54744 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Proposed Rules 

The Committee unanimously 

recommended these changes at various 

public meetings and interested parties 

had an opportunity to provide input. 

Also, Florida avocado producers and 

handlers are aware of these changes. All 

written comments timely received will 

be considered before a final 

determination is made on this matter. 

List of Subjects in 7 CFR Part 915 

Avocados, Reporting and 

recordkeeping requirements. 

For the reasons set forth in the 

preamble, 7 CFR part 915 is proposed to 

be amended as follows: 

PART 915—AVOCADOS GROWN IN 

SOUTH FLORIDA 

1. The authority citation for 7 CFR 

part 915 continues to read as follows: 

Authority: 7 U.S.C. 601–674. 

2. Two new paragraphs (d) and (e) are 

added to § 915.305 to read as follows: 

§ 915.305 Florida Avocado Container 

Regulation 5. 

* * * * * 

(d) Avocados handled for the fresh 

market in containers other than those 

authorized under § 915.305(a) and 

shipped to destinations within the 

production area must be packed in 1- 

bushel containers. 

(e) All containers in which the 

avocados are packed must be new, and 

clean in appearance, without marks, 

stains, or other evidence of previous 

use. 

2. In § 915.306, paragraphs (a)(1), 

(a)(6) and (a)(7) are revised to read as 

follows: 

§ 915.306 Florida avocado grade, pack, 

and container marking regulation. 

(a) * * * 

(1) Such avocados grade at least U.S. 

No. 2, except that avocados handled to 

destinations within the production area 

may be placed in containers with 

avocados of dissimilar varietal 

characteristics. 

* * * * * 

(6) Such avocados when handled in 

containers authorized under § 915.305, 

except for those to export destinations, 

are marked once with the grade of fruit 

in letters and numbers at least 1 inch in 

height on the top or one side of the 

container, not to include the bottom. 

(7) Such avocados when handled in 

containers other than those authorized 

under § 915.305(a) for shipment to 

destinations within the production area 

are marked once with the grade of fruit 

in letters and numbers at least 3 inches 

in height on the top or one side of the 

container, not to include the bottom. 

Each such container is also to be marked 

at least once with either the registered 

handler number assigned to the handler 

at the time of certification as a registered 

handler or with the name and address 

of the handler. 

* * * * * 

Dated: September 17, 2008. 

Lloyd C. Day, 

Administrator, Agricultural Marketing 

Service. 

[FR Doc. E8–22147 Filed 9–22–08; 8:45 am] 

BILLING CODE 3410–02–P 

NUCLEAR REGULATORY 

COMMISSION 

10 CFR Part 50 

[Docket No. PRM–50–83; NRC–2007–0012] 

David Lochbaum on Behalf of the 

Project on Government Oversight and 

the Union of Concerned Scientists 

AGENCY: Nuclear Regulatory 

Commission. 

ACTION: Petition for rulemaking; denial. 

SUMMARY: The U.S. Nuclear Regulatory 

Commission (NRC) is denying a petition 

for rulemaking submitted by Mr. David 

Lochbaum on behalf of the Project on 

Government Oversight (POGO) and the 

Union of Concerned Scientists (UCS) on 

February 23, 2007. The petitioner 

requested that the NRC amend its 

regulations governing domestic 

licensing of production and utilization 

facilities to require periodic 

demonstrations by applicable local, 

State, and Federal entities to ensure that 

nuclear power plants can be adequately 

protected against radiological sabotage 

by adversaries with capabilities that 

exceed those posed by the design basis 

threat (DBT). 

DATES: The docket for the petition for 

rulemaking PRM–50–83 is closed on 

September 23, 2008. 

ADDRESSES: You can access publicly 

available documents related to this 

petition for rulemaking using the 

following methods: 

Federal e-Rulemaking Portal: Further 

NRC action on the issues raised by this 

petition will be accessible at the Federal 

e-rulemaking portal, http:// 

www.regulations.gov, by searching on 

rulemaking docket ID: NRC–2007–0012. 

The NRC also tracks all rulemaking 

actions in the ‘‘NRC Regulatory Agenda: 

Semiannual Report (NUREG–0936).’’ 

NRC’s Public Document Room (PDR): 

The public may examine, and have 

copied for a fee, publicly available 

documents at the NRC’s PDR, Public 

File Area O–1 F21, One White Flint 

North, 11555 Rockville Pike, Rockville, 

Maryland. 

NRC’s Agencywide Documents Access 

and Management System (ADAMS): 

Publicly available documents created or 

received at the NRC are available 

electronically at the NRC’s Electronic 

Reading Room at http://www.nrc.gov/ 

reading-rm/adams.html. From this page, 

the public can gain entry into ADAMS, 

which provides text and image files of 

NRC’s public documents. If you do not 

have access to ADAMS or if there are 

any problems in accessing the 

documents located in ADAMS, contact 

the NRC PDR reference staff at 1–800– 

387–4209 or 301–415–4737, or by e-mail 

to PDR.resource@nrc.gov. 

FOR FURTHER INFORMATION CONTACT: 

Harry S. Tovmassian, Office of Nuclear 

Reactor Regulation, NRC, Washington, 

DC 20555–0001, telephone 301–415– 

3092, e-mail 

Harry.Tovmassian@nrc.gov. 

SUPPLEMENTARY INFORMATION: 

The Petition 

On February 23, 2007, the NRC 

received a petition for rulemaking from 

Mr. David Lochbaum on behalf of POGO 

and UCS (PRM–50–83). The petitioner 

requested that the NRC amend its 

regulations in Title 10 of the Code of 

Federal Regulations, Part 50, ‘‘Domestic 

Licensing of Production and Utilization 

Facilities’’ (10 CFR Part 50), to add an 

appendix (or comparable regulation), 

similar to existing Appendix E to 10 

CFR Part 50, ‘‘Emergency Planning and 

Preparedness for Production and 

Utilization Facilities,’’ which would 

require periodic demonstrations by 

local, State, and Federal entities to 

ensure that nuclear power plants can be 

adequately protected against 

radiological sabotage by adversaries 

with capabilities that exceed those in 

the DBT. In the Federal Register of 

March 29, 2007 (72 FR 14713), the NRC 

published a notice of receipt of the 

petition for rulemaking and requested 

public comment. 

In support of the request for this 

proposed amendment to the NRC’s 

regulations, the petitioner cites the 

recent DBT final rule (72 FR 12705; 

March 19, 2007) which states that the 

DBT rule reflects the Commission’s 

determination of the most likely 

composite set of adversary features 

against which a private security force 

should reasonably be required to 

defend. The petitioner states that the 

final DBT rule requires plant owners to 

demonstrate periodically that they can 

meet their responsibilities to adequately 

protect nuclear power plants from 

sabotage threats up to and including the 


jlentini on PROD1PC65 with PROPOSALS
Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Proposed Rules 54745 

DBT but fails to include provisions 

requiring periodic demonstrations that 

applicable local, State, and Federal 

entities can meet their responsibilities 

to adequately protect nuclear power 

plants from sabotage threats by 

adversaries with capabilities exceeding 

those of the DBT. The petitioner urges 

the NRC to remedy this shortcoming by 

amending its regulations to require 

demonstrations similar to those required 

by Appendix E to 10 CFR Part 50, which 

the petitioner claims requires plant 

owners and external authorities to 

demonstrate periodically their ability to 

meet their responsibilities during 

nuclear plant emergencies. According to 

the petitioner, Appendix E to 10 CFR 

Part 50 requires biennial exercises at 

each nuclear plant site and evaluation 

by the Federal Emergency Management 

Agency (FEMA) of the performance of 

local, State, and Federal entities. 

Public Comments 

The notice of receipt of the petition 

for rulemaking invited interested 

persons to submit their comments. The 

NRC received 16 comment letters (1 

from the Nuclear Energy Institute (NEI) 

on behalf of the nuclear energy industry, 

13 from NRC-licensed power reactor 

operators or their affiliates, and 2 from 

private citizens). In its letter, NEI 

recommends that the NRC deny the 

petition. According to NEI, the U.S. 

Department of Homeland Security 

(DHS), through the Homeland Security 

Presidential Directive-7, ‘‘Critical 

Infrastructure Identification, 

Prioritization, and Protection,’’ is 

responsible for the oversight and 

coordination of local, State, and Federal 

entities for all terrorist threats including 

those above the DBT. In addition, the 

commenter states that the NRC has 

acknowledged in the Statement of 

Considerations for the recent DBT final 

rule that the NRC and DHS are working 

together to develop and improve 

emergency preparedness for a terrorist 

attack through Federal initiatives such 

as comprehensive review programs and 

integrated response planning efforts. For 

these reasons, NEI recommends that the 

NRC deny this petition. All 13 comment 

letters from the nuclear power reactor 

industry endorse the NEI comments. 

The Commission agrees that oversight 

and coordination of local, State, and 

Federal entities are under the purview 

of DHS and that the NRC and DHS 

continue to undertake joint 

comprehensive review programs and 

integrated response planning efforts. 

One individual commenter, opposing 

the petition, also questions the NRC’s 

authority to require participation in 

demonstrations by local, State, and 

Federal entities. This commenter’s 

argument is essentially the same as that 

of NEI. This commenter also states that 

the proposed requirement is too vague 

in that it does not define how far 

beyond the DBT adequate protection 

should be demonstrated. With respect to 

the specificity of the petition, the NRC 

concurs that it would be difficult to 

construct criteria defining levels beyond 

the DBT for which demonstrations 

would be required. However, the 

question is moot because the NRC lacks 

the authority to require the 

demonstrations in the first place. 

Another individual commenter presents 

a discussion that generally does not 

address the elements of the petition. 

This commenter states that 

demonstrations of the capability of 

Federal authorities to ‘‘take-back-theplant’’ might be needed but adds that 

the adversary has easier and more 

effective means of achieving 

radiological sabotage than physical 

takeover of a plant. The Commission 

believes that this argument has no 

bearing on the merits of the petition. 

Reason for Denial 

In December 1979, the President 

directed FEMA to assume lead federal 

responsibility for all offsite nuclear 

emergency planning and response. 

Homeland Security Presidential 

Directive-7, ‘‘Critical Infrastructure 

Identification, Prioritization and 

Protection,’’ assigns the lead role for 

coordinating offsite security responses 

to DHS. The NRC’s cooperation in these 

planning and response activities is a 

factor in the NRC’s determination that 

there is reasonable assurance that 

adequate protective measures can and 

will be taken in the event of a 

radiological emergency, whether or not 

the event is the result of sabotage. 

In addition, the petitioner has 

misinterpreted Appendix E to 10 CFR 

Part 50. The petitioner states that 

‘‘Appendix E to 10 CFR part 50 

currently requires periodic 

demonstrations that plant owners and 

external authorities can successfully 

meet their responsibilities during 

nuclear plant emergencies. * * *’’ 

While licensees must make a good faith 

effort to secure the participation in 

emergency preparedness 

demonstrations of offsite authorities 

having a role in the emergency 

preparedness plan, Section IV.F.2.h of 

Appendix E and 10 CFR 50.47(c) 

recognize that such entities are at liberty 

to refuse to participate. This recognition 

is based on the fact that the NRC does 

not have the authority to require offsite 

authorities to participate in a nuclear 

power reactor licensee’s exercises. Thus, 

the petitioner’s reliance on Appendix E 

to 10 CFR Part 50 to support the request 

that the NRC require local, State, and 

Federal governments to participate in 

demonstrations of their capability to 

respond to beyond-DBT events is 

misplaced because the NRC cannot 

compel local, State, or Federal entities 

to take part in biennial emergency 

exercises if those entities do not choose 

to participate in emergency planning 

activities. 

For these reasons, the Commission 

finds that promulgating the petitioner’s 

proposed requirements would exceed 

the NRC’s authority and is denying 

PRM–50–83. 

Commissioner Gregory B. Jaczko’s 

Dissenting View on the Commission’s 

Decision To Deny the Petition for 

Rulemaking Concerning Integrated 

Response 

I respectfully disagree with the 

decision to deny the petition for 

rulemaking as included in this Federal 

Register notice. The petitioners are 

asking for a more formal approach to 

ensuring licensees, local, State, and 

federal officials are closely coordinated 

to respond to a range of potential 

security events. The requested approach 

is modeled on the emergency 

preparedness exercises which currently 

take place, and I believe this proposal 

warrants further consideration. 

While it is certainly true that the NRC 

does not have the authority to require 

offsite federal agencies to participate in 

nuclear power reactor exercises, it is 

also true that our emergency 

preparedness regulations clearly read as 

if we do—for example: ‘‘Offsite plans for 

each site shall be exercised biennially 

with full participation by each offsite 

authority having a role under the 

radiological response plan’’ (10 CFR 

Part 50 Appendix E Section IV.F.2.c., 

emphasis added), and ‘‘A full 

participation exercise which tests as 

much of the licensee, State, and local 

emergency plans as is reasonably 

achievable without mandatory public 

participation shall be conducted * * *’’ 

(10 CFR Part 50 Appendix E Section 

IV.F.2.a., emphasis added). As footnote 

4 of that section makes clear, these 

exercises are for the purpose of ‘‘testing 

major observable portions of the onsite 

and offsite emergency plans and 

mobilization of State, local and licensee 

personnel and other resources in 

sufficient numbers to verify the 

capability to respond to the accident 

scenario.’’ (Id., emphasis added) 

10 CFR 50.47(c) does include 

provisions for determining that 

reasonable assurance exists even if 

States and local officials refuse to 


jlentini on PROD1PC65 with PROPOSALS
54746 Federal Register / Vol. 73, No. 185 / Tuesday, September 23, 2008 / Proposed Rules 

participate in exercises. Thus it is 

implicit that we can not require their 

participation, but at the least we can 

certainly fully encourage it. Clearly, the 

regulations could be modified to require 

licensees to participate in Federal and 

State integrated response exercises that 

Federal, State and local agencies decide 

to pursue. They could also be drafted in 

such a way as to encourage interagency 

participation in these types of exercises, 

if a policy decision was reached 

concluding that was a good approach. 

The NRC is currently participating in 

integrated response initiatives with the 

Homeland Security Department and the 

Federal Bureau of Investigation to 

strengthen the ability of emergency 

response organizations and law 

enforcement around nuclear power 

plants to respond to events including 

potential beyond-DBT threats. The 

challenge to further pursuing integrated 

response exercises is not in securing the 

participation of government agencies 

which are eager to make additional 

progress, but rather with the willingness 

of the NRC’s licensees to volunteer 

support for those efforts. That is a 

challenge that can be addressed by 

exercising the agency’s authorities to 

compel such participation on the part of 

licensees. The NRC should pursue such 

a requirement if a substantive analysis 

by agency staff and the results of a 

public rulemaking determine it would 

provide additional protection to the 

common defense and security. 

Rather than searching for a legalistic 

reason to dismiss the petition, the 

agency would be much better served by 

analyzing the substance of the proposal 

and basing its decision on the petition 

for rulemaking on the merits. It is 

especially awkward to hang our hats on 

a lack of authority to pursue the petition 

when the legal basis for our authority 

over integrated response so closely 

parallels our authority in the emergency 

preparedness arena. Such an approach 

risks creating challenges to the 

important radiological emergency 

preparedness program we now have in 

place. 

The Majority View of the Commission 

Regarding the Denial of a Petition for 

Rulemaking Submitted by David 

Lochbaum on Behalf of Project on 

Government Oversight and the Union of 

Concerned Scientists (PRM–50–83) 

The Commission majority does not 

share Commissioner Jaczko’s dissenting 

view on the denial of PRM–50–83. The 

petitioner requested that the NRC add 

an appendix (or comparable regulation) 

similar to Appendix E of 10 CFR Part 50 

which, the petitioner asserts, requires 

offsite entities having a role under the 

radiological response plan, to 

participate in biennial exercises 

designed to verify the capability of these 

entities to respond to the accident 

scenario. The petitioner has 

misconstrued Appendix E which, in 

fact, recognizes the NRC’s lack of 

authority to require offsite entities to 

participate in biennial exercises. While 

Appendix E states in part that it requires 

nuclear power plant licensees to involve 

offsite authorities having a role in the 

emergency preparedness plan in 

biennial emergency preparedness 

demonstrations, it further states that 

‘‘[t]he participation of State and local 

governments in an emergency exercise 

is not required to the extent that the 

applicant has identified those 

governments as refusing to participate 

further in emergency planning 

activities. * * *’’ (10 CFR Part 50, 

Appendix E Section IV.F.2.h.). 

The Commission majority points out 

that the NRC does not have the statutory 

authority to require the participation of 

offsite authorities and that the NRC 

cannot confer such authority upon itself 

through rulemaking. We have reviewed 

the substance of the petition and are 

satisfied that adequate protection is, 

indeed, provided by the current 

integrated response framework. 

Therefore, we find no basis for granting 

PRM–50–83 or for initiating a 

rulemaking that would purport to 

require offsite authorities to participate 

in nuclear power plant licensees’ 

exercises or to ‘‘encourage’’ such 

participation. 

The lead role for coordinating offsite 

security responses was assigned to the 

Department of Homeland Security 

(DHS) (Homeland Security Presidential 

Directive-7, ‘‘Critical Infrastructure 

Identification, Prioritization, and 

Protection’’). To that end, the NRC has 

worked with DHS and other agencies to 

improve the capabilities of first 

responders as part of the National 

Infrastructure Protection Plan. Part of 

this effort included the conduct of 

Comprehensive Reviews (CRs) at all 

commercial nuclear power plants which 

has resulted in the identification of 

numerous readily-adaptable protective 

measures for increased first responder 

readiness and preparedness in the event 

of a terrorist attack or natural disaster. 

The NRC also assisted DHS in the Buffer 

Zone Protection Program designed to 

support state, local and tribal law 

enforcement and other first responders 

to enhance the security of a range of 

‘‘Critical Infrastructures and Key 

Resources,’’ which include nuclear 

power plants. In addition, the NRC has 

helped to advance offsite response 

capabilities by meeting with a range of 

federal stakeholders to ascertain their 

support and concurrence on a path 

forward for integrated response 

planning. The NRC continues to 

maintain regulatory attention on the 

effectiveness of emergency preparedness 

as extended to security-related 

scenarios. The NRC has been working 

with the Federal Emergency 

Management Agency as part of the 

ongoing Emergency Preparedness (EP) 

rulemaking to incorporate hostile 

action-initiated scenarios into periodic 

biennial exercises under Appendix E. 

These exercises are intended to test the 

ability of licensee personnel to 

coordinate with state and local 

responders under the National Incident 

Management System/Incident 

Command Structure to take appropriate 

actions to mitigate the impact of a 

terrorist attack on a commercial nuclear 

power plant. The NRC staff is also 

working with the power reactor 

industry, as part of a voluntary initiative 

response to NRC Bulletin 2005–02, 

where each reactor site is conducting a 

hostile action-based drill within a 3-year 

period. The NRC staff will be 

incorporating the lessons learned from 

these drills into its proposed EP 

rulemaking. 

As stated in our votes on this matter, 

we do not question the important role 

that offsite federal, state and local 

authorities play in a nuclear power 

plant’s ability to successfully respond to 

attempted radiological sabotage greater 

than the design basis threat. The 

Commission majority believes that the 

current framework provides reasonable 

assurance that adequate protective 

measures can and will be taken in the 

event of radiological sabotage. 

Dated at Rockville, Maryland, this 17th day 

of September 2008. 

For the Nuclear Regulatory Commission. 

Annette L. Vietti-Cook, 

Secretary of the Commission. 

[FR Doc. E8–22174 Filed 9–22–08; 8:45 am] 

BILLING CODE 7590–01–P 


jlentini on PROD1PC65 with PROPOSALS