulation. These radioactive materials were under individual State regulatory authority. V. Regulatory Changes Required by Section 651(e) of the EPAct By amending the definition of “byproduct material” to include certain ARM and NORM, including radium-226, the EPAct has made these radioactive materials AEA materials subject to NRC regulation. Note that only certain ARM and NORM that meet the criteria set out in the EPAct are byproduct material. The criteria for ARM that is defined as byproduct material are that the material:
(1)Is made radioactive by use of a particle accelerator;
(2)is produced, extracted, or converted after extraction, before, on, or after the enactment date of the EPAct; and
(3)is produced, extracted, or converted after extraction, for use for a commercial, medical, or research activity. For radium-226 and other NORM to be byproduct material, it must meet the last two criteria, plus be a “discrete source.” ARM and NORM that do not meet these criteria are not AEA byproduct material. Independent State regulation of the new byproduct material is pre-empted by the EPAct. States now may only regulate the materials through an agreement with the Commission, under section 274b. of the AEA. Other ARM and NORM that do not meet the definition of byproduct material could continue to be regulated under individual State authority. This transition plan addresses only transitions of authority related to the newly defined byproduct material described in Section 651(e) and not to issues raised in other sections of the EPAct. VI. Transition of Authority A. Preliminary Activities At the time the EPAct was signed into law, NRC did not have regulations in place that would specifically apply to the new byproduct material. Time was needed for the development of a revised regulatory program, to allow for the orderly transition of regulatory authority over this material. Section 651(e)(5) of the EPAct authorizes the Commission to issue waivers of the requirements of section 651(e) for up to 4 years, if the Commission determines that the waiver is in accordance with the protection of the public health and safety and promotion of the common defense and security. The Commission determined that such a waiver should be granted to entities engaging in activities involving the new byproduct material, and it would be in the best interests of the public to allow the continued use of the new byproduct material, and to allow the States to continue to regulate the new byproduct material until the Commission could codify new regulations for these materials. The Commission issued such a waiver on August 31, 2005 (70 FR 51581). As required by section 651(e) of the EPAct, the Commission must terminate any waiver issued under section 651(e), regarding a State, on determining that:
(1)The State has entered into an agreement with the Commission under section 274b. of the AEA;
(2)the Agreement covers section 11e.(3) or 11e.(4) byproduct material; and
(3)the State's program for licensing such byproduct material is adequate to protect the public health and safety. In addition, any waiver issued under section 651(e) may be effective only through August 7, 2009, unless the Commission terminates it earlier. NRC conducted a rulemaking to cover the new byproduct materials. The final rule was published on October 1, 2007 (72 FR 55864), in accordance with the EPAct requirements. The rule is to become effective 60 days after publication for some licensees, and later for others, as described in this transition plan and the **Federal Register** Notice for the final rule. Revisions to NRC Policy and Guidance documents were undertaken in parallel with the rulemaking. B. Conditions Under Which a State May Exercise Authority Over 11e.(3) and 11e.(4) Byproduct Material A State may exercise regulatory authority over the new byproduct material in one of two ways:
(1)Under the Commission-issued waiver; or
(2)under an AEA section 274b. Agreement. Starting on August 8, 2009, or earlier if the waiver is terminated for the State under EPAct section 651(e)(5)(B)(ii), the State may exercise its own authority over the new byproduct material only under an AEA section 274b. Agreement. If the State does not already have such an Agreement, the Governor of the State may request an Agreement with the Commission. The Commission may enter into an Agreement if the documentation supporting the Governor's request demonstrates that:
(1)The State has a program to regulate the materials covered by the proposed Agreement; and
(2)the State program is adequate to protect the public health and safety and is compatible with the Commission's program for byproduct material. NRC staff will evaluate the Governor's request using NRC/Office of Federal and State Materials and Environmental Management Programs
(FSME)Procedure SA-700, *Processing an Agreement* . This procedure is posted on the NRC Web site ( *http://www.nrc.gov* ). Printed hard copies may also be obtained from the NRC Public Document Room. The Commission may enter into an Agreement covering one or more of the following categories of materials: source material; special nuclear material in quantities not sufficient to form a critical mass; byproduct material as defined in section 11e.(1), 11e.(2), 11e.(3), or 11e.(4); the regulation of the land disposal of byproduct, source, or special nuclear waste materials received from other persons; and the safety evaluation of sealed sources or devices containing sealed sources. 1. Transition of Authority in States That Have Entered Into Agreements With the Commission Under AEA Section 274b., Before Publication of This Plan There are two ways an existing Agreement State may include the new byproduct material in its AEA section 274b. Agreement:
(1)The Governor of the State provides the certification described in section 651(e)(4)(C)(iii)(II) of the EPAct on the date of publication of the transition plan; or
(2)using the standard process, whereby the Governor requests an amendment to the State's Agreement, as provided in section 274 of the AEA. The Governor's certification avoids the need to amend the State's Agreement in accordance with the formal requirements of section 274 of the AEA. If a Governor chooses not to provide the certification described in the EPAct, NRC will assert its authority to regulate the new byproduct material. 2. Basis for Finding Adequacy in Reviewing Governor Certifications For Agreement States whose Governors provide a certification, the Commission will find the States' programs adequate to protect health and safety if the criteria of NRC Management Directive 5.6, *Integrated Materials Performance Evaluation Program (IMPEP)* , are satisfied. For an Agreement State whose program for licensing 11e.(1) byproduct material has been previously evaluated under IMPEP, the Commission will base its determination of adequacy on the State's prior IMPEP findings if:
(1)The State's program for licensing 11e.(3) and 11e.(4) byproduct material is not separate and distinct 4 from its program for licensing 11e.(1) byproduct material;
(2)the State intends to continue to license the new byproduct material under its existing program; and
(3)no changes have been made to the State's licensing program that would impact the previous IMPEP finding of adequacy. If the State provides confirmation that these criteria are met, the Commission will consider a finding of adequate performance from the State's last IMPEP review as an indicator that the State's program for licensing section 11e.(3) and 11e.(4) byproduct material is adequate to protect health and safety. 4 The Commission understands that the Agreement States license NARM and section 11e.(1) byproduct material without distinguishing between the materials. For a new Agreement State that has not yet had a program review under IMPEP, the Commission will base its determination of adequacy on the following:
(1)The State's program for licensing 11e.(3) and 11e.(4) byproduct material is not separate and distinct from its program for licensing 11e.(1) byproduct material;
(2)the State intends to continue to license the new byproduct material under its existing program; and
(3)no changes have been made to the State's licensing program that would impact the Commission's decision to enter into the AEA section 274b. Agreement. The Governor's certification should be addressed to the Chairman of the Commission. On receipt, the Chairman or his designee will review the certification. If the Governor's certification contains the statements required by the EPAct, and the Commission determines that the State's program to license the new byproduct material is adequate to protect health and safety, the Chairman will accept the Governor's certification on behalf of the Commission, and the Governor will be notified of the acceptance. As of the date that the certification is accepted by the Commission, the State's Agreement will be considered to include AEA section 11e.(3) and 11e.(4) byproduct material, and the waiver will be terminated for the State. The certification will become a part of the Agreement, but the Agreement document will not be otherwise amended. The NRC will verify the adequacy of the State's program to license the new byproduct material during subsequent IMPEP reviews. 3. Agreement States That Elect Not To Include AEA Section 11e.(3) and 11e.(4) Byproduct Material in Their Agreements If an Agreement State elects not to continue to regulate the new byproduct material under an existing section 274b. Agreement, the State should notify the Commission that it intends to discontinue its regulatory authority for the new byproduct material. NRC is requesting that such an Agreement State also provide NRC with a list of affected users/licensees, in its notification. To facilitate an orderly transition of regulatory authority for an Agreement State that does not intend to continue to regulate the new byproduct material, NRC intends to terminate the waiver for the State, and all individuals in the State, before August 8, 2009. The timing of the waiver termination for the State will be determined in consultation with representatives of the State's regulatory program. NRC plans to use the phased approach for earlier waiver terminations described in Section VI.C.1., “Non-Agreement States That Do Not Request an Agreement,” for Agreement States that do not intend to continue to regulate the new byproduct material. This approach will prevent an abrupt transition of authority on the date the waiver expires. Likewise, NRC plans to notice waiver terminations in the **Federal Register** , for Agreement States that do not intend to continue to regulate the new byproduct material, in the same manner as described in Section VI.C.1., for non-Agreement States that do not request Agreements. Also, the actions with which users of the new byproduct material in such Agreement States will be required to comply will be the same as those described in Section VI.C.1., for users in non-Agreement States that do not request Agreements. 4. Agreement States That Do Not, on the Date of Publication of the Transition Plan, Certify Adequacy for 11e.(3) and 11e.(4) Byproduct Material Section 651(e) of the EPAct provides that any Agreement covering byproduct material, as defined in paragraph
(1)or
(2)of section 11e. of the AEA, entered into between the Commission and a State under section 274b. of that Act before the date of publication of this transition plan shall be considered to include byproduct material, as defined in paragraph
(3)or
(4)of section 11e. of the AEA, if the Governor of the State certifies to the Commission on the date of publication of this transition plan that:
(a)The State has a program for licensing byproduct material, as defined in paragraph
(3)or
(4)of section 11e. of the AEA, that is adequate to protect the public health and safety, as determined by the Commission; and
(b)the State intends to continue to implement the regulatory responsibility of the State with respect to the byproduct material. If the Governor of a State has not made such a certification to the Commission, and the State intends to continue to implement its regulatory authority over these materials, the State may be required to amend its AEA section 274b. Agreement to include the new byproduct material. C. Transition of Authority in States That Have Not Entered Into an Agreement With the Commission Under AEA Section 274b. (Non-Agreement States) Before Publication of This Plan 1. Non-Agreement States That Do Not Request an Agreement Any State that, on August 8, 2009, does not have an Agreement with the Commission under section 274b. of the AEA, which covers 11e.(3) or 11e.(4) new byproduct material, must discontinue its regulatory authority over the byproduct material. To facilitate an orderly transition of regulatory authority for States that do not intend to establish AEA section 274b. Agreements with the Commission before August 8, 2009, NRC intends to terminate the waiver for such States, and all individuals in such States, before August 8, 2009. NRC plans to use a phased approach for the earlier waiver terminations, to prevent an abrupt transition of authority on the date the waiver expires. The timing of waiver terminations for the States will be determined in consultation with representatives of the States' regulatory programs. Waiver terminations will be executed for groups of States, at periodic intervals occurring between the effective date of the rule and August 7, 2009. Starting at Midnight, local time, on the effective date of the waiver termination, NRC will assume regulatory authority over section 11e.(3) and 11e.(4) byproduct material within the States. Each waiver termination for a group of States will be noticed in the **Federal Register** as a “Notification of Waiver Termination and Implementation Dates of Rule.” To the extent possible, each waiver termination will be noticed approximately 6 months before the effective date of the waiver termination. The notifications will provide the effective date of the waiver terminations, and will identify the States to which the waiver terminations will apply. The notifications also will provide specific actions with which users of the newly added byproduct material in the affected States will need to comply to continue to use the material. The actions with which the users will be required to comply are expected to be similar to those provided for Government agencies and federally recognized Indian Tribes in NRC's amended rules applicable to the new byproduct material October 1, 2007 (72 FR 55864), which become effective on November 30, 2007. In a manner similar to the process outlined in Section VI.F., if non-Federal entities in these States wish to continue using the new byproduct material, they will either:
(1)Be required to apply for license amendments for the new byproduct material, within 6 months from the date the waiver is terminated for their State, if they hold an NRC specific byproduct materials license; or
(2)submit a license application for the new byproduct material, within 12 months from the date the waiver is terminated for their State. NRC plans to terminate the waiver no later than August 7, 2009, for all individuals in States that do not plan to establish AEA section 274b. Agreements with NRC. This should allow all users in States sufficient time to submit license applications within the periods described above. NRC will cooperate with States for which the waiver will be terminated to identify users of the byproduct material within the States, and provide notifications to the users of the impending transition of authority. In addition to the notifications described above, NRC may issue press releases, and initiate interactions with industry groups and other stakeholders in an effort to ensure that all users in the affected States are aware of the transition of authority and requirements for continued use of the new byproduct material. 2. Non-Agreement States That Request AEA Section 274b. Agreements Covering Section 11e.(3) or 11e.(4) Byproduct Materials The Governor of any State that does not have an Agreement with the Commission under section 274b. may request an Agreement that covers section 11e.(3) or 11e.(4) byproduct material, and also may request an Agreement that covers any or all of the other materials and activities as described in the discussion in Section VI.B., “Conditions Under Which a State May Exercise Authority over 11e.(3) and 11e.(4) Byproduct Material.” The request should follow the NRC/FSME Procedure SA-700, *Processing an Agreement,* starting with a request for an Agreement as soon as practical. A copy of the procedure is available on the NRC Web site ( *http://www.nrc.gov* ). The NRC staff will recommend that the Commission approve an Agreement if the State's Program for regulating the requested byproduct materials meets the criteria in NRC/FSME Procedure SA-700, *Processing an Agreement.* If the Commission approves, the Agreement will become effective on a date selected by the State, and specified in the Agreement. If the effective date is before August 8, 2009, the Commission will terminate the waiver for all persons in that State on the effective date of the Agreement. Requests from States to enter into 274b. Agreements before the time-limited waiver expires on August 7, 2009, will be reviewed in accordance with the NRC/FSME Procedure SA-700, Processing an Agreement. Every effort will be made to complete an Agreement as soon as practical, without compromising quality and completeness. The Commission understands that situations may arise that may delay the completion and effective date of Agreements. If any Agreements cannot be completed before the waiver expires on August 7, 2009, the Commission may consider, on a case-by-case basis, options to limit the impact on affected users of 11e.(3) and 11e.(4) byproduct material in the States. D. Transition of Exempt Distribution Licenses for NARM From State Jurisdiction to NRC Jurisdiction The Commission, pursuant to 10 CFR 150.15, retains the authority to license the distribution of byproduct material to persons who are exempt from regulatory requirements. Since the Commission did not have jurisdiction over section 11e.(3) and 11e.(4) byproduct material previously, the States had the authority to issue licenses for the distribution of NARM to persons who were exempt from licensing and regulatory requirements. With the expansion of the definition of byproduct material, NRC authority pre-empts the States' authority to issue such licenses. NRC understands that there are a limited number of State issued exempt distribution licenses for the new byproduct material, which will transfer to NRC on termination of the waiver for the State. The specifics of the transfer will be addressed directly with the involved States and distributors, on a case-by-case basis. On expiration or earlier termination of the waiver, NRC will issue licenses for the distribution of products containing AEA section 11e.(3) and 11e.(4) byproduct material to persons who are exempt from licensing and regulatory requirements. E. Transition of Sealed Source or Device Registration Certificates for NARM From State Jurisdiction to NRC Jurisdiction Since, previously, the States had jurisdiction over NARM (including the new byproduct material), the States also had authority for the evaluation of radiation safety information on sealed sources or devices
(SSDs)containing NARM, and the registration of such SSDs for distribution. Most Agreement States' section 274b. Agreements provide for the Commission to discontinue its authority for the evaluation of radiation safety information on SSDs containing byproduct materials, and for the registration of the SSDs for distribution. An Agreement State whose section 274b. Agreement provides for the Commission to discontinue its SSD authority shall retain this authority and responsibility for SSDs containing the new byproduct material, after the waiver expires on August 7, 2009, or on earlier waiver termination by the Commission, if the State's 274b. Agreement includes the new byproduct material. After the waiver expires on August 7, 2009, or on earlier waiver termination by the Commission, NRC will assume regulatory authority over radiation safety evaluations and registration of SSDs containing the new byproduct material in non-Agreement States, and in Agreement States whose section 274b. Agreements do not provide for the Commission to discontinue its authority for radiation safety evaluations and registration of SSDs containing byproduct material. In addition, NRC will also assume regulatory authority over all radiation safety evaluations and registrations of exempt distribution devices containing the new byproduct material that previously may have been licensed by the States. NRC will cooperate with States for which the regulatory authority over radiation safety evaluations and registrations of SSDs containing the new byproduct material will transfer from the State to the NRC, to provide a notification to affected holders of active SSD registrations in the States, of the impending transition of authority. NRC is also requesting that such States provide NRC with copies of affected SSD registrations. F. Federal Entity Licensees of the Commission and Unlicensed Federal Users Under the AEA byproduct, source, and special nuclear material, licenses for Government agencies and federally recognized Indian Tribes are issued by the Commission, and are not subject to State regulation. Since NRC was not previously authorized to license NARM, these entities may not have an NRC license authorizing the new byproduct material. NRC plans to terminate the waiver for Government agencies and federally recognized Indian Tribes on the effective date of the final rule, which is November 30, 2007, and these users will be subject to the new requirements on that date. Such entities who wish to continue to use the new byproduct material must either:
(1)Apply for license amendments for the new byproduct material, within 6 months from the effective date of the rule, if they hold NRC specific byproduct materials licenses; or
(2)submit license applications for the new byproduct material, within 12 months from the effective date of the rule, if new NRC specific byproduct materials licenses are needed. G. Notification of Transition Actions Section 651(e)(5)(c) of the EPAct requires NRC to publish a notice of any waiver granted under section 651(e)(5) in the **Federal Register** . As described above, NRC published such a waiver on August 31, 2005. NRC is required by section 274e.(1) of the AEA to notice in the **Federal Register** any new or amended AEA section 274b. Agreements. Any new or amended Agreements will be published as required by section 274e.(1) of the AEA. Although the EPAct does not specifically require NRC to notice a waiver termination, NRC will publish in the **Federal Register** any “Notification of Waiver Termination and Implementation Dates of Rule.” NRC will also make publicly available the acceptance of a Governor's certification. NRC normally provides notifications of any new AEA section 274b. Agreements to Congress, Federal Agencies, and States. NRC plans to also notify these entities of any waiver termination. References 1. Atomic Energy Act of 1954, as amended. 2. Conference of Radiation Control Program Directors, Inc. (CRCPD), “Suggested State Regulations for Control of Radiation,” available at the CRCPD Web site *http://www.crcpd.org/free_docs.asp.* 3. Energy Policy Act of 2005, Pub. L. 109-58, 119 Stat. 594 (2005). 4. U.S. Nuclear Regulatory Commission, Management Directive 5.6, “Integrated Materials Performance Evaluation Program (IMPEP),” available in the Electronic Reading Room on the NRC Web site *http://www.nrc.gov.* 5. U.S. Nuclear Regulatory Commission, Management Directive 5.9, “Adequacy and Compatibility of Agreement State Programs,” available in the Electronic Reading Room on the NRC Web site *http://www.nrc.gov.* 6. U.S. Nuclear Regulatory Commission, Office of Federal and State Materials and Environmental Management Programs, Procedure SA-700, “Processing an Agreement,” available at the NRC, Office of Federal and State Materials and Environmental Management Programs Web site *http://nrc-stp.ornl.gov/.* 7. U.S. Nuclear Regulatory Commission, “Statement of Principle and Policy for the Agreement State Program; Policy Statement on Adequacy and Compatibility of Agreement State Programs,” 62 FR 46517, September 3, 1997. 8. U.S. Nuclear Regulatory Commission, Guidance on New Agreements, NRC Handbook 5.8, “Proposed Section 274b. Agreements With States,” available in the Electronic Reading Room on the NRC Web site *http://www.nrc.gov.* [FR Doc. 07-5120 Filed 10-18-07; 8:45 am]
Connectionstraces to 4
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  • 7 CFR 989
  • 7 USC 601-674
  • Pub. L. 109-58
  • 119 Stat. 594
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cites case law
Unknown
Final rule
Fed. Reg.Notices
Fed. Reg.Notices
C.F.R.§ 121.201
C.F.R.§ 150.15
Cite7 CFR 989
Cite7 USC 601-674
Pub. L.Pub. L. 109-58
Stat.119 Stat. 594
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