Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Notices 5707

SUPPLEMENTARY INFORMATION: On 

September 21, 1999, the National 

Science Foundation issued a five-year 

permit (ACA #2000–001) to Dr. Steven 

D. Emslie after posting a notice in the 

August 17, 1999 Federal Register. 

Public comments were not received. A 

request to modify the permit was posted 

in the Federal Register on December 20, 

2004. No public comments were 

received. The modification was issued 

by the Foundation on January 19, 2005.

Polly A. Penhale, 

Environmental Officer.

[FR Doc. 05–2011 Filed 2–2–05; 8:45 am] 

BILLING CODE 7555–01–M

NUCLEAR REGULATORY 

COMMISSION 

[Docket No. 30–19882, License No. 52–

21175–01, EA–04–118] 

Baxter Health Care, Aibonito, PR; 

Confirmatory Order Modifying License 

(Effective Immediately) 

Baxter Health Care Corporation 

(Baxter or Licensee) is the holder of 

NRC License No. 52–21175–01 (License) 

which authorizes the Licensee to 

operate an irradiator at its facility in 

Aibonito, Puerto Rico. 

On October 25, 2004, the NRC issued 

a Notice of Violation and Proposed 

Imposition of Civil Penalties (Notice) in 

the amount of $44,400 to Baxter 

Healthcare Corporation (Baxter) based 

on six violations of NRC requirements. 

The circumstances associated with these 

violations were reviewed by the NRC 

during an Augmented Inspection Team 

(AIT) inspection conducted between 

April 22, 2004, and June 1, 2004, after 

a Baxter representative informed the 

NRC on April 21, 2004, that an event 

had occurred at the facility. The event 

involved two individuals (an irradiator 

operator and assistant) bypassing safety 

interlocks and entering the irradiator at 

a time when an irradiator source rack 

(containing 2,000,000 curies of cobalt60) was stuck in an unshielded position. 

The three most significant violations 

cited by the NRC in its October 25, 2004 

Notice were described in Section I. The 

first violation cited in Section I of the 

Notice involved the failure to adhere to 

emergency and abnormal event 

procedures when the safety interlocks 

were bypassed even though the 

irradiator source rack fault indicator 

was illuminated and the source travel 

alarm had sounded for an extended 

period. This occurred on at least three 

occasions, including when the source 

rack was stuck in the unshielded 

position on April 21, 2004. This created 

the potential for a lethal exposure to 

radiation for the two individuals who 

entered the area while the sources were 

exposed, since, as previously indicated, 

the individuals passed through an area 

with a radiation level at least as high as 

1600 rads/hour, and were planning to 

enter an area with much higher 

radiation levels (as high as 100,000 

rads/hour in the irradiator cell). By 

bypassing the safety interlocks, a system 

designed to prevent a serious safety 

event was rendered inoperable, which 

created the potential for significant 

injury and loss of life. Therefore, in the 

Notice, the NRC classified this violation 

at Severity Level II and proposed a civil 

penalty in the amount of $28,800 

($9,600 for each of the minimum three 

occasions that the violation occurred). 

The second violation cited set forth in 

Section I involved the failure to perform 

an adequate survey prior to the two 

individuals entering the irradiator on 

April 21, 2004. Prior to the entry, the 

operators did not adequately check the 

irradiator cell radiation monitor, did not 

adequately check the radiation levels 

outside the irradiator facility, and did 

not adequately do other such surveys as 

were reasonable to determine that a 

source rack was stuck in the unshielded 

position and had not returned to the 

fully shielded position. The NRC also 

classified this violation at Severity Level 

II and proposed a $9,600 civil penalty 

for the violation.

The third violation cited by the NRC 

in Section I of the Notice involved the 

failure by the irradiator operator to 

supply his assistant an individual 

radiation monitoring device when the 

two individuals entered the irradiator 

on April 21, 2004, while a source rack 

was stuck in the unshielded position. 

Based on the OI investigation, the NRC 

concluded that this violation was 

willful. The NRC classified this 

violation at Severity Level III and 

proposed a $6,000 civil penalty. 

The letter transmitting the Notice also 

described the Licensee’s corrective 

actions, which included, but were not 

limited to: (1) Revision to procedures for 

responding to emergency conditions 

and performing necessary surveys; (2) 

plans to annually review the standard 

operating procedures for adequacy; (3) 

upgrade of the training program and 

retraining of staff on revised procedures, 

survey techniques, and dosimetry use; 

and (4) increased management oversight 

of the irradiator program, including: (a) 

Monthly reviews of the irradiator 

department by the Plant General 

Manager, Manufacturing Director, 

Radiation Safety Officer (RSO), and the 

assistant RSO (ARSO); (b) annual 

internal audits of the irradiator by the 

Environmental Health and Safety 

Manager and RSO; and (c) additional 

periodic audits of the irradiator by the 

corporate environmental health and 

safety group as well as by an external 

consultant. 

The other three violations cited in the 

Notice were described in Section II and 

the NRC classified those violations at 

Severity Level IV. 

In response to the October 25, 2004 

Notice, Baxter requested use of the NRC 

Alternate Dispute Resolution Process 

(ADR) to resolve differences it had with 

the NRC concerning the Notice. ADR is 

a process in which a neutral mediator 

with no decision-making authority 

assists the NRC and Baxter in reaching 

an agreement on resolving any 

differences regarding the enforcement 

action. An ADR session was held 

between Baxter and NRC in 

Philadelphia, Pennsylvania on 

December 13, 2004, and was mediated 

by a professional mediator, arranged 

through Cornell University’s Institute of 

Conflict Management. During that ADR 

session, a settlement agreement was 

reached. The elements of the settlement 

agreement, which were documented in 

a letter from Mr. Peter Etienne, Senior 

Counsel, Baxter, to the NRC on 

December 17, 2004, consisted of the 

following: 

A. Baxter agrees to pay a civil penalty 

of $31,200.00 for Violations I.A, I.B and 

I.C. The NRC will characterize these 

violations as a Severity Level II 

problem. 

B. Baxter and the NRC agree to 

disagree on the willful characterization 

of Violation I.C. 

C. NRC agrees to treat Violations II.A, 

II.B, and II.C as non-cited violations. 

D. Baxter agrees to implement the 

corrective action as documented in 

Baxter’s letter dated August 23, 2004, 

except that with respect to item 1(c) in 

that letter, (‘‘Additional External Review 

by Outside Consultant’’), that item is 

replaced by the terms of the December 

13, 2004, settlement. Specifically, 

Baxter agrees to provide for reviews of 

irradiator operations to be conducted by 

a qualified consultant, with such review 

to include a review of operations, 

maintenance, radiation safety and the 

RSO and ARSO functions. Review 

results will be documented and made 

available to NRC during inspections 

conducted by the NRC. Such reviews to 

be conducted as noted below.

E. A review by the qualified external 

consultant will be conducted in 2005 of 

the RSO and ARSO function to 

supplement the reviews done in 2004. 

F. In 2007, a qualified external 

consultant will conduct a full review as 

listed in Item D. 

5708 Federal Register / Vol. 70, No. 22 / Thursday, February 3, 2005 / Notices 

1 15 U.S.C. 78l(d). 2 17 CFR 240.12d2–2(d).

G. In 2007 after the full review, Baxter 

will discuss with NRC whether Baxter 

will need to continue to use a qualified 

external consultant. It is anticipated that 

the last external consultant review will 

be completed in 2007. In no event shall 

such review extend beyond one 

additional review in 2009 in the context 

of this Agreement. 

H. Baxter will submit to the NRC a 

letter within two weeks (by December 

27, 2004) which documents the 

Agreement. (Met by Baxter’s December 

17, 2004 letter). 

I. Upon issuance of a Confirmatory 

Order by the NRC, confirming the 

Agreement reached by the parties on 

December 13, Baxter will pay the Civil 

Penalty in the amount of $31,200.00 

within thirty days of the date of 

issuance of that Confirmatory Order. 

Since the licensee has agreed to take 

additional actions to address NRC 

concerns, as set forth in Item III above, 

the NRC has concluded that its concerns 

can be resolved through the NRC’s 

confirmation of the licensee 

commitments as outlined in this Order. 

I find that the licensee’s commitments 

as set forth in Section III above are 

acceptable and conclude that with these 

commitments, the public health and 

safety are reasonably assured. However, 

in view of the foregoing, I have 

determined that public health and safety 

require that these commitments be 

confirmed by this Order. Based on the 

above and the licensee’s consent, this 

Order is immediately effective upon 

issuance. The licensee is required to 

provide the NRC with a letter 

summarizing all of its actions, up to and 

including, its last external consultant 

review that is to be completed in 2007. 

Accordingly, pursuant to Sections 81, 

161b, 161i, 161o, 182, and 186 of the 

Atomic Energy Act of 1954, as amended, 

and the Commission’s regulations in 10 

CFR 2.202 and 10 CFR part 30, It is 

hereby ordered, effective immediately 

that: 

A. Baxter pay a civil penalty of 

$31,200.00 for Violations I.A, I.B and 

I.C. set forth in the NRC October 25, 

2004 Notice. (The NRC will characterize 

these violations as a Severity Level II 

problem. Also, Baxter and the NRC 

agree to disagree on the willful 

characterization of Violation I.C, and the 

NRC agrees to treat Violations II.A, II.B, 

and II.C as non-cited violations). 

B. Baxter implement the corrective 

actions a documented in its August 23, 

2004, letter except that with respect to 

item 1(c) in that letter (‘‘Additional 

External Review by Outside 

Consultant’’), that item is replaced by 

the terms of the December 13, 2004, 

settlement. Specifically, Baxter will 

provide for reviews of irradiator 

operations to be conducted by a 

qualified consultant with such review to 

include a review of operations, 

maintenance, radiation safety and the 

RSO and ARSO functions. Review 

results will be documented and made 

available to NRC during inspections 

conducted by NRC. Such reviews to be 

conducted as noted below. 

1. A review by the qualified external 

consultant will be conducted in 2005 of 

the RSO and ARSO function to 

supplement the reviews done in 2004. 

2. In 2007, a qualified external 

consultant will conduct a full review as 

listed in Item B. 

3. In 2007 after the full review, Baxter 

will discuss with NRC whether Baxter 

will need to continue to use a qualified 

external consultant, although it is 

anticipated that the last external 

consultant review will be completed in 

2007, and in no event, shall such review 

extend beyond one additional review in 

2009 in the context of the Agreement. 

The Director, Office of Enforcement 

may relax or rescind, in writing, any of 

the above conditions upon a showing by 

the licensee of good cause. 

Any person adversely affected by this 

Confirmatory Order, other than the 

licensee, may request a hearing within 

20 days of its issuance. Where good 

cause is shown, consideration will be 

given to extending the time to request a 

hearing. A request for extension of time 

must be made in writing to the Director, 

Office of Enforcement, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555, and must include a statement 

of good cause for the extension. Any 

request for a hearing shall be submitted 

to the Secretary, U.S. Nuclear 

Regulatory Commission, ATTN: Chief, 

Rulemaking and Adjudications Staff, 

Washington, DC 20555. Copies of the 

hearing request shall also be sent to the 

Director, Office of Enforcement, U.S. 

Nuclear Regulatory Commission, 

Washington DC 20555, to the Assistant 

General Counsel for Materials Litigation 

and Enforcement, to the Director of the 

Division of Regulatory Improvement 

Programs at the same address, and to 

Baxter. Because of continuing 

disruptions in delivery of mail to United 

States Government offices, it is 

requested that answers and requests for 

hearing be transmitted to the Secretary 

of the Commission either by means of 

facsimile transmission to (301) 415–

1101 or by e-mail to 

hearingdocket@nrc.gov and also to the 

Office of the General Counsel by means 

of facsimile transmission to (301) 415–

3725 or e-mail to 

OGCMailCenter@nrc.gov. If such a 

person requests a hearing, that person 

shall set forth with particularity the 

manner in which his interest is 

adversely affected by this Order and 

shall address the criteria set forth in 10 

CFR 2.309(d). 

If a hearing is requested by a person 

whose interest is adversely affected, the 

Commission will issue an Order 

designating the time and place of any 

hearing. If a hearing is held, the issue to 

be considered at such hearing shall be 

whether this Confirmatory Order shall 

be sustained. An answer or a request for 

a hearing shall not stay the effectiveness 

date of this order.

Dated this 26th day of January 2005.

For the Nuclear Regulatory Commission. 

Frank Congel, Director, 

Office of Enforcement.

[FR Doc. 05–2026 Filed 2–2–05; 8:45 am] 

BILLING CODE 7590–01–P

SECURITIES AND EXCHANGE 

COMMISSION 

Issuer Delisting; Notice of Application 

of Boston Restaurant Associates, Inc. 

To Withdraw Its Common Stock, $.01 

par value, From Listing and 

Registration on the Boston Stock 

Exchange, Inc.; File No. 1–13320 

January 28, 2005. 

On January 11, 2005, Boston 

Restaurant Associates, Inc., a Delaware 

corporation (‘‘Issuer’’), filed an 

application with the Securities and 

Exchange Commission (‘‘Commission’’), 

pursuant to Section 12(d) of the 

Securities Exchange Act of 1934 

(‘‘Act’’) 1 and Rule 12d2–2(d) 

thereunder,2 to withdraw its common 

stock, $.01 par value (‘‘Security’’), from 

listing and registration on the Boston 

Stock Exchange, Inc. (‘‘BSE’’).

On December 23, 2004, the Board of 

Directors (‘‘Board’’) of the Issuer 

approved a resolution to withdraw the 

Issuer’s Security from listing and 

registration on the BSE. The Issuer 

stated: (1) That on December 20, 2004, 

the BSE notified the Issuer that the BSE 

would suspend trading of the Security 

at the close of business that same day. 

The suspension was the result of a 

failure of the Issuer to maintain a 

minimum of $500,000 of stockholder’s 

equity as required by the BSE. (2) After 

careful consideration the Issuer decided 

to request a voluntary delisting of the 

Security from the BSE. The Issuer stated 

that the Security currently trades on the 

OTC Bulletin Board. 

The Issuer stated in its application 

that it has complied with BSE