Federal Register / Vol. 72, No. 202 / Friday, October 19, 2007 / Rules and Regulations 59157 

1Section 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. 

2Section 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. 

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 (nonAgreement States). The plan must also 

include a description of the conditions 

under which a State may exercise 

regulatory authority over the new 

byproduct material. 

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. 

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 


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3Note: At this time, NRC has not identified any 

NORM currently in use that would meet the 

definition of section 11e.(4). 

naturally occurring radioactive material 

(NORM),3 other than source material, 

that—

(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 nonmilitary 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 acceleratorproduced 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 radium226, 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. 


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4The Commission understands that the 

Agreement States license NARM and section 11e.(1) 

byproduct material without distinguishing between 

the materials. 

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. 

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 


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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., ‘‘NonAgreement 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. 


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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 timelimited 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. 


sroberts on PROD1PC70 with RULES
59162 Federal Register / Vol. 72, No. 202 / Friday, October 19, 2007 / Rules and Regulations 

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] 

BILLING CODE 7590–01–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 20 

RIN 3150–AI22 

National Source Tracking of Sealed 

Sources; Revised Compliance Dates 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Final rule. 

SUMMARY: The Nuclear Regulatory 

Commission (NRC) is amending its 

regulations to revise the compliance 

dates for licensees to begin reporting 

source transactions and initial source 

inventory information to the National 

Source Tracking System for nationally 

tracked sources. No other requirements 

related to the National Source Tracking 

System are being revised by this rule. 

DATES: Effective Date: This final rule is 

effective October 19, 2007. Compliance 

Dates: Compliance with the reporting 

provisions in 10 CFR 20.2207 is 

required by January 31, 2009 for both 

Category 1 sources and Category 2 

sources. 

FOR FURTHER INFORMATION CONTACT: 

Merri Horn, Office of Federal and State 

Materials and Environmental 

Management Programs, U.S. Nuclear 

Regulatory Commission, Washington, 

DC 20555–0001; telephone (301) 415–

8126, e-mail, mlh1@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Discussion and Need for the Rule 

The President signed the Energy 

Policy Act of 2005 (Pub. L. 109–58, 119 

Stat. 594) into law on August 8, 2005. 

It contains a provision on national 

source tracking that requires the NRC to 

issue regulations establishing a 

mandatory tracking system for radiation 

sources in the United States. The NRC 

issued the final rule for the National 

Source Tracking System on November 8, 

2006 (71 FR 65686). 

The National Source Tracking System 

rule requires licensees to report 

information on the manufacture, 

transfer, receipt, disassembly, and 

disposal of nationally tracked sources. 

This information will be entered into a 

computerized data base. The National 

Source Tracking System will capture 

information on the origin of each 

nationally tracked source (manufacture 

or import), all transfers to other 

licensees, all receipts of nationally 

tracked sources, and endpoints of each 

nationally tracked source (disassembly, 

disposal, decay, or export). Ultimately, 

the National Source Tracking System 

will be able to provide a domestic life 

history account of all nationally tracked 

sources. 

The compliance dates for licensees to 

report initial source inventories was 

November 15, 2007, for Category 1 

sources and November 30, 2007, for 

Category 2 sources. These were also the 

dates to start reporting source 

transactions for entry into the system. 

The NRC anticipated that system 

development and all testing would be 

complete and the National Source 

Tracking System would be operational 

by November 2007. However, system 

development has taken longer than 

anticipated and the system will not be 

ready to accept data by November 2007. 

Therefore, the NRC is revising the 

compliance dates for which reporting is 

to start. 

The requirements for Category 1 

nationally tracked sources will now be 

implemented by January 31, 2009. This 

means that by this date any licensee that 

possesses a Category 1 level source must 

have reported its initial inventory and 

must begin reporting all transactions 

involving Category 1 sources to the 

National Source Tracking System. The 

requirements for Category 2 nationally 

tracked sources will also be 

implemented by January 31, 2009. By 

this date, all licensees must have 

reported their initial inventories of 

Category 2 nationally tracked sources 

and begin reporting all transactions to 

the National Source Tracking System. 

II. Section by Section Analysis of 

Substantive Changes 

Section 20.2207—Reports of 

Transactions Involving Nationally 

Tracked Sources 

Paragraph (h) is revised to require a 

licensee to report its initial inventory of 

Category 1 nationally tracked sources by 

January 31, 2009, and the inventory of 

Category 2 nationally tracked sources by 

January 31, 2009. 

III. Bases and Findings for Dispensing 

With Notice and Comment and for 

Making Rule Immediately Effective 

Generally, NRC rulemaking involves 

issuing rules using the public notice and 

comment procedures set forth in the 

Administrative Procedure Act (APA). 

Typically, a proposed rule is issued for 

comment and any comments submitted 

are evaluated in the agency’s 

development of the final rule. But under 

5 U.S.C 553(b)(3)(B), a Federal agency 

such as the NRC may dispense with 

those procedures where it finds for 

‘‘good cause’’ that notice and public 

procedures thereon are ‘‘impracticable, 

unnecessary, or contrary to the public 

interest.’’ In this case, notice-andcomment procedures are not required 

because the usual public rulemaking 

procedures are impracticable. The 

National Source Tracking System will 

not be ready to accept data received 

from licensees by the original 

compliance dates in the final rule. 

Compliance with the rule by those dates 

is not feasible, and no purpose would be 

served by seeking public comment on 

whether to extend the compliance dates. 

Therefore, under 5 U.S.C. 553(b)(3)(B), 

good cause exists to dispense with 

notice and comment procedures. 

In addition, this rule is immediately 

effective upon publication in 

accordance with 5 U.S.C. 553(d)(1) 

because it is a substantive rule granting 

or recognizing an exemption or relieving 

a restriction. Specifically, the rule 


sroberts on PROD1PC70 with RULES