51578 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

and contrary to the public interest to 

give preliminary notice prior to putting 

this rule into effect and that good cause 

exists for not postponing the effective 

date of this rule until 30 days after 

publication in the Federal Register 

because: (1) This rule relaxes container 

requirements for oranges and grapefruit; 

(2) the regulatory period begins 

September 1 and this action should be 

in effect promptly so handlers can plan 

accordingly; (3) the Committee 

unanimously recommended these 

changes at a public meeting and 

interested parties had an opportunity to 

provide input; and (4) this rule provides 

a 60-day comment period and any 

comments received will be considered 

prior to finalization of this rule. 

List of Subjects in 7 CFR Part 906 

Grapefruit, Marketing agreements, 

Oranges, Reporting and recordkeeping 

requirements. 

■ For the reasons set forth in the 

preamble, 7 CFR part 906 is amended as 

follows: 

PART 906—ORANGES AND 

GRAPEFRUIT GROWN IN LOWER RIO 

GRANDE VALLEY IN TEXAS 

■ 1. The authority citation for 7 CFR 

part 906 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

§ 906.120 [Amended] 

■ 2. In § 906.120, paragraph (c)(3)(iii), 

remove the words ‘‘which are packed 

level full,’’; and in paragraph (e), 

remove the words ‘‘the term level full 

means that the fruit is level with the top 

edge of the bottom section of the 

carton;’’. 

§ 906.137 [Amended] 

■ 3. In § 906.137, paragraph (b), change 

the number ‘‘51.685’’ to ‘‘51.653’’ and 

the number ‘‘51.712’’ to ‘‘51.714’’. 

■ 4. Section 906.340 is amended as 

follows: 

■ A. Revise paragraph (a)(1) to read as 

set forth below; 

■ B. Amend paragraph (a)(2)(i)(A) 

introductory text by removing the words 

‘‘, when place packed in cartons or other 

containers,’’; 

■ C. Amend paragraph (a)(2)(ii)(A) 

introductory text by removing the words 

‘‘when place packed in cartons or other 

containers’’ and ‘‘and otherwise meet 

the requirements of standard sizing’’; 

and 

■ D. Amend paragraph (c) by revising 

‘‘51.652’’ to read ‘‘51.653’’. 

§ 906.340 Container, pack, and container 

marking regulations. 

(a) * * * 

(1) Containers. (i) Closed fiberboard 

carton with inside dimensions of 131⁄4 x 

101⁄2 x 71⁄4 inches: Provided, That the 

container has a Mullen or Cady test of 

at least 200 pounds; 

(ii) Closed fully telescopic fiberboard 

carton with inside dimensions of 161⁄2 x 

103⁄4 x 91⁄2 inches; 

(iii) Closed fiberboard carton with 

inside dimensions of 20 x 131⁄4 inches 

and a depth from 93⁄4 to 13 inches: 

Provided, That the container has a 

Mullen or Cady test of at least 250 

pounds: And Provided further, That the 

container may be used to pack any poly 

or mesh bags authorized in this section; 

(iv) Poly or mesh bags having a 

capacity of four, five, eight, ten, or 18 

pounds of fruit: Provided, That only 

oranges are to be packed in the fourpound bag. 

(v) Rectangular or octagonal bulk 

fiberboard crib with approximate 

dimensions of 46 to 471⁄2 inches in 

length, 37 to 38 inches in width, and 36 

inches in height: Provided, That this 

container has a Mullen or Cady test of 

at least 1,300 pounds, and that it is used 

only once for the shipment of citrus 

fruit: And Provided further, That the 

container may be used to pack any poly 

or mesh bags authorized in this section, 

or bulk fruit. 

(vi) Rectangular or octagonal 2⁄3

fiberboard crib with approximate 

dimensions of 46 to 471⁄2 inches in 

length, 37 to 38 inches in width, and 24 

inches in height: Provided, That the crib 

has a Mullen or Cady test of at least 

1,300 pounds, and that it is used only 

once for the shipment of citrus fruit: 

And Provided further, That the 

container may be used to pack any poly 

or mesh bags authorized in this section, 

or bulk fruit. 

(vii) Octagonal fiberboard crib with 

approximate dimensions of 46 to 471⁄2

inches in width, 37 to 38 inches in 

depth, and 26 to 261⁄2 inches in height: 

Provided, That the crib has a Mullen or 

Cady test of at least 1,300 pounds, and 

that it is used only once for the 

shipment of citrus fruit: And Provided 

further, That the crib may be used to 

pack any poly or mesh bags authorized 

in this section, or bulk fruit. 

(viii) Fiberboard box holding two 

layers of fruit, with approximate 

dimensions of 23 inches in length, 151⁄2

inches in width, and 7 inches in depth; 

(ix) Fiberboard box with approximate 

dimensions of 15 inches in length, 11 

inches in width, and 71⁄2 inches in 

depth; 

(x) Fiberboard box with approximate 

dimensions of 253⁄4 inches in length, 15 

inches in width, and 83⁄8 to 101⁄2 inches 

in depth; 

(xi) Reusable collapsible plastic 

container with approximate dimensions 

of 23 inches in length, 15 inches in 

width, and 7 to 11 inches in depth; 

(xii) Reusable collapsible plastic 

container with approximate dimensions 

of 141⁄4 x 103⁄4 x 63⁄4 inches; 

(xiii) Reusable collapsible plastic bin 

with approximate dimensions of 363⁄4 x 

443⁄4 x 27 inches; 

(xiv) Octagonal bulk triple wall 

fiberboard crib with approximate 

dimensions of 373⁄4 inches in length, 25 

inches in width, and 25 inches in 

height: Provided, That the container has 

a Mullen or Cady test of at least 1,100 

pounds: And Provided further, That the 

container may be used to pack any poly 

or mesh bags authorized in this section, 

or bulk fruit; 

(xv) Closed fiberboard carton with 

approximate dimensions of 161⁄2 inches 

in length, 103⁄4 inches in width, and 

615⁄16 inches in height: Provided, That 

the container has a Mullen or Cady test 

of at least 200 pounds; 

(xvi) Such types and sizes of 

containers as may be approved by the 

committee for testing in connection 

with a research project conducted by or 

in cooperation with the committee: 

Provided, That the handling of each lot 

of fruit in such test containers shall be 

subject to prior approval and under the 

supervision of the committee. 

* * * * * 

Dated: August 26, 2005. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 05–17321 Filed 8–30–05; 8:45 am] 

BILLING CODE 3410–02–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 958 

[Docket No. FV05–958–1 FIR] 

Onions Grown in Certain Designated 

Counties in Idaho, and Malheur 

County, OR; Decreased Assessment 

Rate 

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 which decreased the 

assessment rate established for the 

Idaho-Eastern Oregon Onion Committee 

(Committee) for the 2005–2006 and 

subsequent fiscal periods from $0.105 to 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51579 

$0.10 per hundredweight of onions 

handled. The Committee locally 

administers the marketing order which 

regulates the handling of onions grown 

in designated counties in Idaho, and 

Malheur County, Oregon. Authorization 

to assess onion handlers enables the 

Committee to incur expenses that are 

reasonable and necessary to administer 

the program. The fiscal period began 

July 1 and ends June 30. The assessment 

rate will remain in effect indefinitely 

unless modified, suspended, or 

terminated. 

EFFECTIVE DATE: September 30, 2005. 

FOR FURTHER INFORMATION CONTACT: 

Susan M. Hiller, Northwest Marketing 

Field Office, Marketing Order 

Administration Branch, Fruit and 

Vegetable Programs, AMS, USDA; 

Telephone: (503) 326–2724, Fax: (503) 

326–7440; or George Kelhart, Technical 

Advisor, 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. 

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 

No. 130 and Marketing Order No. 958, 

both as amended (7 CFR part 958), 

regulating the handling of onions grown 

in designated counties in Idaho, and 

Malheur County, Oregon, 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 marketing order now 

in effect, Idaho-Eastern Oregon onion 

handlers are subject to assessments. 

Funds to administer the order are 

derived from such assessments. It is 

intended that the assessment rate as 

issued herein will be applicable to all 

assessable onions beginning July 1, 

2005, and continue until amended, 

suspended, or terminated. 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. Such 

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 decreased the assessment 

rate established for the Committee for 

the 2005–2006 and subsequent fiscal 

periods from $0.105 per hundredweight 

to $0.10 per hundredweight of onions 

handled. 

The Idaho-Eastern Oregon onion 

marketing order provides authority for 

the Committee, with the approval of 

USDA, to formulate an annual budget of 

expenses and collect assessments from 

handlers to administer the program. The 

members of the Committee are 

producers and handlers of Idaho-Eastern 

Oregon onions. They are familiar with 

the Committee’s needs and with the 

costs for goods and services in their 

local area and are thus in a position to 

formulate an appropriate budget and 

assessment rate. The assessment rate is 

formulated and discussed in a public 

meeting. Thus, all directly affected 

persons have an opportunity to 

participate and provide input. 

For the 2004–2005 and subsequent 

fiscal periods, the Committee 

recommended, and USDA approved, an 

assessment rate that would continue in 

effect from fiscal period to fiscal period 

unless modified, suspended, or 

terminated by USDA upon 

recommendation and information 

submitted by the Committee or other 

information available to USDA. 

The Committee met on April 14, 2005, 

and unanimously recommended 2005–

2006 expenditures of $956,001 and an 

assessment rate of $0.10 per 

hundredweight of onions. In 

comparison, last year’s budgeted 

expenditures were $997,442. The 

assessment rate of $0.10 is $0.005 lower 

than the previous rate. The decreased 

assessment rate recommended by the 

Committee reflects the reduction in 

anticipated expenditures. 

Both producers and handlers in the 

regulated production area expressed a 

need to decrease the assessment rate to 

help offset the lower prices received by 

handlers. The National Agricultural 

Statistics Service (NASS) reported in the 

Vegetables 2004 Summary, published in 

January 2005, that the 2004 average 

F.O.B. price for the Idaho-Eastern 

Oregon onions was $8.14 per 

hundredweight. That price is $1.42 

below the three year average F.O.B. 

price of $9.56 per hundredweight for 

this production area. The Committee 

considered assessment rates lower than 

$0.10 per hundredweight; however, it 

determined that the lower rates would 

not generate the income necessary to 

sustain the current level of programs 

desired by the industry. 

The major expenditures 

recommended by the Committee for the 

2005–2006 year include $10,000 for 

committee expenses, $104,371 for salary 

expenses, $81,160 for travel/office 

expenses, $62,470 for production 

research expenses, $32,000 for export 

market development expenses, $616,000 

for promotion expenses, and $50,000 for 

unforeseen marketing order 

contingencies. Budgeted expenses for 

these items in 2004–2005 were $10,000 

$13,482, $81,960, $60,000, $32,000, 

$600,000, and $50,000, respectively. 

The Committee based its 

recommended assessment rate decrease 

on the 2005–2006 crop estimate, the 

2005–2006 program expenditure needs, 

and the current and projected size of its 

monetary reserve. The Committee 

estimated onion shipments for 2005–

2006 at 8,464,000 hundredweight which 

should provide $846,400 in assessment 

income. Income derived from handler 

assessments, along with contributions 

($73,600), interest income ($7,400), 

other income ($2,000), and funds from 

the Committee’s authorized reserve 

($26,601), should be adequate to cover 

budgeted expenses. The Committee 

estimates that its operating reserve will 

be approximately $596,074 at the end of 

the 2005–2006 fiscal period. Funds in 

the reserve will be kept within the 

maximum permitted by the order of 

approximately one fiscal year’s 

operational expenses (§ 958.44). 

The assessment rate will continue in 

effect indefinitely unless modified, 

suspended, or terminated by USDA 

upon recommendation and information 

submitted by the Committee or other 

available information. 

Although this assessment rate is 

effective for an indefinite period, the 

Committee will continue to meet prior 

51580 Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 

to or during each fiscal period to 

recommend a budget of expenses and 

consider recommendations for 

modification of the assessment rate. The 

dates and times of Committee meetings 

are available from the Committee or 

USDA. Committee meetings are open to 

the public and interested persons may 

express their views at these meetings. 

USDA will evaluate Committee 

recommendations and other available 

information to determine whether 

modification of the assessment rate is 

needed. Further rulemaking will be 

undertaken as necessary. The 

Committee’s 2005–2006 budget and 

those for subsequent fiscal periods will 

be reviewed and, as appropriate, 

approved by USDA. 

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 rule 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 the rules issued thereunder, are 

unique in that they are brought about 

through group action of essentially 

small entities acting on their own 

behalf. Thus, both statutes have small 

entity orientation and compatibility. 

There are approximately 233 

producers of onions in the production 

area and approximately 37 handlers 

subject to regulation under the 

marketing order. Small agricultural 

producers are defined by the Small 

Business Administration (SBA) (13 CFR 

121.201) as those having annual receipts 

of less than $750,000, and small 

agricultural service firms are defined as 

those whose annual receipts are less 

than $6,000,000. 

According to the NASS Vegetables 

2004 Summary, the total F.O.B. value of 

onions in the regulated production area 

for 2004 was $110,355,000. Therefore, 

based on an industry of 233 producers 

and 37 handlers, it can be concluded 

that the majority of handlers and 

producers of Idaho-Eastern Oregon 

onions may be classified as small 

entities. 

This rule continues in effect the 

action that decreased the assessment 

rate established for the Committee and 

collected from handlers for the 2005–

2006 and subsequent fiscal periods from 

$0.105 to $0.10 per hundredweight of 

onions. The Committee unanimously 

recommended 2005–2006 expenditures 

of $956,001 and an assessment rate of 

$0.10 per hundredweight. The 

assessment rate of $0.10 is $0.005 lower 

than the rate in effect during the 2004–

2005 fiscal period. The quantity of 

assessable onions for the 2005–2006 

year is estimated at 8,464,000 

hundredweight which should provide 

$846,400 in assessment income. Income 

derived from handler assessments, along 

with contributions ($73,600), interest 

income ($7,400), other income ($2,000), 

and funds from the Committee’s 

authorized reserve ($26,601), should be 

adequate to cover budgeted expenses. 

The decreased assessment rate 

recommended by the Committee reflects 

the reduction in anticipated 

expenditures from $997,442 to 

$956,001. 

Both producers and handlers in the 

regulated production area expressed a 

need to decrease the assessment rate to 

help offset the lower prices received by 

handlers. The NASS reported in the 

Vegetables 2004 Summary, which was 

published in January 2005, that the 2004 

average F.O.B. price for the IdahoEastern Oregon onions was $8.14 per 

hundredweight. That price is $1.42 

below the three-year average F.O.B. 

price of $9.56 per hundredweight for 

this production area. The Committee 

considered lower assessment rates; 

however, it determined that lower rates 

would not generate the income 

necessary to sustain the current level of 

programs desired by the industry. 

The major expenditures 

recommended by the Committee for the 

2005–2006 year include $10,000 for 

committee expenses, $104,371 for salary 

expenses, $81,160 for travel/office 

expenses, $62,470 for production 

research expenses, $32,000 for export 

market development expenses, $616,000 

for promotion expenses, and $50,000 for 

unforeseen marketing order 

contingencies. Budgeted expenses for 

these items in 2004–2005 were $10,000, 

$163,482, $81,960, $60,000, $32,000, 

$600,000, and $50,000, respectively. 

The Committee reviewed and 

unanimously recommended 2005–2006 

expenditures of $956,001 which 

includes decreases in salary expenses 

and travel/office expenses, as well as 

increases in production research 

expenses and promotion expenses. Prior 

to arriving at this budget, the Committee 

considered information from various 

sources, such as the Committee’s 

Executive, Promotion, Research, and 

Export subcommittees. These 

subcommittees discussed alternative 

expenditure levels, based upon the 

relative value of various research and 

promotion projects to the onion 

industry. The assessment rate of $0.10 

per hundredweight of assessable onions 

was then determined by taking into 

consideration the estimated level of 

assessable shipments, the market 

situation, program expenditure needs, 

and the desire to sustain a monetary 

reserve at a viable level. 

A review of historical information and 

preliminary information pertaining to 

the upcoming year indicates that the 

producer price for the 2005–2006 season 

could range between $5.50 and $8.00 

per hundredweight of onions. Therefore, 

the estimated assessment revenue for 

the 2005–2006 year as a percentage of 

total producer revenue could range 

between 1.82 and 1.25 percent. 

This action continues in effect the 

action that decreased the assessment 

obligation imposed on handlers. 

Assessments are applied uniformly on 

all handlers, and some of the costs may 

be passed on to producers. However, 

decreasing the assessment rate reduces 

the burden on handlers, and may reduce 

the burden on producers. In addition, 

the Committee’s meeting was widely 

publicized throughout the Idaho-Eastern 

Oregon onion industry and all 

interested persons were invited to 

attend the meeting and participate in 

Committee deliberations on all issues. 

Like all Committee meetings, the April 

14, 2005, meeting was a public meeting 

and all entities, both large and small, 

were able to express views on this issue. 

This action imposes no additional 

reporting or recordkeeping requirements 

on either small or large Idaho-Eastern 

Oregon onion handlers. 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. 

USDA has not identified any relevant 

Federal rules that duplicate, overlap, or 

conflict with this rule. 

An interim final rule concerning this 

action was published in the Federal 

Register on June 3, 2005 (70 FR 32481). 

Copies of that rule were made available 

by the Committee’s staff to all 

producers, handlers, and interested 

persons. In addition, the rule was made 

available through the internet by USDA 

and the Office of the Federal Register. A 

60-day comment period was provided 

for interested persons to respond to the 

interim final rule. The comment period 

ended on August 2, 2005. One response 

was received, but it was not relevant to 

the assessment rate decrease. 

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 

Federal Register / Vol. 70, No. 168 / Wednesday, August 31, 2005 / Rules and Regulations 51581 

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 

information and recommendation 

submitted by the Committee and other 

available information, it is hereby found 

that this rule, as hereinafter set forth, 

will tend to effectuate the declared 

policy of the Act. 

List of Subjects in 7 CFR Part 958 

Onions, Marketing agreements, 

Reporting and recordkeeping 

requirements. 

PART 958—ONIONS GROWN IN 

CERTAIN DESIGNATED COUNTIES IN 

IDAHO, AND MALHEUR COUNTY, 

OREGON 

■ Accordingly, the interim final rule 

amending 7 CFR part 958 which was 

published at 70 FR 32481 on June 3, 

2005, is adopted as a final rule without 

change. 

Dated: August 25, 2005. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. 05–17269 Filed 8–30–05; 8:45 am] 

BILLING CODE 3410–02–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Chapter I 

Energy Policy Act of 2005 

Requirements; Treatment of 

Accelerator-Produced and Other 

Radioactive Material as Byproduct 

Material; Waiver 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Time-limited waiver of Energy 

Policy Act of 2005 requirements. 

SUMMARY: The Nuclear Regulatory 

Commission (NRC) is issuing a timelimited waiver of the requirements 

enacted by section 651(e) of the Energy 

Policy Act of 2005, titled ‘‘Treatment of 

Accelerator-Produced and Other 

Radioactive Material as Byproduct 

Material’’, as they pertain to byproduct 

material as defined in paragraphs (3) 

and (4) of section 11 e. of the Atomic 

Energy Act of 1954, as added by section 

651(e). The waiver will allow persons 

owning, using, and otherwise engaging 

in activities involving the material to 

continue with their activities and States 

to continue to regulate this material 

during the applicable waiver period. 

DATES: This waiver is effective August 

31, 2005. This waiver is effective 

through August 7, 2006, for the import 

and export of materials covered by the 

waiver, unless terminated sooner if the 

Commission determines that an earlier 

termination is warranted. For all other 

matters, it is effective through August 7, 

2009, unless terminated sooner if the 

Commission determines that an earlier 

termination is warranted or required. 

FOR FURTHER INFORMATION CONTACT: 

Susan Chidakel, Office of the General 

Counsel, U.S. Nuclear Regulatory 

Commission, Washington, DC 20555–

0001, telephone (301) 415–1535, e-mail 

ssc@nrc.gov or Merri Horn, Office of 

Nuclear Material Safety and Safeguards, 

U.S. Nuclear Regulatory Commission, 

Washington, DC 20555–0001, telephone 

(301) 415–8126, e-mail, mlh1@nrc.gov. 

SUPPLEMENTARY INFORMATION: The 

President of the United States signed the 

Energy Policy Act of 2005 on August 8, 

2005. The provisions of the Act became 

effective immediately, unless another 

effective date was expressly provided. 

Since no effective date was stated for 

the provisions of section 651(e) of the 

Act, section 651(e) became effective 

immediately, and brought byproduct 

material, as defined in paragraphs (3) 

and (4) of section 11 e. of the Atomic 

Energy Act of 1954 (42 U.S.C. 2201 et 

seq.), as added by section 651(e)(1), 

under the immediate regulatory 

authority of the Nuclear Regulatory 

Commission. 

Section 11 e.(3) of the Atomic Energy 

Act of 1954 now includes as byproduct 

material: (i) any discrete source of 

radium-226 that is produced, extracted, 

or converted after extraction (before, on, 

or after the date of enactment of section 

651(e) of the Energy Policy Act of 2005), 

for use for a commercial, medical, or 

research activity; and (ii) any material 

that has been made radioactive by use 

of a particle accelerator and is 

produced, extracted, or converted after 

extraction (before, on, or after the date 

of enactment of section 651(e) of the 

Energy Policy Act of 2005), for use for 

a commercial, medical, or research 

activity. Section 11 e.(4) expands the 

definition to include any discrete source 

of naturally occurring radioactive 

material, other than source material, if 

certain conditions are met. Section 11 

e.(4) is considered to be a place-holder 

and NRC staff does not anticipate a need 

for active regulation of the latter 

material at this time. 

Prior to enactment of the Energy 

Policy Act of 2005, the NRC did not 

have authority over the newly covered 

byproduct material, and it fell under the 

authority of the States. Therefore, the 

NRC does not currently have regulations 

in place that would specifically apply to 

the material. With the enactment of the 

Energy Policy Act of 2005, the States 

may no longer assert the authority to 

regulate the newly covered byproduct 

material, except as authorized to do so 

by the Act. 

The Energy Policy Act of 2005 allows 

the Commission up to 18 months after 

the date of enactment to issue final 

regulations for the newly covered 

byproduct material. To facilitate an 

orderly transition of regulatory authority 

with respect to the newly defined 

byproduct material, the Act also 

provides for preparation and 

publication of a transition plan for 

States that have not previously entered 

into an Agreement with the Commission 

under section 274 b of the Atomic 

Energy Act and for those States that 

have entered into such an Agreement. 

However, neither the regulations nor the 

transition plan have yet been developed. 

Until such time as the regulations and 

transition plan have been completed 

and are in place, persons that engage in 

activities involving the material will 

want to continue with their activities. 

To ease the transition period from 

individualized State programs to a more 

uniform regulatory program developed 

under the Atomic Energy Act and its 

section 274b Agreement State Program, 

section 651(e) of the Energy Policy Act 

of 2005 authorizes the Commission to 

issue waivers of its authority. Waivers of 

the Commission’s jurisdiction will 

permit existing State authorities to 

continue. Ultimate transition from NRC 

to State authority for those States with 

an existing Agreement State program is 

expected to proceed easily. For States 

without such programs currently, that 

want to enter into an agreement with the 

NRC, this waiver period will permit 

them to go through the processes 

necessary to establish and carry out an 

Agreement State program to regulate 

this material after the waiver period 

expires. 

Section 651(e)(5) authorizes the 

Commission to grant a waiver to any 

entity of any requirement under section 

651(e) with respect to a matter relating 

to the newly defined byproduct 

material, except as required by section 

651(e)(5)(B)(i)(l). Thus, such a waiver 

can also be granted to entities that 

engage in activities involving the 

material. Without the waiver, States that 

seek to continue regulation of the 

material would be, and persons that 

carry on activities involving the newly 

defined byproduct material could be, in 

technical violation of the Atomic Energy 

Act of 1954, as amended by section 

651(e) of the Energy Policy Act of 2005.