The Agency administers the TSP, which was established by the Federal Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 100 Stat. 514. The TSP provisions of FERSA are codified, as amended, largely at 5 U.S.C. 8351 and 8401-79. The TSP is a tax-deferred retirement savings plan for Federal civilian employees and members of the uniformed services. The TSP is similar to cash or deferred arrangements established for private-sector employees under section 401(k) of the Internal Revenue Code (26 U.S.C. 401(k)).

On June 18, 2010, the Agency published a proposed rule with request for comments in the Federal Register (75 FR 34654, June 18, 2010). The Agency received comments from one Federal employees' union, two participants, and three other parties.

The Federal employees' union endorsed the proposed changes. The union expressed concern that the complexity of the Form TSP-3, Beneficiary Designation, and the multiplicity of its requirements will cause a large number of forms to be rejected as invalid. The union, however, noted with approval that the Agency stated in its proposed regulation that Agency staff will act quickly to review beneficiary designation forms and to alert participants of the need to correct any omissions or errors. The Agency intends to keep this commitment by assigning sufficient staff to this task.

The Federal employees' union also specifically noted its approval of the Agency's proposal to permit a participant to designate a custodian under the Uniform Transfers to Minors Act (UTMA) as the beneficiary of his or her TSP account. With respect to the requirement that the UTMA custodianship be established under the laws of the District of Columbia, the union asked the TSP to provide guidance to assure compliance with District of Columbia laws. Finally, the union suggested that the Form TSP-3 instructions be revised to explain the designation of a custodian under the UTMA and include an example to illustrate this fact pattern.

The Agency considered including an explanation of the designation of a custodian under the UTMA in the instructions to the Form TSP-3. But due to the complex financial and tax consequences of designating a custodian under the UTMA, the Agency wishes to discourage participants from making this decision without first obtaining expert advice. Moreover, the process of designating a custodian under UTMA requires a lengthy explanation, which the Agency believes would make the Form TSP-3 overly complex. Therefore, in response to this comment, the Agency created a special form for designating an UTMA custodian. This form will be made available on the TSP website and will include instructions to ensure that the designation is valid under the District of Columbia Uniform Transfers to Minors Act.

One participant commented simply to express his support for the proposed changes. Another participant commented to express frustration with unspecified aspects of the current rules for designating beneficiaries, as well as his hope that the revised rules will be less frustrating.

One commenter objected to the requirement to link the contingent beneficiary to a primary beneficiary because he believes the requirement is not clear. In response to this comment, the Agency is clarifying the language proposed for 5 CFR 1651.3(c)(7). The language in the proposed rule required a participant to “Match each contingent beneficiary to a primary beneficiary.” This final rule replaces that language with the following: “For each contingent beneficiary, identify the primary beneficiary whose share the contingent beneficiary is to receive in the event the primary beneficiary dies before payment is made.”

One commenter suggested that the proposed rule be changed to allow participants to designate one or more charities as a primary or contingent beneficiary. The Agency's regulations currently allow participants to designate one or more charities as a primary or contingent beneficiary. 5 CFR 1651.3(b). This proposed rule does not affect the participant's ability to designate a charity as a beneficiary.

Two of the commenters also objected to including the beneficiary's date of birth or social security number on the Form TSP-3. The proposed rule does not specifically require the participant to include the beneficiary's date of birth or social security number on the Form TSP-3. It does, however, require the participant to designate each primary and each contingent beneficiary in a manner so that the Agency can identify the individual or entity. The preamble to the proposed rule gave the date of birth or social security number as examples of information that would allow the TSP to identify the participant's beneficiary. The TSP needs sufficient information to identify the participant's beneficiary to ensure accurate processing and payment and to reduce the processing time and resources necessary to identify beneficiaries.

One commenter requested clarification on whether the TSP will accept the designation of a testamentary trust. This commenter also requested that the TSP permit a per stirpital designation. These comments are outside the scope of the proposed rule under consideration.

The Agency appreciates the opportunity to review and respond to comments from participants who take an active interest in the TSP and offer suggestions. The comment process allowed the Agency to address any potential misunderstandings about the proposed changes, to consider unanticipated legal or policy impediments to the proposed changes, and to hear suggestions about how better to implement the proposed changes. Although the comments caused the Executive Director to make only one change to the text of the proposed rule, he did carefully consider each comment and addressed some of the concerns through other Agency guidance. Therefore, the Agency is publishing the proposed rule as final with a modification to the language proposed for 5 CFR 1651.3(c)(7).

I certify that these regulations will not have a significant economic impact on a substantial number of small entities. They will affect only employees of the Federal Government.

I certify that these regulations do not require additional reporting under the criteria of the Paperwork Reduction Act.

Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 632, 653, 1501 1571, the effects of this regulation on state, local, and tribal governments and the private sector have been assessed. This regulation will not compel the expenditure in any one year of $100 million or more by state, local, and tribal governments, in the aggregate, or by the private sector. Therefore, a statement under § 1532 is not required.

Pursuant to 5 U.S.C. 810(a)(1)(A), the Agency submitted a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States before publication of this rule in the Federal Register. This rule is not a major rule as defined at 5 U.S.C. 814(2).

Background

This rule amends CRP regulations in 7 CFR part 1410 to implement certain changes to CRP as required by the 2008 Farm Bill (Pub. L. 110-246). This is the third of three interim rules that CCC has published to implement 2008 Farm Bill changes to CRP. On June 29, 2009, (74 FR 30907-30912) CCC published an interim rule to implement CRP provisions in the 2008 Farm Bill regarding farmable wetlands, thinning of trees to improve the condition of resources, income and payment limitations, and address issues raised by State, regional, and National conservation initiatives.

On May 14, 2010, (75 FR 27165-69) CCC published an interim rule to implement provisions in the 2008 Farm Bill regarding transition incentives for CRP participants with expiring contracts to sell or lease the land to a beginning or socially disadvantaged farmer or rancher.

This interim rule implements the remaining 2008 Farm Bill CRP provisions, which include updating cropping history requirements, adding an additional waiver provision as an exclusion to exceed the 25 percent of the county cropland CRP acreage maximum, adding an acceptability-of-offer provision to allow local resident preference, and clarifying permissive uses of CRP land. It also adds provisions for pollinator habitat incentives and incentives for limited resource farmers and ranchers and Indian tribes. This rule also updates dates and makes minor plain language improvements. This interim rule is effective on publication, but is subject to modification after the consideration of comments. After the comment period closes, CCC expects to publish a final rule that will discuss the comments and implement any amendments determined to be justified based on a review of the comments.

CRP participants enroll land under contracts for 10 to 15 years in exchange for annual rental payments and financial assistance to install certain conservation practices and to maintain approved vegetative, tree, or other appropriate covers. A wide range of conservation practices may be enrolled under CRP including, for example, introduced and native grasses and legumes, hardwood trees, wildlife habitat, grass waterways, filter strips, riparian buffers, wetlands, rare and declining habitat, upland bird habitat, longleaf pine, and duck nesting habitat. The basic structure and nature of CRP remains the same.

This rule amends § 1410.2, “Definitions,” to add a definition for “pollinator.” The 2008 Farm Bill allows the Secretary to add the development of pollinator habitat and practices to encourage native and managed pollinators to any of the USDA conservation programs. The 2008 Farm Bill does not define “native or managed pollinator.” This rule adds a definition of “pollinator” to mean “an insect or other animal that carries pollen from one flower to another.” Other animals would include birds and bats.

Consistent with section 2105 of the 2008 Farm Bill, this rule also adds alfalfa, other multi-year grasses, and legumes grown in rotation to the definition of “agricultural commodity.” This will permit, for example, land with alfalfa grown under a long-term rotation with another agricultural commodity to meet the cropping history requirement for eligible land.

This rule adds definitions for “limited resource farmer or rancher” and “Indian tribe” that are consistent with the definitions used for other USDA programs and with the 2008 Farm Bill. The 2008 Farm Bill gives the term “Indian tribe” the definition given under section 4(e) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b(e)). In implementing the Indian Self-Determination and Education Assistance Act, the Department of the Interior, Bureau of Indian Affairs, and the Department of Health and Human Services, Indian Health Service, established the definition of “Indian tribe” in 25 CFR 900.6. This rule adds that definition to 7 CFR 1410.2. The definition of “limited resource farmer or rancher” in this rule is consistent with the definition that applies under the regulations for the Environmental Quality Incentives Program (EQIP) at 7 CFR 1466.3. These definitions are needed because this rule adds authority to provide additional incentives for enrollment of Indian tribes and limited resource farmers and ranchers.

This rule amends the definitions for “conserving use” and “considered planted” to update the period of time—to the period 2002 through 2007—that is considered for land use history. This change is consistent with other updates to the cropping history requirement for eligible land, as described below, required by the 2008 Farm Bill.

This rule amends § 1410.4, “Maximum County Acreage,” to add an additional waiver provision as an exclusion of certain acreage enrolled under CRP. Under the current regulations, the amount of cropland that may be enrolled under CRP and the Wetlands Reserve Program, as specified in § 1410.4, may not exceed 25 percent of a county's total cropland unless CCC waives this cap. To implement a waiver, CCC must determine that enrolling additional land would not adversely affect the local economy of the county and that operators in the county are having difficulties complying with conservation plans implemented under 7 CFR part 12. The existing waiver provisions are not changed with this rule. This rule adds an additional waiver provision specifying that CCC may exclude high-priority continuous signup acreage, including acreage in the Conservation Reserve Enhancement Program (CREP), Farmable Wetlands Program (FWP), or State Acreage for Wildlife Enhancement (SAFE) Program, from the 25 percent cropland limitation, if the county government agrees. The 2008 Farm Bill specifies that the Secretary may implement the waiver to exclude for high-priority acreage; it does not require CCC to do so.

Under CRP, eligible land may be enrolled competitively during publicly announced general signups. An environmental benefits index (EBI) to optimize costs and benefits is used for competitive enrollment. When an offer is made, FSA collects data for a number of factors for each piece of ground offered into CRP. Each offer is assigned a point score based on its relative environmental factors and competes with all other offers. Offer acceptability is determined based on the ranking results. Generally, FSA has used these EBI factors to assess the environmental benefits for the land offered:

• Wildlife habitat benefits;

• Water quality benefits from reduced erosion, runoff, and leaching;

• On-farm benefits from reduced erosion;

• Benefits that will likely endure beyond the contract period;

• Air quality benefits from reduced wind erosion; and

• Cost.

Land may also be enrolled non-competitively on a continuous basis if the land meets certain criteria. That is not changing with this rule. Non-competitive continuous enrollment is available for certain high-priority practices including, but not limited to, filter strips, wetlands, buffers, grass waterways, land enrolled under CREP, FWP, and for certain initiatives such as wetland restoration, longleaf pine restoration, quail habitat, and SAFE. This rule amends the regulations to allow the special high-priority land including acreage in CREP, FWP, or SAFE Program to be excluded from the 25 percent maximum county acreage limit if the county government agrees.

As provided for in the existing CRP regulations in § 1401.6, “Eligible Land,” eligible land for CRP must be cropland with a history of production of tillable crops or marginal pastureland. The purpose of this eligibility requirement, which is not changing with this rule, is to ensure CRP is used to convert environmentally-sensitive land to a long-term environmentally-beneficial cover crop.

As provided in the 2008 Farm Bill, this rule amends § 1410.6, “Eligible Land,” to change the dates of the cropping history required for certain cropland to be eligible. In the current regulation, eligible cropland must have been planted or considered planted for four of the six years during the period of 1996 through 2001. This rule amends that section to modify the cropping history dates to the four of the six years during 2002 through 2007. This rule also updates this section to refer to CCC rather than the Deputy Administrator to reflect more consistently that the program is a CCC program. References to the dates for expiring Water Bank Program contracts are removed from the eligibility requirements for marginal pastureland because all such contracts have already expired.

This rule amends § 1410.31, “Acceptability of Offers,” to add the 2008 Farm Bill specified “local preference” as a factor in offer acceptability. This means that CCC may preferentially accept offers from residents of the county or a contiguous county where the land is offered for enrollment, provided that offer has at least equal expected benefits to offers from non-resident landowners. Section 2110 of the 2008 Farm Bill requires the Secretary to give preference to such offers.

The CRP regulations limit the uses of CRP land to a list of uses specified in § 1410.63 “Permissive Uses.” The intent is to ensure that CRP land is not used for activities that would tend to defeat the conservation purposes of the program. Permissive uses must be consistent with the conservation of soil, water quality and wildlife habitat, including habitat during nesting season for birds in the area. To achieve this goal, section 2108 of the 2008 Farm Bill clarifies the specific restrictions on managed harvesting, grazing, other commercial uses of forage on CRP land, and installation of wind turbines. Therefore, § 1410.63 is amended to implement the specific permissive uses, and permissive use restrictions, as specified in the 2008 Farm Bill. The amendments to permissive uses are as follows:

• Provisions for managed harvesting and grazing uses are revised and clarified, as specified in the 2008 Farm Bill. Specific types of harvesting and grazing are allowed, in exchange for a payment reduction as determined by CCC. The provision for “haying” is removed, but haying is understood to be a type of harvesting. Managed harvesting provisions are expanded to include uses in addition to biomass harvest, in exchange for a payment reduction as determined by CCC. The specific requirement for harvesting biomass not more than once every three years is removed, but CCC will continue to require that biomass harvesting and any other harvesting not defeat the conservation purposes of the contract. Appropriate vegetation management requirements for the land will apply including the timing, frequency, and duration that is consistent with the purposes of CRP. Managed harvesting will be conducted according to an approved CRP conservation plan.

• Routine grazing, in exchange for a payment reduction, is added as a permissive use, as specified in the 2008 Farm Bill. Appropriate vegetation management requirements and stocking rates for the land will apply, as appropriate, consistent with the Natural Resources Conservation Service (NRCS) Field Office Technical Guide (FOTG) grazing standards that are suitable for continued routine grazing. The allowed frequency and timing of routine grazing will take into account regional differences that are consistent with the purposes of CRP according to an approved CRP conservation plan. The provision for managed grazing that is incidental to the gleaning of crop residue is removed, but this practice is understood to be a type of routine grazing.

• Prescribed grazing to control invasive species, in exchange for a payment reduction, is added as a permissive use, as specified in the 2008 Farm Bill. Appropriate vegetation management requirements and stocking rates for the land will apply. The allowed frequency of prescribed grazing will take into account regional differences that are consistent with the purposes of CRP according to an approved CRP conservation plan. Invasive species such as kudzu and leafy spurge will be targeted.

• Harvesting, grazing, or other commercial use of forage allowed in response to a drought or other emergency, is added as a permissive use in exchange for a payment reduction. Emergency haying and grazing has been allowed in the past, in response to droughts and other emergencies, but was not specified as a permitted use in the CFR.

• Wind turbine installation provisions are revised; the 2008 Farm Bill requires a payment reduction for this use.

The following permissive use provisions in § 1410.63 remain unchanged:

• The general provision that the permissive uses in this section may be allowed, but are not automatically allowed, is unchanged.

• Commercial shooting preserve use provisions are unchanged.

• Spot grazing use provisions are unchanged.

• Forestry maintenance use provisions are unchanged.

• Sale of carbon, water quality, or other environmental credits provisions are unchanged.

As noted above, in § 1410.63, there is the general provision that the permissive uses may be allowed, but are not automatically allowed. All of the permissive uses in § 1410.63 require approval by CCC, which also means that they may not be approved for use in a particular region or for a specific CRP contract. CCC will exercise the discretionary authority provided in section 2108 of the 2008 Farm Bill to determine which activities will be approved for specific CRP contracts.

As noted above, the 2008 Farm Bill requires a payment reduction for the permissive use for wind turbine installation. All of the permissive uses except commercial shooting preserves and sale of carbon, water quality, or other environmental credits will, as in the past, require a payment reduction as determined by CCC. The reduction for the installation of wind turbines is new. The 2008 Farm Bill requires the payment reduction, but gives CCC discretionary authority as to the amount of the reduction.

Section 2708 of the 2008 Farm Bill allows, but does not require, the Secretary to add provisions to encourage the development of habitat for, and use of conservation practices to benefit, native and managed pollinators. Accordingly, this rule adds a new paragraph to § 1410.62 “Miscellaneous,” to add a provision that will allow approval of practices to encourage the development of habitat for, and use of conservation practices to benefit, native and managed pollinators. FSA, working with NRCS and State technical committees, will develop and define conservation practice standards that provide habitats for pollinators. The requirements in those practices for acreage and other characteristics of habitat will take into account appropriate habitat needs relevant to specific geographical areas and species.

Section 2708 of the 2008 Farm Bill also allows the Secretary to provide special incentives for certain categories of participants, including Indian tribes and limited resource farmers and ranchers. This rule therefore amends § 1410.62, “Miscellaneous,” to add incentives for Indian tribes and for limited resource farmers and ranchers. Implementation of the incentives will be coordinated with other USDA programs that provide assistance, including CRP technical assistance, to these farmers and ranchers. Implementation will be subject to funding availability and acreage limits that apply to CRP as a whole.

CCC is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking with respect to the subject matter of this rule. CCC is authorized by section 2904 of the 2008 Farm Bill to issue an interim rule effective on publication with an opportunity for comment.

This rule has been determined to be economically significant and was reviewed by the Office of Management and Budget (OMB) under Executive Order 12866. A Cost Benefit Analysis is summarized below and is available from the contact information listed above.

The changes to CRP in this rule are expected to cost about $6.7 million per year over ten years (2011-2020). This is a net cost that reflects roughly $77 million in additional CRP payments to participants over the next ten years for additional land enrolled through the county maximum acreage waivers to exclude certain acreage and revised cropping history requirements and payments for pollinator habitat practices, minus roughly $10 million in reduced payments for the revised permissive uses. The benefits to participants will be the net additional $6.7 million per year over the next ten years. There are expected to be additional non-quantifiable environmental benefits from the waivers to exclude that will allow more environmentally sensitive acres to be enrolled through continuous signup, from additional highly erodible land enrollment that could result from making land in long-term hay rotations eligible, and from the incentives for pollinator habitat.

The other provisions in this rule, such as local preference, are expected to have little to no cost. These provisions will largely substitute one CRP participant for another, or one practice for another, leading in a shift in costs and benefits to different participants and practices, but little net cost or benefit for CRP as a whole.

It has been determined that the Regulatory Flexibility Act is not applicable to this interim rule because CCC is not required by 5 U.S.C. 553 or any other provision of law to publish a notice of proposed rulemaking for this rule. CCC is authorized by section 2904 of the 2008 Farm Bill to issue an interim rule effective on publication with an opportunity for comment.

In 2003, FSA, on behalf of CCC, finalized a Programmatic Environmental Impact Statement (PEIS) for the reauthorization of the CRP in Title II of the Farm Security and Rural Investment Act of 2002 (2002 Farm Bill) and published a Record of Decision (ROD). Consistent with provisions in 40 CFR 1508.28, in order to focus primarily on the issues relevant to this specific rule and not duplicate material found in the 2003 EIS, FSA tiered a Programmatic Environmental Assessment (PEA) on select provisions of the 2008 Farm Bill for CRP to the 2003 PEIS; tiering is appropriate when the sequence of analysis is lesser in scope than the initial programmatic statement.

The PEA incorporated by reference general discussions and analysis from the 2003 PEIS to assess potential environmental impacts associated with implementation of only those non-discretionary provisions identified in this rule for CRP consistent with the 2008 Farm Bill. The Final PEA and Finding of No Significant Impact (FONSI) on select provisions of the 2008 Farm Bill for CRP was published in the Federal Register on December 16, 2008 (73 FR 76331-76332) for public review and comment. The proposed changes analyzed in the PEA were separate and distinct from the proposals for discretionary changes examined in the 2010 Final Supplemental Environmental Impact Statement (Final SEIS). For those 2008 Farm Bill changes not examined in the PEA where discretion was exercised, FSA published a Final SEIS to the 2003 Programmatic Environmental Impact Statement (PEIS) on CRP on February 19, 2010, (75 FR 7438-7440) for public comment and review.

On behalf of the Commodity Credit Corporation, FSA prepared a Final Supplemental Environmental Impact Statement (SEIS) for CRP and the Notice of Availability (NOA) was published in the Federal Register (FR) on June 18, 2010 (75 FR 34737-34738). Based on a thorough evaluation of the resource areas affected by CRP, a detailed analysis of the Alternatives, and a comprehensive review of public comments, FSA has issued a Record of Decision (ROD). This decision was made after comparing overall environmental impacts and other relevant information with regard to the reasonable alternatives considered in the Final SEIS. The ROD can be found on FSA's Web site: http://www.fsa.usda.gov/FSA/webapp?area=home&subject=ecrc&topic=nep-cd.

This program is not subject to Executive Order 12372, which requires consultation with State and local officials. See the notice related to 7 CFR part 3015, subpart V, published in the Federal Register on June 24, 1983 (48 FR 29115).

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. This final rule is not retroactive and does not preempt State or local laws, regulations, or policies unless they represent an irreconcilable conflict with this rule. Before any judicial action may be brought regarding provisions of this rule, the administrative appeal provisions of 7 CFR parts 11, 624, and 780 must be exhausted.

The policies contained in this rule do not have any substantial direct effect on States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Nor does this rule impose substantial direct compliance costs on State and local governments. Therefore, consultation with the States is not required.

The policies contained in this rule do not have tribal implications that preempt tribal law.

USDA will undertake, within 6 months after this rule becomes effective, a series of regulation Tribal consultation sessions to gain input by Tribal officials concerning the impact of this rule on Tribal governments, communities, and individuals. These sessions will establish a baseline of consultation for future actions, should any become necessary, regarding this rule. Reports from these sessions for consultation will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning this rule and will provide additional venues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal leaders and their representatives concerning ways to improve this rule in Indian country.

This rule contains no Federal mandates under the regulatory provisions of Title II of the Unfunded Mandate Reform Act of 1995 (UMRA, Pub. L. 104-4) for State, local, or tribal governments, or the private sector. In addition, CCC is not required to publish a notice of proposed rulemaking for this rule. Therefore, this rule is not subject to the requirements of sections 202 and 205 of UMRA.

This rule has been determined to be Major under the Small Business Regulatory Enforcement Fairness Act of 1996, (Pub. L. 104-121) (SBREFA). SBREFA normally requires that an agency delay the effective date of a major rule for 60 days from the date of publication to allow for Congressional review. Section 808 of SBREFA allows an agency to make a major regulation effective immediately if the agency finds there is good cause to do so. Section 2904(c) provides that the authority in Section 808 of SBREFA will be used in implementing the 2008 Farm bill changes to the CRP. Consistent with section 2904(c) of the 2008 Farm Bill, FSA finds that it would be contrary to the public interest to delay implementation of this rule because it would significantly delay implementation of the program changes required by the 2008 Farm Bill by impeding the conduct of future general signups without having these additional changes to the program regulations in place. Therefore, this rule is effective on the date of its publication in the Federal Register.

The title and number of the Federal Domestic Assistance Program in the Catalog of Federal Domestic Assistance to which this rule applies is the Conservation Reserve Program—10.069.

The regulations in this rule are exempt from the requirements of the Paperwork Reduction Act (44 U.S.C. Chapter 35), as specified in section 2904 of the 2008 Farm Bill, which provides that these regulations be promulgated and the programs administered without regard to the Paperwork Reduction Act.

CCC is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

On June 23, 2009, the NRC published a proposed rule that requested comments on the proposed changes to 10 CFR part 110, Export and Import of Nuclear Equipment and Material (74 FR 29614). This final rule updates, clarifies, and corrects several provisions in 10 CFR part 110 to improve NRC's regulatory framework for the export and import of nuclear equipment, material, and radioactive waste. It also clarifies and corrects the regulations addressing the general license for the export of byproduct material. In addition, changes are made to the regulations governing the export and import of International Atomic Energy Agency (IAEA) Code of Conduct on the Safety and Security of Radioactive Sources Category 1 and Category 2 quantities of radioactive materials listed in appendix P to 10 CFR part 110 and the definition of “radioactive waste” in 10 CFR part 110. A discussion of the most significant changes follows.

The NRC reevaluated the need for a specific license for the import of Category 1 and 2 quantities of radioactive material to a U.S.-licensed user in light of enhancements made to the NRC's domestic regulatory framework. As a result, the NRC is amending 10 CFR part 110 to allow imports of Category 1 and 2 quantities of materials listed in Appendix P under a general license.

After the attacks of September 11, 2001, the Commission determined that certain licensed material should be subject to enhanced security requirements and safeguarded during transport, and that individuals with unescorted access to risk-significant quantities of radioactive material should be subject to background investigations. The results of vulnerability assessments performed by the NRC were used in the development of security enhancement orders that were issued to licensees using a graded approach based on the relative risk and quantity of material possessed by the licensee. (70 FR 72128; December 1, 2005) These security orders specifically address the security of byproduct material possessed in quantities greater than, or equal to, Category 1 and 2 quantities. The orders provide for enhanced security measures for such things as license verification before transfer, intrusion detection and response, access control, and coordination with local law enforcement authorities. The orders also contain requirements for the licensee to determine the trustworthiness and reliability of individuals permitted unescorted access to risk-significant radioactive materials. The determination involves a background investigation of the individual.

With the passage of the Energy Policy Act of 2005 giving the NRC new fingerprinting authority, the Commission determined that individuals with access to Category 1 and 2 quantities of radioactive material warrant fingerprinting and FBI criminal history records checks.

By the end of 2007, the NRC had issued orders to all NRC licensees that possessed Category 1 or 2 quantities of radioactive material (72 FR 70901; December 13, 2007) to require fingerprinting and FBI criminal history records checks for unescorted access to Category 1 or 2 quantities of radioactive material.

For all these requirements, NRC Agreement States have also imposed legally-binding measures on their licensees possessing Category 1 and 2 quantities of radioactive material.

During the same time period, the NRC issued two sets of orders to licensees transporting radioactive material in quantities greater than, or equal to, Category 2. The additional security measures contained in the orders provide for enhanced security measures during transportation that are beyond the current regulations, including enhanced security in preplanning and coordinating shipments, advance notification of shipments to the NRC and States through which the shipment will pass, control and monitoring of shipments that are underway, trustworthiness and reliability of personnel, information security considerations, and control of mobile or portable devices.

The security requirements put in place by the orders supplement the existing domestic regulatory requirements. A rulemaking is currently underway that, if promulgated, would incorporate security requirements for Category 1 and 2 quantities of radioactive material into the domestic regulations. (SECY-09-0181; December 14, 2009 (ML0928201950)).

Another significant enhancement pertinent to these materials is the establishment of the National Source Tracking System (NSTS) that tracks from “cradle to grave” transactions involving Category 1 and 2 radioactive sources (71 FR 65686; November 8, 2006). Licensees are responsible for recording the manufacture, shipment, arrival, and disposal of all licensed and tracked Category 1 and 2 sources. For every nationally tracked source that is imported, the facility obtaining the source is required to report the information to the NSTS by the close of the next business day after receipt of the imported source. With the NSTS in place, there is much more information about imported sources available to the staff.

In light of the many security enhancements, the Commission had decided to eliminate the specific license requirement in § 110.27(f) for imports of radioactive material listed in Table 1 of Appendix P to 10 CFR part 110. Conforming changes have been made to §§ 110.32, 110.43, and 110.50. Imports of radioactive material into the United States under a general license continue to be contingent on the consignee being authorized to receive and possess the material under a general or specific NRC or Agreement State license. See § 110.27(a). Moreover, importers of Category 1 and 2 materials under a general license are still subject to the notification requirements prior to shipment as required by § 110.50. The advance notification of imports of Category 1 and 2 quantities of material, § 110.50 (c) is revised to require the exporting facility name, location, address, contact name and telephone number as part of the pre-shipment notification.

Additionally, § 110.50 (c) is revised to require advance notifications of imports to be submitted seven days in advance of shipment. This change will permit NRC staff adequate time to verify the information provided in the advance notification.

This final rule revises the definition of radioactive waste and incorporates aspects of the removed definition of incidental radioactive material (IRM). The revised definition of “radioactive waste” improves consistency with and eliminates some of the differences between the licensing requirements for export and import and the domestic licensing requirements for possession. The revised definition links the specific license requirement for the export and import of radioactive waste to those materials (in the form of waste) that require a specific license in accordance with NRC's domestic regulations. This eliminates the need for a specific license to export or import materials that, under NRC's regulations in 10 CFR chapter 1, do not require a specific license to possess them.

These changes require a specific export or import license for any material that, in accordance with the requirements in 10 CFR chapter 1, requires a specific NRC license to possess it domestically, which is exported or imported for the purposes of (1) disposal in a land disposal facility as defined in part 61, a disposal area as defined in appendix A to part 40, or an equivalent facility; or (2) recycling, waste treatment or other waste management process that generates radioactive material for disposal in a land disposal facility as defined in part 61, a disposal area as defined in Appendix A to part 40, or an equivalent facility. This change simplifies the regulatory framework by clearly stating that exporting or importing material for recycling, waste treatment, or other waste management process that generates radioactive material for disposal in a 10 CFR part 40 or part 61 facility (or the equivalent) requires a specific export or import license.

The final rule removes the definition of “incidental radioactive material” from 10 CFR part 110. This rule does incorporate aspects of IRM into the revised definition of radioactive waste and the exclusions from that definition. The scope of the exclusion related to contamination on service equipment (including service tools) used in nuclear facilities (if the service equipment is being shipped for use in another nuclear facility and not for waste management purposes or disposal) is expanded and broadened to include some of the material that previously fell under the definition of IRM such as launderable protective clothing.

In response to comments, the Commission clarified that the first exclusion to the definition of “radioactive waste” applies only to sources of U.S. origin. Disused sources that originated in a country other than the United States would be considered “radioactive waste” under 10 CFR part 110. Exclusion two is revised to clarify that the broader meaning of “nuclear facility” is intended and that the material must be shipped solely for recovery and beneficial reuse of the non-radioactive material. In addition, an illustrative list of activities that would meet the standard set forth in exclusion two is added to the Statement of Considerations. The Commission also added a sixth exclusion to the definition of “radioactive waste” to address the question of recycling activities that would not be considered as radioactive waste, such as utilizing depleted uranium in shielding applications or catalyst manufacturing. The six exclusions are set forth below:

1. Radioactive material in sealed sources or devices containing sealed sources that are of U.S. origin and being returned to any manufacturer, distributor or other entity which is authorized to receive and possess them. This change allows the return of U.S. origin sources or devices to distributors and other appropriately authorized entities. A specific import license is required for the importation of sources originating outside of the United States for disposal in the United States. Licensing and notification requirements for Category 1 and Category 2 quantities of material listed in Table 1 of Appendix P are applicable.

2. A contaminant on any non-radioactive material (including service tools and protective clothing) used in a nuclear facility (an NRC- or Agreement State-licensed facility (or equivalent facility) or activity authorized to possess or use radioactive material), if the item is being shipped solely for recovery and beneficial reuse of the non-radioactive component in a nuclear facility and not for waste management purposes or disposal. The scope of the exclusion is expanded and broadened to include some of the material that previously fell under the definition of IRM such as launderable protective clothing. Other examples of materials meeting this exclusion include:

(a) Importing contaminated metal for the purpose of recovery of the non-radioactive metal for beneficial reuse as shield blocks or other industrial/construction purposes in licensed facilities domestically and abroad is an import not “solely” for waste management or disposal purposes. This example is within the scope of exclusion two even though the recycling process will produce some waste that may require disposal at a part 61 disposal site. This is similar to the laundering of protective clothing, which also may have a waste stream to a 10 CFR part 61 facility.

(b) Decontamination and repair of contaminated equipment such as pumps, valves, and motors that after recovery would be beneficially reused in a licensed facility.

(c) Decontaminating shipping containers used to import radioactive material for the purpose of reusing the shipping containers.

(d) Importing contaminated magnesium metal and using the recovered magnesium as a neutralizing agent for disposing of mixed waste in a licensed disposal facility.

3. Materials exempted from regulation by the NRC or equivalent Agreement State regulations. This exclusion is consistent with the previously mentioned revision that links the requirement for a specific import or export license for radioactive waste to the specific licensing requirements in 10 CFR chapter 1 (e.g., 10 CFR parts 30, 40, and 70). This change eliminates some of the differences between NRC's export and import regulations and domestic regulation of the same material or equipment.

4. Materials generated or used in a U.S. Government waste research and development testing program under international arrangements.

5. Materials being returned by or for the U.S. Government or military to a facility that is authorized to possess the material. This exclusion recognizes that the U.S. Government or military will, in certain circumstances, seek to return material to the United States. Material returned must be to a facility that is authorized to possess the material.

6. Materials imported solely for the purposes of recycling and not for waste management or disposal where there is a market for the recycled material and evidence of a contract or business agreement can be produced upon request by the NRC. This exclusion was added to address concerns regarding the legitimate recycling of radioactive material that might otherwise be seen as waste. For example, under certain circumstances, this exclusion would permit the import under general license of depleted uranium for use in shielding applications or catalyst manufacturing.

In response to comments, the Commission revised §§ 110.43 and 110.45 to clarify that the NRC consults, as applicable, with the Agreement State in which the facility is located and low-level waste compact commission(s).

The Commission received 14 letters from the public commenting on the proposed rule. The commenters represent a variety of interests. Comments were received from individuals, licensees, Federal and State agencies, and citizen, environmental, and industry groups. The comments addressed a wide range of issues concerning the proposed changes to 10 CFR part 110. Many of those responding to the proposed rule commented on multiple sections; therefore, several comments have been separated by section and addressed. Likewise, similar comments have been consolidated. The following is a summary of all significant comments, along with the NRC's responses.

Comment: One commenter stated that the proposed definition for “bulk material” in § 110.2 is confusing. The commenter seeks clarification on whether the definition is intended to cover “raw” material (material produced in reactors) that is then incorporated into sealed sources. The commenter also states that the proposed definition seems to imply that Category 3, 4 and 5 sources would be considered bulk material. The commenter asked how it is known when the quantity is deemed to pose a risk similar to or greater than a Category 2 source.

Response: The definition of bulk material includes both “raw” material produced for encapsulation in sealed sources, as well as, Category 3, 4, and 5 sealed sources that, in aggregate, are equal to or exceed Category 2 activity thresholds. The NRC believes that no changes are necessary to the proposed definition for “bulk material” and it is unchanged in this final rule.

Comment: One commenter suggested that the definition of “radioactive waste” should include other disposal methods that are approved by the NRC and Agreement States such as alternative disposals under 10 CFR 20.2002.

Response: The intent of the proposed changes to the definition of “radioactive waste” is to align the NRC's export and import regulations with its domestic regulations; therefore, if a specific license is required for a domestic licensee to possess the material, then a specific license to export/import the material would also be required. The NRC and Agreement State licensees may request approval for alternative disposal methods for wastes held under their domestic possession license in accordance with 10 CFR 20.2002 or equivalent Agreement State regulations. Waste could not be imported and directly disposed of under 10 CFR 20.2002, as this type of authorization can only be granted to persons regulated by the NRC or the Agreement States. No change was made to the proposed definition of “radioactive waste” as a result of this comment.

Comment: One commenter suggested revising the proposed definition of “radioactive waste” to clarify that it does not include spent fuel. The respondent noted that it is not clear from the definition what the term “equivalent facility” includes and therefore the definition could be construed to include a facility for the disposal or storage of spent fuel or material that results from recycling, treatment or processing of spent fuel. This commenter also stated that the term “material imported for recycling * * *” could be read to include spent fuel. Another commenter also noted that the term “recycling” could be confused with the reprocessing of nuclear fuel.

Response: The change to the definition of “radioactive waste” in 10 CFR part 110 refers exclusively to low level radioactive waste (LLW). Spent or irradiated fuel is not considered to be LLW; therefore, the definition of “radioactive waste” in 10 CFR part 110 does not include spent or irradiated fuel. A sentence has been added to the proposed definition of “radioactive waste” to clarify in this final rule that it does not include spent or irradiated fuel.

Comment: One commenter expressed concern about implementation of the revised definition of “radioactive waste” and the correlation between the need for a specific export or import license and the need for a specific domestic license for the same material. This commenter asked if the NRC will make its determination based on whether the conditions in the domestic specific license held by the potential exporter or importer allow possession of the foreign material. The commenter also asked if the NRC will judge the need for an export or import license only against NRC-issued specific licenses or against Agreement State-issued licenses as well. The commenter noted that the NRC and Agreement States have flexibility in writing license conditions and consequently, there may be a lack of national uniformity in the kinds of radioactive materials a domestic specific licensee may possess.

Response: An NRC import license only allows material to be brought into the United States. Once the material is in the United States, the material is subject to the domestic authorization process and operates no differently than if the material were of domestic origin. The import license is not a mechanism to alter the established domestic authorization process, including Agreement State regulations. The NRC will not issue an import license for radioactive waste unless the U.S. importer is authorized to possess the material under the applicable domestic regulation, whether that regulation is an Agreement State's or NRC's. No change was made to the proposed definition of “radioactive waste” as a result of this comment.

Comment: One commenter noted that the NRC's “changes to 10 CFR part 110 will facilitate the licensing process for exports and imports of radioactive waste * * *” This commenter suggested that the NRC complete an Environmental Impact Statement (EIS) to address the increased import of radioactive waste from foreign countries and their shipment within the United States. Further, this commenter would like the EIS to address cumulative impacts from shipments of all radioactive wastes from existing and new nuclear facilities, including shipments resulting from license extensions at existing facilities and the increased shipment of radioactive wastes expected as a result of proposed changes to 10 CFR part 110.

Response: Under 10 CFR 51.22(c)(1), amendments to 10 CFR part 110 are categorically excluded from environmental review based on a Commission finding by rule that this category of action does not individually or cumulatively have a significant effect on the human environment. In any event, the NRC does not anticipate an increase in imports or shipping of radioactive waste as a result of this revision. Therefore, no change was made to the proposed definition of “radioactive waste” as a result of this comment.

Comment: One commenter noted that the United States does not currently have an approved radioactive waste repository and questions how accepting imports of radioactive waste is consistent with the NRC's mission to protect human and environmental health. The commenter further stated that if Yucca Mountain were opened in the near future, the current stockpiles of radioactive waste in the United States would fill the repository. This commenter suggested a moratorium on imports of radioactive waste until an approved repository is opened.

Response: The definition of “radioactive waste” in 10 CFR part 110 refers exclusively to low-level radioactive waste. There are currently several low-level waste disposal facilities in the United States. High-level waste is not addressed in this final rule. Therefore, no change was made to the proposed definition of “radioactive waste” as a result of this comment.

Comment: One commenter suggested that the term “recycling” in the proposed definition of “radioactive waste” be removed or defined further to clarify that recycling under the general license is authorized when the recycling provides for a beneficial re-use of the material. Another commenter noted that the proposed definition of “radioactive waste” is ambiguous with regard to the import of radioactive materials imported and used as “raw” materials directly by manufacturing facilities as opposed to waste processing facilities. The commenter stated that the proposed definition includes “radioactive material” that requires a specific license for possession and is intended for disposal, recycling, waste treatment or some other waste management process. As asserted by the commenter, the ambiguity is that as raw material, waste treatment or waste management would not apply to such non-waste; however, “recycling” without further clarification seems to inadvertently include non-waste, “raw” materials. The commenter suggested that the term “recycling” be modified to a more restrictive phrase such as “waste component recycling” which would clearly not apply to “raw” materials. As another possibility, the commenter suggested restricting the definition of radioactive waste to those imports that are consigned to licensed waste treatment and disposal facilities, so that imports of radioactive material going to licensed manufacturing facilities would not be included.

Another commenter addressed the concept of recycling in the context of exclusion two to the proposed definition of “radioactive waste,” stating that the term “recycling” in the main part of the definition seems to conflict with “recovery and beneficial use” in the exclusion. In the commenter's view, recycling means the recovery and beneficial re-use of the recovered material. The commenter stated that it appears the intent of the proposed definition is to clarify that, in general, while radioactive material imported for the purpose of processing and disposal is waste, radioactive material imported for the purpose of beneficial re-use is not waste as long as the re-used non-radioactive material is used in a nuclear facility. The commenter offered two suggestions to clarify this apparent conflict. First, the commenter suggested that we insert the word “recycling” prior to “for recovery and beneficial use” in the text of the exclusion. Second, the commenter suggested that we include a clarifying statement in the Statement of Considerations for the final rule that says the intent of the exclusion is to provide an exception to the general rule that would permit recycling under the general license where the recycling provides for beneficial re-use of the non-radioactive material in an environment licensed by the NRC or an Agreement State.

Response: In order to address the numerous concerns regarding the legitimate recycling of radioactive material that might otherwise be seen as waste, the NRC has decided to add a sixth exclusion to the proposed definition of “radioactive waste” to clarify that the definition does not include material imported solely for the purposes of recycling and not for waste management or disposal where there is a market for the recycled material and evidence of a contract or business agreement can be produced upon request by the NRC. An example of such material would be depleted uranium for use in shielding applications or catalyst manufacturing. An example of “recycling” that would be considered “radioactive waste” is the use of combustible material (such as wood or oil) as an energy source at an NRC- or Agreement State-licensed facility.

An import for the purpose of recycling is similar to the importation of useable radioactive materials and products, which occurs routinely. With respect to recycling of materials, as with products that contain radioactivity, recycled materials have a beneficial use yet waste may be generated as they are recycled. In the United States, these wastes would be managed safely in accordance with domestic licensing requirements.

The Commission is aware that there could be instances in which a person intends to import what is in fact radioactive waste, but which is argued to be for recycling purposes (i.e., sham recycling). Any person who imports materials under a general license for recycling, but with the purpose of disposing of them in the United States, would be subject to NRC enforcement action. In addition, there may be instances in which some small value may be obtained from the materials that are imported, but the primary intention is for disposal. In such cases, to avoid possible enforcement action, the staff recommends that the Commission be consulted before any such imports are made. This final rule includes the six exclusions under the definition for “radioactive waste.”

The Commission does not accept the second commenter's suggestion to add the word “recycling” to exclusion two because the use of the word “recycling” could potentially open exclusion two to other general forms of recycling, which would not meet the intent of the exclusion. The intent of exclusion two is exclusively for the importation of materials being recovered and reused in an NRC- or Agreement State-licensed facility.

Comment: Several commenters addressed the proposed changes to exclusion one to the definition of “radioactive waste” regarding sealed sources and devices. Two commenters expressed support for the proposed changes and stated that they will allow for sources to be transferred and transported easily to an entity that may be able to recertify the source or recycle the source for beneficial use rather than disposal. Another commenter suggested that the purpose of the exclusion should be clarified to indicate that it does not cover importing sources originating in other countries for disposal in the United States.

Response: Exclusion one to the proposed definition of “radioactive waste” has been revised in this final rule to clarify that this exclusion only applies to sources of U.S. origin. Disused sources that originated in a country other than the United States would be considered “radioactive waste” under 10 CFR part 110. Therefore, in the case of an import, a specific license is required for the importation of sources (in the form of waste or disused sources) originating outside of the United States for disposal in the United States. Licensing and notification requirements for Category 1 and 2 quantities of materials listed in Table 1 of appendix P to 10 CFR part 110 are applicable.

Comment: One commenter stated that importation of material destined for re-use should require a specific license. The application for a specific license constitutes a form of public disclosure and the public should be aware of radioactive materials, such as radioactive metals, that may be reused. This commenter asserted that reused radioactive metal could contaminate the general supply of reused scrap metal if it eventually makes its way back to unrestricted use. Consequently, the public should be notified and provided the opportunity to comment on a specific license for the import of radioactive materials proposed for reuse.

Response: The intent of this change is to address the re-use and recovery of these materials for use in an NRC- or Agreement State-licensed facility. Once imported to an NRC- or Agreement State-licensed facility the material and any waste generated as a result of the re-use or recovery process is subject to NRC or Agreement State domestic licensing requirements. Therefore, no change was made to the definition of “radioactive waste” as a result of this comment.

Comment: Several commenters asserted that the second exclusion to the proposed definition of “radioactive waste” could be abused if only a small fraction of the import is for recovery or beneficial use of the non-contaminated material. Two commenters addressed the proposed language “not solely for waste management purposes or disposal” at the end of the exclusion. One commenter stated that this phrase should be further clarified, changed or replaced to indicate that the portion of the import destined for disposal must, at all times, be considered radioactive waste. Another commenter thought the closing phrase unnecessary because, if the import is for recovery and reuse of the non-radioactive material, then the import would never be “solely” for waste management purposes or disposal. This commenter speculated that the intent of the language is to ensure good faith intent for recovery and reuse of the material. This commenter recommended that this concern be addressed by stating that the purpose is “primarily” for recovery and re-use since all recovery efforts will likely have some waste processing or disposal aspects. The term “primarily” is proposed to make it clear that the recovery operation produces a product that is in fact useful and that the recovery operation is in good faith and not a pretense for waste management. The commenter recommended rewording the exclusion to read “* * * if the material is being shipped primarily for recycling, i.e., recovery and beneficial use of the non-radioactive material in a nuclear facility.” Another commenter asserted that some of the exclusions under the proposed definition of “radioactive waste” should be more restrictive. Specifically with regard to the second exclusion, the commenter stated that the disposable radioactive portion of the imported material should be recognized as “radioactive waste” at the time of import; otherwise, that disposable radioactive portion could simply appear to be domestic waste resulting from domestic processing.

Response: In the definition of “radioactive waste” in this final rule, the word “solely” has been moved from its proposed location in front of “for waste management” to between “shipped” and “for recovery” in order to clarify the intent of the exclusion. Once items have been imported to an NRC- or Agreement State-licensed facility for beneficial recovery and/or re-use these items would then be subject to the NRC's or Agreement State's domestic licensing requirements. Circumvention of the specific licensing requirements for radioactive waste is subject to NRC or Agreement State enforcement action.

Comment: One commenter noted that “launderable protective clothing” and “service tools” are the examples provided in the second exclusion to the definition of “radioactive waste.” This commenter suggested that the Statement of Considerations for the final rule expand on the discussion of examples in order to avoid confusion related to the use of the term “incidental radioactive material.” The commenter also asserted that an expanded discussion of examples would help define what satisfies the standard of “primarily for recovery.” The commenter recommended including, at a minimum, the following examples:

(a) Importing contaminated metal for the purpose of recovery of the non-radioactive metal for beneficial re-use as shield blocks or other industrial/construction purposes in licensed facilities domestically and abroad is an import not “solely” for waste management or disposal purposes. The commenter noted that this example fits the language in the proposed rule even though the recycling process will produce some waste that will need to be sent to a 10 CFR part 61 disposal site. This is similar to the laundering of protective clothing, which also has a waste stream to a 10 CFR part 61 facility.

(b) Decontamination and repair of contaminated equipment such as pumps, valves, and motors that after recovery would be beneficially reused in a licensed facility.

(c) Incinerating contaminated wood or oil to generate steam in a licensed facility for process heat or electricity.

(d) Decontaminating shipping containers used to import radioactive material for the purpose of reusing the shipping containers.

(e) Importing contaminated magnesium metal and using the recovered magnesium as a neutralizing agent for disposing of mixed waste in a licensed disposal facility.

In addition to the examples provided above, the commenter recommended that the NRC include any other examples that it has found acceptable in the past.

Another commenter also requested the NRC provide such a list and went on to suggest amending § 110.27 to add a paragraph (g) that reads:

The commenter stated that this proposed provision would be solely a notice provision. It would not establish an obligation for the importer to await any NRC action following submittal of the form to the NRC.

Response: The first commenter's examples (a), (b), and (d) would meet the standard for “primarily for recovery” provided there is a market for the recovered product to be reused in an NRC or Agreement State licensed facility and evidence of a contract or business agreement can be produced upon request by the NRC. The commenter's example (e) would also meet the standard but it must be primarily for recovery and reuse of magnesium. Example (c) does not meet the standard for “primarily for recovery” because it is an example of a waste process with a small amount of energy produced as a byproduct. The NRC does not consider waste processes to be “primarily for recovery.”

In response to the second commenter's request for the provision of information on NRC Form 7, the NRC does not feel that placing an additional regulatory compliance burden on the public is warranted at this time. The NRC believes that any questions the public may have regarding compliance with exclusion two to the definition of “radioactive waste” would best be addressed individually on a case-by-case basis. In accordance with 10 CFR 2.390, the NRC will make examples of recovery activities under exclusion two to the definition of “radioactive waste” publicly available. No changes to the proposed definition of “radioactive waste” were made as a result of these comments.

Comment: One commenter asserted that the term “nuclear facility” is unclear. The commenter asked whether the term is being used as in the Atomic Energy Act to mean a “production” or “utilization” facility, or is it intended to have a broader meaning to include any plant or activity which is licensed for use or possession of radioactive material? The commenter recommended that the term “nuclear facility” be defined as “a plant or activity licensed by either the Commission or an Agreement State for possession or use of radioactive material.”

Response: The NRC has revised exclusion two to the proposed definition of “radioactive waste” to clarify that the broader meaning of facility is intended in this final rule.

Comment: Two commenters addressed exclusion five to the definition of “radioactive waste” regarding the U.S. government or military. One commenter stated that the purpose and intent of this new exclusion is not clear, and that the circumstance, or combination of circumstances, under which the U.S. government or military would need to return material to an authorized U.S. facility could be interpreted very broadly. Another commenter suggested that U.S. government waste research and development testing programs under international arrangements should be specifically identified, along with appropriate caps on the total amounts of relevant wastes to be imported and exported each year.

Response: This is not a new addition to 10 CFR part 110. Current regulations at § 110.27, General license for imports, only allow the return of material under a general license if the material was going to a military or government facility. In the proposed rule, this concept was moved from § 110.27 to § 110.2 as an exclusion to the definition of “radioactive waste” and expanded to include an allowance for the U.S. military to bring radioactive waste items back to a licensed facility in the United States. The proposed provision is unchanged in this final rule.

Comment: One commenter sought clarification on why the retransfer of byproduct material is not included in the requirements of § 110.6. The commenter also sought clarification on whether retransfers of special nuclear material produced through the use of U.S.-obligated material are subject to the requirements of this section.

Response: Byproduct material is not covered by the requirements of § 110.6 because there is no retransfer restriction on byproduct material in the Atomic Energy Act. Retransfers of special nuclear material produced through the use of U.S.-obligated material are subject to the requirements of this section.

Comment: One commenter questioned the proposed revision to § 110.26(a) to cover “components solely of U.S. origin” for three reasons:

The commenter noted that many U.S. companies have international markets as well as foreign-based manufacturing facilities or joint ventures. Such global companies will import nuclear spare parts or components for utilization in larger U.S.-built nuclear components for sale both within the United States as well as outside of the United States. The commenter stated that these U.S. imports and subsequent exports create and maintain U.S. jobs and should not be delayed or subjected to a new NRC component license application process and associated application fees. The commenter said that to do so would remove a vital part of the purpose of § 110.26, which is to enable U.S. companies to export nuclear components quickly to a select list of generally authorized countries that do not require an NRC validated export license. These component exports are subject to NRC reporting requirements, but they enable the U.S. nuclear industry to sell our components in a very efficient manner to pre-approved countries. According to the commenter, the proposed change would penalize the U.S. nuclear industry in the world marketplace and cause a giant step backwards in the U.S. nuclear industry's ability to freely sell these nuclear components or parts to pre-approved countries that are not subjected themselves subjected to similar restrictions.

Response: The NRC believes the commenter makes a valid point regarding limiting the general license under § 110.26 to “components solely of U.S. origin.” With the increasing globalization of the nuclear industry, U.S. nuclear companies are outsourcing more and more items, including parts and components for reactor equipment and fuel assemblies. However, since the U.S. industry has been able to accept the current language of § 110.26 which allows use of the general license for “U.S. origin” component exports to a select list of countries, even when the “U.S. origin” component includes non-U.S. content, the proposed language is retained in this final rule. Further, the NRC added clarifying language to § 110.26 stating that “U.S. origin” includes components produced or finished in the United States, even with non-U.S. content unless the foreign content is obligated by supplier government conditions, such as a prior consent for retransfer condition.

Comment: Two commenters addressed the proposed amendment to § 110.27 that would remove the paragraph that addresses activities conducted under a contract with the Department of Energy (DOE). The commenters suggested revising the Section-by-Section Analysis for § 110.27 to state that the NRC's import regulations do not apply to the DOE imports of source, special nuclear or byproduct material, including imports conducted on DOE's behalf by DOE contractors. The commenters also state that the Statement of Considerations for the proposed rule cites sections 54, 64, 82, and 91 of the Atomic Energy Act which govern exports, not imports, and are not applicable in this context.

For purposes of clarification, one commenter, suggested that in § 110.27(b), the words “source or special nuclear” should be inserted before “material” so that the sentence reads as follows:

Response: The NRC's import regulations do not apply to DOE imports of source, special nuclear, or byproduct material including imports conducted on DOE's behalf by DOE contractors. The removal of § 110.27(a)(1) clarifies that DOE is not subject to NRC import licensing requirements. The Atomic Energy Act citations in the Statement of Considerations for the proposed rule apply to exports, not imports. The sections of the Atomic Energy Act that apply to imports of special nuclear, source or byproduct material are sections 53, 62, and 81. Section 110.27(b) has been rewritten in this final rule in response to the request for clarification.

Comment: One commenter noted that the clear intent of the proposed rule, as expressed in the Statement of Considerations to the proposed rule, is to grant a general license for the import of materials that are exempt from domestic licensing (e.g., material exempted by 10 CFR 40.13(a)) by the NRC. Section 110.27(a) of the proposed rule would grant a general license for the import of byproduct, source, and special nuclear material if the U.S. consignee were authorized to possess such material under a general or specific license from the NRC or an Agreement State. The commenter asserted that while the new definition of “radioactive waste” in the proposed rule would exclude “exempt” material such as 10 CFR 40.13(a) material, the controlling provision for the import of material under proposed § 110.27(a) seems to be the possession of an existing general or specific license. The commenter stated that under the framework for the domestic licensing of byproduct, source, or special nuclear material, general licenses are not synonymous with “exemptions” for material: No license is required for the possession of exempt material. The commenter stated that § 110.27(a)(2) of the current regulations does grant a general license for the import of “exempt” material; however, this section would be deleted under the proposed rule, and the commenter suggested that original language be retained.

Response: The NRC's revisions to the definition of “radioactive waste” in 10 CFR part 110 are designed, in part, to align export/import licensing criteria with domestic regulations that are implemented by the NRC and the Agreement States. If a specific license is required domestically, a specific import or export license would also be required. The changes to the definition of “radioactive waste” and the deletion of § 110.27(a)(2) are consistent with the intended alignment in that if the material (meaning any exempt material, not just material in the form of waste) is exempt from requiring a license domestically (e.g., 10 CFR 40.13(a) is only one example of an exemption), then that same material would be exempt from requiring a general import license as well. Therefore, an additional provision to provide authorization to import under a general license is redundant and unnecessary. As proposed, § 110.27(a)(1) and (a)(2) are removed in this final rule.

Comment: Two commenters generally addressed the proposal to allow imports of Category 2 quantities of materials under a general license. Specifically, they noted that imports conducted under the authority of a general license are not subject to the same public notification and comment requirements as imports conducted under specific licenses. One respondent stated that the general license could be used for unlimited imports without public knowledge.

Response: While it is correct that imports under a general license are not subject to the same public notification requirements as a specific license, the NRC is aware of and continues to regulate such imports. In accordance with § 110.50, pre-shipment notification is still required by the importer. Additionally, domestic licensees must report receipt of Category 1 and 2 radioactive sources to the NSTS. Imports of radioactive material into the United States are contingent on the consignee being authorized to receive and possess the material under a general or specific NRC or Agreement State license.

Comment: One commenter recommended that the NRC require more specificity in the application for a specific license to import radioactive waste and that foreign waste retain its “country of origin” attribution from import through disposal. With regard to the specificity in an application, this commenter is primarily concerned with the concept of waste characterization versus waste classification prior to its import. Specifically, the commenter noted that under the proposed rule, the NRC would only require an applicant to classify the radioactive waste in accordance with 10 CFR 61.55 when the waste is being imported for direct disposal. The commenter stated that this provision is too narrowly written and most waste would escape classification. The commenter asserted that if the imported waste was first processed or managed and then disposed of, under the proposed rule, the waste would not be classified prior to import. This commenter also stated that by allowing the importer to characterize the waste rather than classify it prior to import, the NRC may allow the import of radioactive waste that cannot be disposed of in this country. Further, the host state or compact would have insufficient information to make an informed decision about the appropriateness of the waste for disposal at facilities under its jurisdiction. Another commenter stated that in the past, there have been situations where all the disposition pathways for waste resulting from the processing of imported radioactive wastes were not clearly identified in the original import license application. The commenter recommended that the NRC require license applications for the import of radioactive waste to include a list of all facilities that are projected to receive wastes for disposal that result from imported wastes. This should include licensed low-level waste disposal facilities as well as landfills that are licensed to accept materials such as those surveyed for bulk release (exempt wastes). The commenter stated that this would ensure that parties responsible for evaluating the application have the information necessary to conduct a thorough review.

Response: As discussed above in Section I.B of this document, the NRC's revisions to the definition of “radioactive waste” in 10 CFR part 110 are designed, in part, to align export and import licensing criteria with domestic regulations that are implemented by the NRC and the Agreement States. Therefore, if a specific license is required to possess the material domestically, a specific license would be required to import or export that waste material. In accordance with domestic regulations, the NRC, when processing applications for the import of radioactive waste, would follow the waste attribution approaches used in the United States, which are, in almost all cases, developed by the Agreement States and compacts.

Under domestic licensing requirements, waste disposed of at a 10 CFR part 61 or equivalent Agreement State-licensed facility must be classified in accordance with 10 CFR 61.55. Under the shipping manifest requirements in Appendix G to 10 CFR part 20, waste must be classified when it is being shipped for disposal. It is not required to be classified before shipment for disposal, i.e., waste being sent to a processor need not be classified, but waste being shipped directly for disposal must be classified in accordance with 10 CFR 61.55. The waste classification requirements are designed to provide for protection against an inadvertent intruder into a waste disposal site 100 years or more after the site is closed. For higher concentrations of waste (and higher waste classes), additional measures are required at the disposal site to ensure that the intruder is protected even from wastes that pose a greater hazard. Thus, the classification of waste at intermediate points in its processing is not relevant to the purpose of waste classification.

The final rule does not require classification of waste being imported to a waste processor because such classification would have no safety relevance at that time. The licensed waste processor, after processing the waste, must classify the waste which would ensure that the disposal site facility requirements are met. This approach is consistent with domestic requirements. It should be noted that the NRC Chairman, on October 8, 2009, requested a vote paper from the NRC staff addressing blending of low-level radioactive waste. While blending is not related to the import of waste, the issue of when waste is to be classified will be addressed in the paper. Current regulations require that waste be classified when shipped for disposal. If, as a result of this current review, changes are made in classification requirements or practices, the staff will implement review procedures for waste import applications consistent with new domestic practices or requirements.

While it is agreed that it is undesirable to import waste that cannot be disposed of in the United States, the NRC will ensure, in its review of license applications, that when there is uncertainty regarding the final waste classification of waste to be disposed of, that an export license application has been applied for to ensure that no waste is left in the United States without a disposal option. This ensures that any waste without a domestic disposal option will not be orphaned in the United States, but will be returned to the country of origin.

With respect to Agreement States and compacts making informed decisions, the NRC will ensure in its consultations with States and compacts, as applicable, that the waste to be processed and disposed of meets the classification requirements of the disposal facility and the license conditions of any intermediate facilities, such as a waste processor. The final rule notes that license applicants would need to characterize the waste before import to ensure that it meets the license requirements for a domestic processor. However, consistent with domestic regulations, classification is not required, since waste classification is designed to ensure safety of waste to be disposed of, and is not related to safety of the waste at intermediate points in its processing.

In response to the concerns raised by the second commenter regarding clearly identifying an imported waste's disposition pathway, the NRC will consult with the Agreement State and, if applicable, the low-level waste compact commission to ensure that an appropriate facility is authorized to accept waste for management or disposal.

With respect to the commenter's recommendation that import license applications include a list of all facilities projected to receive imported waste, under domestic regulations a waste processor receiving foreign waste could only transfer processed waste to authorized recipients. Thus, there would be no safety or security concerns, once waste was received by an authorized waste processor.

It is possible that other waste management or disposal facilities receiving waste from a processor could be subject to laws or regulations applicable to foreign wastes; however, assurances that foreign waste could be accepted at these facilities would be needed. Such assurance could come from consultations with the States and compacts. In cases where foreign waste is attributed to the foreign low-level waste generator, the NRC will consult with other affected States and compacts that receive processed waste. Section 110.32(f)(6) places an obligation on the foreign waste import applicant to identify where the waste, not attributed to the processor (i.e. foreign waste that remains attributed to the foreign low-level waste generator), will be disposed of within the United States. Again, in accordance with domestic regulations, the NRC will follow the waste attribution approaches developed by the Agreement States and compacts in its processing of applications to import foreign waste. There, the applicable provisions of the proposed rule are unchanged in this final rule.

Comment: Several commenters expressed support for the proposed revisions to §§ 110.43 and 110.45, that provided clarification that the NRC consults (with respect to the import of radioactive waste) with the host State(s), and, if applicable, the appropriate low-level waste compact commission(s) to confirm that an appropriate facility has agreed to accept and is authorized to possess the waste for management or disposal. However, one commenter suggested that the NRC should codify the requirement to obtain the consent of any host State that is the proposed destination for imported radioactive waste before approving an import application by adding a new paragraph (g) to § 110.43.

Another commenter sought clarification regarding what the NRC intends to do if there is an impasse between the NRC and a host State or compact concerning whether an appropriate facility is authorized to accept foreign radioactive waste for disposal.

A third commenter suggested that the NRC should distinguish between Agreement States that should be consulted to determine if the site is licensed for disposal and host States under the compact system that are consulted to determine if the disposal is allowed under compact rules. Citing EnergySolutions, LLC v. NW Interstate Compact on Low-Level Radioactive Waste Mgmt., No. 2:08-CV, D. Utah, June 17, 2009, this commenter stated that for a non-compact site such as the EnergySolutions Clive site, the concepts of host States and compacts do not apply. For a non-compact site, consultation with the State in which the site is located should only address the authorization for disposal under the State's Agreement State authority. This commenter recommended that §§ 110.32(f)(6), 110.43(d), and 110.45(b)(4) should be changed to address these distinctions.

Response: The NRC revised §§ 110.43 and 110.45 in this final rule to further clarify those contacted and the intent of the proposed change. In response to the commenter's question regarding the NRC's actions in an impasse, the NRC believes that such an impasse is unlikely because the appropriateness and authorization of a facility will be determined by the regulatory authority (i.e. the NRC or Agreement State) and compacts as applicable.

Comment: One commenter sought clarification of the intent and purpose of the incorporation by reference of the current INFCIRC/225/Rev. 4 (corrected), June 1999, in § 110.44(a). The commenter stated that it is their understanding that INFCIRC/225/Rev. 4 (corrected), June 1999, is currently undergoing review and revision by the IAEA and international community; incorporation by reference of the current INFCIRC document may not address the applicability of substantial INFCIRC changes underway that could be potentially incorporated in the future. The commenter stated that changes to INFCIRC/225/Rev. 4 (corrected), June 1999, may have a significant impact on physical security standards, policy, and guidance, both domestic and international.

Response: The NRC is aware of the current review by the IAEA and the international community and will make any necessary changes to this section once that document is finalized. Therefore, INFCIRC/225/Rev. 4 (corrected), June 1999, “The Physical Protection of Nuclear Materials and Nuclear Facilities” continues to be incorporated by reference in § 110.44(a) of this final rule.

Comment: Currently, notifications for imports are required to be submitted at least seven days in advance of each shipment, to the extent practical, but in no case less than 24 hours in advance of each shipment. Several commenters addressed the proposed amendment to § 110.50(c) that would require advance notification for imports to be submitted seven days in advance of shipment. Specifically, one commenter stated that a seven-day advance notification requirement would cause many importers of Category 2 sources to be out of compliance with the proposed regulation. This commenter noted that there are many instances where his customers do not tell him when a source is being returned.

Another commenter stated that it is unclear why the NRC now needs seven-days advance notice. The commenter stated that the only explanation is to allow NRC adequate time to verify information. The commenter questioned the verification information if the importer is an established licensee and routinely receives returned sources. This commenter also noted that the NSTS would account for imported sources once received under an NRC or Agreement State license. The commenter recommended that the NRC have no requirement for advance notification for the import of Category 2 sources because the sources will be accounted for in the NSTS and there is no documented benefit to the advance notification requirement.

One commenter noted that with regard to imports of Category 1 quantities of material, which are typically bulk and raw material shipments, 24-hour advance notification is currently received and that seven-day advance notification is not provided because final shipping arrangements often change on a daily basis. The commenter recommended that the NRC retain the current requirement that allows for 24-hour advance notification.

Response: The pre-shipment notification requirement contained in § 110.50 is being included in this final rule as proposed because the current policy of “no less than 24 hours in advance” is insufficient for NRC staff to verify pre-shipment information and coordinate with other applicable government agencies, such as an Agreement State and/or the U.S. Customs and Border Protection. Insufficient time to complete these activities could result in a delay of the import entering the United States. The NRC suggests that licensees work with their clients to better inform them of their obligations to comply with United States' regulations so that the client can provide the requisite information to ensure the U.S. licensee is not out of compliance. In the event the shipment date is changed after the NRC has been notified, the NRC will not require a revised notification submission if the shipment will take place within 14 days of the initial shipment date provided to the NRC. If the shipment date will be delayed for a longer period of time, a new notification should be provided to the NRC.

Section 110.1, Purpose and scope. This final rule removes paragraph (b)(1) and the remainder of paragraph (b) is renumbered accordingly. Paragraph (b) is clarified regarding the regulation of U.S. Munitions List nuclear items.

Section 110.2, Definitions. This final rule revises the definitions for Agreement for Cooperation, Atomic Energy Act, Classified Information, Conversion facility, Depleted uranium, Effective kilograms of special nuclear material, Embargoed, Executive Branch, General license, Heels, Medical isotope, Natural uranium, Non-Nuclear Weapons State, NRC Public Document Room, Obligations, Person, Physical security, Production facility, Radioactive waste, Radiopharmaceutical, Recipient Country, Restricted destinations, and Specific license. The revision to the definition of radioactive waste is discussed in detail in Section I.B of this document. The definitions for Bulk material, Low-level waste compact, and Nuclear Suppliers Group are added for clarification purposes. In addition, this final rule removes the definition of Incidental radioactive material as discussed in Section I.B of this document.

Section 110.6, Retransfers. This final rule adds language clarifying the scope of the provisions to be consistent with the requirements of the Atomic Energy Act. Paragraph (b) is amended to update the address for the Department of Energy.

Section 110.7, Information collection requirements: OMB approval. This final rule restructures the section for clarification and makes a minor editorial change.

Section 110.7a, Completeness and accuracy information. This final rule makes an editorial change to paragraph (b).

Section 110.10, General. This final rule amends paragraph (c) to clarify that an exemption does not relieve any person from complying with the regulations of other U.S. Federal and/or State government agencies.

Section 110.11, Export of IAEA safeguards samples. This final rule makes editorial changes.

Section 110.19, Types of licenses. This final rule removes paragraph (b) which relates to exports of incidental radioactive material. This final rule also amends paragraph (a) by removing the last sentence regarding compliance with other applicable regulations, and the paragraphs designation. The requirement that general and specific licensees are subject to other applicable laws or regulations is addressed in § 110.50(a).

Section 110.20, General license information. This final rule removes references to “incidental radioactive material” and corrects citations in paragraph (a). Paragraph (d) is amended to preclude use of generally licensed material in any illegal or inappropriate activity such as use in a radiological dispersion device, diversion of material or equipment, and other malicious acts.

Section 110.21, General license for the export of special nuclear material. This final rule removes the general license provision related to the export of incidental radioactive material in paragraph (e) and makes editorial changes to paragraphs (a), (b), and (c).

Section 110.22, General license for the export of source material. This final rule deletes paragraph (c), makes editorial changes, corrects internal reference errors in the section, and adds a reference to paragraph (d) to the text of paragraph (e). Paragraph (c) is removed because it repeats rule text found in § 110.21(b)(3). The final rule also removes the general license provision related to the export of incidental radioactive material in paragraph (g).

Section 110.23, General license for the export of byproduct material. This final rule makes editorial and organizational changes to clarify requirements. The reporting requirements in paragraph (b) for exports of americium and neptunium are moved to § 110.54, Reporting requirements.

Section 110.24, General license for the export of deuterium. This final rule makes editorial changes to clarify the text in order to improve readability.

Section 110.25. This final rule adds and reserves § 110.25. This change is made to clarify that there is not a printing error in 10 CFR part 110 and reserves this section for possible future changes to the regulations.

Section 110.26, General license for the export of nuclear reactor components. This final rule restructures paragraph (a) to clarify that the general license covers components of U.S. origin. In response to a comment received on the proposed rule, a clarifying note is added at the end of § 110.26 regarding “U.S. origin”. The text of paragraph (a)(1) is incorporated into the introductory text of paragraph (a). Paragraphs (a)(2) and (a)(3) are redesignated as (a)(1) and (a)(2), respectively. New paragraph (a)(2) is revised to allow a component to be returned to the United States after final fabrication or repair or to be used in a nuclear power or research reactor in one of the destinations listed in the section. This allows, for example, a component that was sent to Japan for final fabrication or repair to be sent to Spain for use in a nuclear power or research reactor in that country. The list of destinations previously contained in paragraph (a) are now in the new paragraph (b) of this final rule. Subsequent paragraphs are renumbered accordingly.

New paragraph (b) is revised to include additional destinations to which exports may be sent under a general license. These destinations are Cyprus, Estonia, Hungary, Malta, Poland, Slovak Republic, and Slovenia. The United States has received broad generic assurances from EURATOM which also apply to these new EURATOM member countries for purposes of section 109b. of the Atomic Energy Act.

The reporting requirements contained in paragraph (d) for exports of reactor components are moved to § 110.54, Reporting requirements, in this final rule.

Section 110.27, General license for imports. This final rule removes paragraphs (a)(1) and (a)(2). NRC's import regulations do not apply to DOE imports of source, special nuclear, or byproduct material including imports conducted on DOE's behalf by DOE contractors. Paragraph (a)(2) is removed because a general license is not required for the import of byproduct, source, or special nuclear material when that same material is exempt from NRC domestic licensing requirements. This change clarifies that material that is exempt or else not subject to domestic licensing requirements (e.g., § 31.18 and § 40.13) does not require a general or specific import license unless otherwise mandated in 10 CFR part 110.

Paragraph (b) is revised to clarify that the 100 kilograms per shipment limit only applies to the material and does not include the weight of the container. As revised, this paragraph states that the general license in paragraph (a) does not authorize the import of more than 100 kilograms per shipment of source and/or special nuclear material in the form of irradiated fuel.

This final rule revises paragraph (f) by removing the specific license requirement for imports of radioactive material listed in Table 1 of Appendix P to 10 CFR part 110 and referencing the advance notification requirement in § 110.50.

Section 110.30, Members of the Nuclear Suppliers Group. This final rule updates the list of Nuclear Suppliers Group members by adding China, Croatia, Estonia, Iceland, Kazakhstan, Lithuania, and Malta.

Section 110.31, Application for a specific license. The final rule amends this section to require requests for an exemption from a licensing requirement to be filed on NRC Form 7. This is consistent with NRC regulations that require all licensing requests (e.g., exports, imports, amendment, and renewal applications) to be made using NRC Form 7. See 71 FR 19102; April 13, 2006.

This final rule also requires a request for an exemption from a licensing requirement to be accompanied by the appropriate fee in accordance with the fee schedules in §§ 170.21 and 170.31. This change is consistent with the Fiscal Year 2007 NRC Fee Rule which established a flat fee for requests for exemptions from the NRC's export and import licensing requirements. See 72 FR 31402; June 6, 2007. This change updates 10 CFR part 110 to reflect recent changes to the fee schedule in 10 CFR part 170.

Additionally, this final rule adds a signature requirement to § 110.31 that each application submitted on NRC Form 7 must be signed by the applicant or licensee or a person duly authorized to act for and on behalf of the applicant or licensee. This change is consistent with requirements related to applications for specific licenses in other parts of the NRC's regulations. It also clarifies that a signature is required to certify the veracity of information submitted to the agency on the NRC Form 7.

Finally, the order of paragraphs (b) and (c) is reversed so that § 110.31 flows in a more logical manner where the requirement for an application for a specific license to export or import or a request for an exemption from a licensing requirement precedes the requirement that such an application or request be accompanied by the appropriate license fee. In paragraph (b), as revised, “combined export/import” is removed to be consistent with the proposal to allow imports of Category 1 and 2 materials listed in Table 1 of Appendix P of 10 CFR part 110 under general license.

Section 110.32, Information required on an application for a specific license/NRC Form 7. This final rule change to paragraph (b) to clarify that the name and address of any other party, including the supplier of the equipment or material, if different from the applicant, must be provided on the application. Paragraphs (f)(1) and (f)(2) are amended for consistency purposes. Specifically, for the export of nuclear equipment to a foreign reactor, a license application will include the name of the facility so the NRC will know whether Executive Branch review is required, per § 110.41(a)(7).

This section is also amended to clarify that applicants for the import of radioactive waste must provide the classification of that waste as defined in 10 CFR 61.55 when the waste is being imported for direct disposal. If the waste is being imported for treatment or management at an NRC- or Agreement State-licensed waste processor, classification, as defined in 10 CFR 61.55, is not required. Rather, a detailed characterization (physical and chemical characteristics) of the waste being imported for treatment or management must be provided in the application.

Paragraph (g) is deleted to conform to the change that allows Category 1 and Category 2 quantities of radioactive materials to be imported under a general license. This change is discussed in more detail in the section-by-section analysis for § 110.27.

Paragraph (h) is redesignated as new paragraph (g) and allows the exporter of Category 2 quantities of material listed in Table 1 of Appendix P to provide the pertinent documentation that the recipient of the material has the necessary authorization under the laws and regulations of the importing country to receive and possess the material to the NRC at least 24 hours prior to the shipment. The requirement that the applicant for a Category 1 export license provide the NRC, at the time the application is submitted, with pertinent documentation demonstrating that the recipient of the radioactive material has the necessary authorization (usually in the form of a license) under the laws and regulations of the importing country to receive and possess the material remain unchanged.

Section 110.40, Commission review. This final rule amends this section to reduce the number of export license applications that require Commission review, and instead focuses Commission review on the export license applications that raise significant policy issues. For example, mandatory Commission review of export applications for nuclear grade graphite for nuclear end use and 1,000 kilograms or more of deuterium oxide are no longer required unless the export raises an important policy issue. This change also increases the proposed export of one effective kilogram of high-enriched uranium, plutonium or uranium-233 to five effective kilograms for mandatory Commission review. The change mandates Commission review of export and import license applications that raise significant policy issues. Significant policy issues include, but are not limited to, the proposed initial decision on whether to issue a license with special limitations to a country, or the proposed decision on issuance of a license covering a facility where major safety or security issues have been recently raised. If the staff is uncertain whether a license application raises a significant policy issue, the license application should receive Commission review. However, any export that is subject to special limitations as determined by the staff or the Executive Branch will be considered one that raises a significant policy issue and will continue to require Commission review. By focusing on policy issues, this change increases efficiency and reduces fees on routine NRC export applications. This final rule also adds a requirement for Commission review of export applications of material listed in Table 1 of appendix P to 10 CFR part 110 involving exceptional circumstances, as defined in § 110.42, or Category 1 quantities of material to any country listed in § 110.28.

Section 110.41, Executive Branch review. The final rule makes a minor editorial change and requires Executive Branch review of exports raising significant policy issues, including exports of radioactive material listed in Table 1 of appendix P to 10 CFR part 110 involving exceptional circumstances, as defined in § 110.42. Also, the export of radioactive material listed in Table 1 of Appendix P to any country listed in §§ 110.28 or 110.29 requires the review of the Executive Branch in accordance with § 110.41(a)(9).

Section 110.43, Import licensing criteria. This final rule clarifies that, with respect to the import of radioactive waste, the NRC consults with, as applicable, the Agreement State in which the facility is located and the low-level waste compact commission(s) to confirm that an appropriate facility has agreed to accept and is authorized to possess the waste for management or disposal. This change addresses commenters questions that the NRC received on the scope of the Agreement State and low-level waste compact commission's role (if applicable) regarding the NRC's review of import applications for radioactive waste.

Additionally, this final rule removes the import licensing criteria related to the imports of radioactive material listed in Appendix P. This change conforms § 110.43 with the change to allow Category 1 and Category 2 quantities of radioactive materials to be imported under a general license. This change is discussed in more detail in the section-by-section analysis for § 110.27.

Section 110.44, Physical security standards. This final rule corrects the Web site address for the National Archives and Records Administration. Changes to § 110.44(b)(1) clarify that the Commission determinations on the adequacy of physical security measures are based on receipt by the appropriate U.S. Executive Branch agency of written assurances from the relevant recipient country governments that physical security measures for providing protection are at least comparable to the recommendations set forth in INFCIRC/225/Rev. 4 (corrected), June 1999.

Section 110.45, Issuance or denial of license. This final rule removes the parenthetical text in paragraph (a) that states “If an Executive Order provides an exemption pursuant to section 126a of the Atomic Energy Act, proposed exports to EURATOM countries are not required to meet the criteria in § 110.42(a)(4) and (5)”. This is no longer needed because the Agreement for Cooperation in the Peaceful Uses of Nuclear Energy between the European Atomic Energy Community (EURATOM) and the United States of America that went into effect in 1995 obviates the need for a presidential exemption.

This final rule makes conforming changes to paragraph (b)(4) which are consistent with the changes to § 110.43(d), regarding the issuance of an import license for radioactive waste. Paragraph (b)(5) is removed to eliminate the criteria related to the imports of radioactive material listed in Appendix P to 10 CFR part 110. This change conforms § 110.45 with the change to allow Category 1 and Category 2 quantities of radioactive materials to be imported under a general license. This change is discussed in more detail in the section-by-section analysis for § 110.27. Additionally, paragraph (d) is amended to clarify that the provisions in this paragraph do not apply to Commission decisions regarding license applications for specific licenses to export radioactive material listed in Table 1 of Appendix P.

Section 110.50, Terms. This final rule makes several editorial, clarifying, and conforming changes to this section. In paragraph (a)(1), changes clarify that each license is subject to all applicable provisions of the Atomic Energy Act or other applicable law. Paragraph (a)(4) is rewritten and renumbered as paragraph (a)(5) to make clear that each license issued by the NRC for the export or import of nuclear material authorizes only the export or import of that nuclear material and accompanying packaging, fuel element, hardware, or other associated devices or products. Paragraph (b)(5) is revised to remove reference to 10 CFR parts 40, 70, 71, and 73 and renumbered as paragraph (a)(3). This license term applies to both general and specific licenses and is moved to paragraph (a).

In paragraph (b)(2), changes clarify that a licensee may export or import only for the purpose(s) and/or end-use(s) stated in the specific export or import license issued by the NRC. Paragraph (b)(3) is amended by adding a new paragraph (b)(3)(i) and renumbering current paragraphs (b)(3)(i) and (b)(3)(ii) as (b)(3)(ii) and (b)(3)(iii), respectively. New paragraph (b)(3)(i) clarifies that prior to shipment of certain nuclear material or equipment that has associated with it export controls imposed by other countries (foreign-obligated material or equipment), a license amendment may be required to authorize the shipment. Alternatively, the licensee is to give the NRC 40-days advance notice of the intended shipment.

Paragraph (b)(4) is redesignated as new paragraph (c) and includes the requirements for advanced notifications related to the export or import of radioactive material listed in Table 1 of appendix P to 10 CFR part 110. Changes to the advance notification requirements conforms this section to the change to allow Category 1 and Category 2 quantities of radioactive materials to be imported under a general license. This change is discussed in more detail in the section-by-section analysis for § 110.27. Additionally, editorial changes update the Web site information for the Office of International Programs and provide specific details on where to send the information required for export and import notifications.

Section 110.51, Amendment and renewal of licenses. This final rule separates the requirements for license amendments and renewals into separate paragraphs. This change clarifies the differences in requirements between amendment and renewal requests and improves readability of the section. No substantive changes are made to the requirements of the paragraphs.

Section 110.53, United States address, records, and inspections. This final rule clarifies that both general and specific licensees are required to have an office in the United States where papers may be served and where records required by the Commission will be maintained. Also, similar clarifying language is added to paragraph (b) of this section that license applicants and both general and specific licensees shall maintain records concerning its exports and imports. Clarifying language is added that byproduct material records must be retained for three years after the date of each export or import shipment.

Section 110.54, Reporting requirements. The reporting requirements in § 110.23 for exports of americium and neptunium, and in § 110.26 for exports of reactor components have been moved to § 110.54. This change consolidates the reporting requirements in 10 CFR part 110 into one section.

Sections 110.60, Violations, 110.66, Enforcement hearing, and 110.67, Criminal penalties. This final rule makes non-substantive changes for the purposes of consistency and clarification.

Section 110.70, Public notice of receipt of an application. This final rule clarifies that the Commission will publish in the Federal Register a notice of receipt for applications for amendment or renewal for the export of the nuclear equipment and material listed in § 110.70(b)(1) through (b)(5) and for applications for amendment or renewal for the import of radioactive waste. Once a notice has been published, the Commission would not publish in the Federal Register proposed minor amendments to the application or license. Proposed amendments would be posted on the NRC's Web site.

Section 110.80, Basis for hearings. This final rule corrects the omission of the word “import” from the section. This change clarifies that the procedures in 10 CFR part 110 constitute the exclusive basis for hearings on export and import license applications.

Section 110.81, Written comments. This final rule clarifies that 30 days after public notice of receipt of the application means 30 days after the application is posted on the NRC Web site at http://www.nrc.gov or in the Federal Register for those applications required to be published in the Federal Register.

Section 110.82, Hearing request or intervention petition. This final rule adds language stating that hearing requests and intervention petitions are considered timely when filed no later than 30 days after publication of notice on the NRC Web site. This change is consistent with § 110.70, which states that the Commission will notice the receipt of each specific license application for an export or import by making a copy available at the NRC Web site, http://www.nrc.gov. Paragraphs (c)(2) and (c)(3) are renumbered accordingly.

Section 110.112, Reporter and transcript for an oral hearing. This final rule clarifies the scope of information that will be made available at the NRC Web site or Public Document Room. Any portions of the transcript for an oral hearing containing classified information, Restricted Data, Safeguards information, proprietary information, or other sensitive unclassified information will not be made available to the public.

Appendix L to 10 CFR part 110—Illustrative list of byproduct material under NRC export/import licensing authority.

This final rule revises the list of byproduct material in Appendix L to include several radionuclides that are now classified as byproduct material as a result of the Energy Policy Act of 2005, which expanded the definition of byproduct material in Section 11e. of the Atomic Energy Act.

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of Title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State. The NRC will provide the Agreement States additional information so that they can inform their licensees of the change to and obligations under the revised import/export regulations.

The National Technology Transfer and Advancement Act of 1995 (Pub. L. 104-113) requires that Federal Agencies use technical standards that are developed or adopted by voluntary consensus standards bodies unless using such a standard is inconsistent with applicable law or otherwise impractical. This action does not constitute the establishment of a standard for which the use of a voluntary consensus standard would be applicable.

The NRC has determined that this final rule is the type of action described in categorical exclusion 10 CFR 51.22(c)(1). Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.

This final rule decreases the information collection burden on licensees to update, clarify, and correct several provisions. The public burden for this information collection is estimated to be a reduction of 6 hours, which is insignificant. Because the burden for this information collection is insignificant, Office of Management and Budget (OMB) approval of the final rule is not required. Existing requirements were approved by the Office of Management and Budget, approval number 3150-0036.

The NRC is amending its regulations that govern the export and import of nuclear equipment and material. In addition to updating, clarifying, and correcting several provisions, the final rule allows Category 1 and 2 quantities of material to be imported under a general license.

The NRC may not conduct or sponsor, and a person is not required to respond to, a request for information or an information collection requirement unless the requesting document displays a currently valid OMB control number.

A regulatory analysis has not been prepared for this regulation. The NRC is amending its regulations at 10 CFR part 110 to update, clarify, and correct several provisions improving NRC's regulatory framework for the export and import of nuclear equipment, material, and radioactive waste. Most of the changes are administrative in nature and result in no changes to the information collection burden or costs to the public. In addition to updating, clarifying and correcting several provisions of 10 CFR part 110, this final rule allows imports of Category 1 and 2 quantities of material under a general license instead of a specific license. The final rule also revises the definition of “radioactive waste.” In addition, the definition of “incidental radioactive material” has been removed and aspects of it have been incorporated into the revised definition of “radioactive waste.” The changes to 10 CFR part 110 facilitate the licensing process for exports and imports of radioactive waste and improve the efficiency and consistency of licensing actions. These changes do not result in a significant increase to the information collection burden or costs to the public.

As required by the Regulatory Flexibility Act of 1980, (5 U.S.C. 605(b)), the Commission certifies that this rule does not have a significant economic impact on a substantial number of small entities. This rule affects only companies exporting or importing nuclear equipment, material, and radioactive waste to and from the United States and does not fall within the scope of the definition of “small entities” set forth in the Regulatory Flexibility Act (5 U.S.C. 601(3)), or the Size Standards established by the NRC (10 CFR 2.810).

The NRC has determined that a backfit analysis is not required for this rule because these amendments do not involve any provisions that impose backfits as defined in 10 CFR chapter I.

In accordance with the Congressional Review Act of 1996, the NRC has determined that this action is not a major rule and has verified this determination with the Office of Information and Regulatory Affairs of OMB.

The Board published a final rule in the Federal Register on June 29, 2010, (75 FR 37526) (FR Doc. 2010-14717) amending Regulation Z, which implements the Truth in Lending Act, and the staff commentary to the regulation in order to implement provisions of the Credit Card Accountability Responsibility and Disclosure Act of 2009 that go into effect on August 22, 2010. However, the citation to the authority for part 226 was inadvertently omitted from that document's amendatory instructions. This document corrects that error.

Document Availability: In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5 p.m. Eastern time) at 888 First Street, NE., Room 2A, Washington, DC 20426.

From the Commission's Home Page on the Internet, this information is available in the eLibrary. The full text of this document is available on eLibrary in PDF and MSWord format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field.

User assistance is available for eLibrary and the Commission's Web site during normal business hours from FERC's Online Support at (202) 502-6652 (toll free 1-866 208-3676) or e-mail at ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. E-mail the Public Reference Room at public.referenceroom@ferc.gov.

The Commission has concluded, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB that this rule is not a “major rule”as defined in section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C 804(2).