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20336 Federal Register / Vol. 71, No.

76 / Thursday, April 20, 2006 / Rules and Regulations

information, which can be supplied wholesome milk, and be in the public PART 1033—MILK IN THE MIDEAST
without data processing equipment or a interest; and MARKETING AREA
trained statistical staff. Thus, the (3) The Mideast order, as hereby
information collection and reporting The interim final rule amending 7
amended, regulates the handling of milk CFR part 1033 which was published at
burden is relatively small. Requiring the in the same manner as, and is applicable
same reports for all handlers does not 70 FR 56111 on September 26, 2005, is
only to persons in the respective classes adopted as a final rule without change.
significantly disadvantage any handler of industrial and commercial activity
that is smaller than the industry specified in, a marketing agreement Dated: April 17, 2006.
average. upon which a hearing has been held. Lloyd C. Day,
Prior documents in this proceeding: Administrator, Agricultural Marketing
Notice of Hearing: Issued February 14, The amendments to these orders are
2005; published February 17, 2005 (70 known to handlers. A final partial
decision containing the proposed [FR Doc. 06–3775 Filed 4–19–06; 8:45 am]
FR 8043). BILLING CODE 3410–02–P
Amendment to Public Hearing on amendments to these orders was issued
Proposed Rulemaking: Issued March 1, on January 17, 2006. An interim final
2005; published March 3, 2005 (70 FR rule adopting these pooling standards
on an interim basis was issued on NUCLEAR REGULATORY
Tentative Partial Decision: Issued July September 20, 2005. COMMISSION
21, 2005; published July 27, 2005 (70 FR The changes that result from these 10 CFR Part 110
43335). amendments will not require extensive
Interim Final Rule: Issued September preparation or substantial alteration in RIN 3150–AH88
20, 2005; published September 26, 2005 the method of operation for handlers. In
(70 FR 56111). view of the foregoing, it is hereby found Implementation of the Nuclear Export
Final Partial Decision: Issued January and determined that good cause exists and Import Provisions of the Energy
17, 2006; published January 23, 2006 for making these order amendments Policy Act of 2005
(71 FR 3435). effective May 1, 2006. It would be AGENCY: Nuclear Regulatory
Findings and Determinations contrary to the public interest to delay Commission
the effective date of these amendments ACTION: Final rule.
The findings and determinations for 30 days after their publication in the
hereinafter set forth supplement those Federal Register. (Sec. 553(d), SUMMARY: The Nuclear Regulatory
that were made when the Mideast order Administrative Procedure Act, 5 U.S.C. Commission (NRC) is amending its
was first issued and when it was 551–559.) regulations that govern the export and
amended. The previous findings and import of nuclear equipment and
determinations are hereby ratified and (b) Determinations. It is hereby
determined that: material to implement provisions of the
confirmed, except where they may Energy Policy Act of 2005 signed into
conflict with those set forth herein. (1) The refusal or failure of handlers law on August 8, 2005. This amendment
The following findings are hereby (excluding cooperative associations will facilitate exports to specified
made with respect to the Mideast order: specified in Sec. 8c(9) of the Act) of countries of high-enriched uranium for
(a) Findings upon the basis of the more than 50 percent of the milk that is medical isotope production in reactors
hearing record. Pursuant to the marketed within the specified marketing that are either utilizing low-enriched
provisions of the Agricultural Marketing area to sign a proposed marketing uranium (LEU) fuel or have agreed to
Agreement Act of 1937, as amended (7 agreement tends to prevent the convert to the use of LEU fuel. In
U.S.C. 601–674), and the applicable effectuation of the declared policy of the addition, this final rule revises the
rules of practice and procedure Act; definition of byproduct material to
governing the formulation of marketing (2) The issuance of the order include discrete sources of radium-226,
agreements and marketing orders (7 CFR amending the Mideast order is the only accelerator-produced radioactive
part 900), a public hearing was held in practical means pursuant to the material, and discrete sources of
regard to certain proposed amendments declared policy of the Act of advancing naturally occurring radioactive material.
to the tentative marketing agreement the interests of producers as defined in Finally, the rule will require specific
and to the order regulating the handling the order as hereby amended; licenses for exports and imports of
of milk in the Mideast marketing area. radium-226 that meet the threshold
Upon the basis of the evidence (3) The issuance of the order
amending the Mideast order is favored values of the International Atomic
introduced at such hearing and the Energy Agency’s Code of Conduct on
record thereof it is found that: by at least two-thirds of the producers
who were engaged in the production of the Safety and Security of Radioactive
(1) The Mideast order, as hereby
milk for sale in the marketing area. Sources.
amended, and all of the terms and
conditions thereof, will tend to List of Subjects in 7 CFR Part 1033 DATES: This final rule will become
effectuate the declared policy of the Act; effective August 7, 2006.
(2) The parity prices of milk, as Milk marketing orders. ADDRESSES: Copies of the final rule and
determined pursuant to section 2 of the Order Relative to Handling related documents may be viewed
Act, are not reasonable in view of the electronically on the public computers
price of feed, available supplies of feed, It is therefore ordered, that on and located at the NRC’s Public Document
and other economic conditions which after the effective date hereof, the Room (PDR), located at One White Flint
affect market supply and demand for handling of milk in the Mideast North, 11555 Rockville Pike, Public File
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milk in the marketing area, and the marketing area shall be in conformity to Area O1F21, Rockville, Maryland. These
minimum prices specified in the order, and in compliance with the terms and documents are also available
as hereby amended, are such prices as conditions of the order, as amended, electronically at the NRC’s Public
will reflect the aforesaid factors, insure and as hereby further amended, as Electronic Reading Room on the Internet
a sufficient quantity of pure and follows: at

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Federal Register / Vol. 71, No. 76 / Thursday, April 20, 2006 / Rules and Regulations 20337

adams.html. From this site, the public determine that the HEU will be 651(e) of the EPAct amended the
can gain entry into the NRC’s irradiated in a reactor in a Recipient definition of byproduct material in
Agencywide Document Access and Country that uses an alternative nuclear section 11e. of the AEA to include
Management System (ADAMS), which reactor fuel, e.g., LEU, or is the subject discrete sources of radium-226.
provides text and image files of NRC’s of an agreement with the U.S. to convert Consistent with the notice provided in
public documents. For further to an alternative nuclear fuel when that the July 2005 rule and the authority
information contact the PDR reference fuel can be used in the reactor. conferred upon the Commission by
staff at 1 (800) 387–4209, (301) 415– Section 630 suspends for the Congress in section 651(e) of the EPAct,
4737 or by e-mail to the Recipient Countries (until the Secretary this rule amends Appendix P to include
final rule and related documents are of Energy makes certain findings) the Category 1 and Category 2 quantities of
also available on the NRC’s rulemaking portions of section 134 of the AEA that discrete sources of radium-226.
Web site at required the Commission to make Section 651(e) of the EPAct amends
Address questions about our rulemaking certain findings with respect to the use section 11e. of the AEA to place
Web site to Carol Gallagher (301) 415– of LEU targets to produce medical accelerator-produced material, discrete
5905; e-mail isotopes before issuing an export license sources of radium-226, and certain
for HEU for medical isotope production. discrete sources of naturally-occurring
This final rule amends § 110.42(a)(9) radioactive material, other than source
Brooke G. Smith, International Policy
to reflect the revised export criteria with material, under NRC regulatory
Analyst, Office of International
regard to export applications to
Programs, U.S. Nuclear Regulatory authority if produced, extracted, or
Recipient Countries for medical isotope
Commission, Washington, DC 20555– converted for use in commercial,
production. Although the implementing
0001, telephone (301) 415–2347, e-mail medical, or research activities. This rule
regulations promulgated will not take amends Appendix L to part 110,
effect until August 7, 2006, NRC export
SUPPLEMENTARY INFORMATION: ‘‘Illustrative List of Byproduct Materials
licensing decisions have been governed
under NRC Export/Import Licensing
I. Summary and Background by section 134 of the AEA, as amended
Authority,’’ to include discrete sources
by section 630 of the EPAct, since
The purpose of this final rule is to of radium-226 and accelerator-produced
August 8, 2005. The NRC already
amend the Commission’s regulations at radioactive material. Prior to the
evaluates the adequacy of the proposed
10 CFR part 110, ‘‘Export and Import of physical protection measures under enactment of the EPAct, the Department
Nuclear Equipment and Material,’’ to § 110.42(a)(3) when it evaluates of Commerce (DOC) had jurisdiction
implement sections 630, 651(d), and individual export license applications, over the export of radium-226. As
651(e) of the energy Policy Act of 2005 and has the authority to impose provided by the EPAct, discrete sources
(EPAct), which was signed into law on additional requirements in the license of radium-226 will fall under NRC’s
August 8, 2005. as the Commission deems necessary. jurisdiction; however, jurisdiction over
Section 630, ‘‘Medical Isotope Therefore, no rule changes are necessary the export of non-discrete sources of
Production,’’ of the EPAct, amended to implement the statutory provision. radium-226 will remain in DOC’s
section 134 of the Atomic Energy Act of Section 651(d), ‘‘Radiation Source jurisdiction. The Commission intends to
1954, as amended (AEA), to facilitate Protection,’’ of the EPAct amended the define the term ‘‘discrete source’’ in a
the timely export to a ‘‘Recipient AEA by imposing new requirements separate rulemaking.
Country’’ of high-enriched uranium pertaining to the export or import of Waiver of Notice and Comment
(HEU) for medical isotope production in Category 1 or Category 2 radiation Requirement
reactors that are either utilizing low- sources as defined by the International
enriched uranium (LEU) fuel or have Atomic Energy Agency (IAEA) Code of This rule revises the Commission’s
agreed to convert to the use of LEU fuel. Conduct on the Safety and Security of regulations solely to incorporate
A ‘‘Recipient Country’’ is defined in Radioactive Sources (Code of Conduct) provisions pertaining to the export and
section 630 as Canada, Belgium, France, (and any other material that poses a import licensing included in the EPAct.
Germany, and the Netherlands. The threat, as determined by the This rule tracks statutory provisions and
EPAct also requires the Commission to Commission, other than spent nuclear the drafting of it did not involve the
review and impose, via license fuel and special nuclear materials). The exercise of discretionary decision-
conditions or other appropriate means, Code of Conduct includes sixteen making. Good cause exists under 5
physical protection requirements that categories of byproduct material U.S.C. 553(b)(3)(B) to publish this final
are applicable to the transportation and sources, including radium-226. On July rule without soliciting public comment
storage of HEU for medical isotope 1, 2005 (70 FR 37985), the Commission because public comment under these
production or control of residual issued final regulations amending part circumstances would serve no useful
material after irradiation and extraction 110 that together with other existing purpose and therefore, is unnecessary
of medical isotopes. regulations satisfy the requirements of and contrary to the public interest.
Specifically, before issuing licenses section 651(d) for the export and import Effective Date of Rule and Expiration of
authorizing the export of HEU in the of radioactive sources. However, at the Time-Limited Waiver
form of fuel or targets for the production time the July 2005 rule was issued, the
of medical isotopes to Canada, Belgium, Commission did not have authority to The effective date of this rule, August
France, Germany, and the Netherlands, regulate radium-226; therefore, radium- 7, 2006, coincides with the expiration of
the Commission must find that the 226 was not listed in Appendix P to part a time-limited waiver pertaining to NRC
Recipient Country has provided the 110 or covered by the scope for the July regulation of the import and export of
United States with written assurances 2005 rule. The Commission provided the new categories of byproduct
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that any intermediate consignees and notice that radium-226 would be added material added to AEA section 11e. by
the ultimate consignee specified in the to Appendix P to part 110, consistent the EPAct. See Energy Policy Act of
export application are required to use with the Code of Conduct, if Congress 2005 Requirements; Treatment of
the HEU solely to produce medical conferred upon the Commission Accelerator-Produced and other
isotopes. Further, the Commission must jurisdiction over radium-226. Section Radioactive Material as Byproduct

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20338 Federal Register / Vol. 71, No. 76 / Thursday, April 20, 2006 / Rules and Regulations

Material; Waiver, 70 FR 51581 (August Appendix P to Part 110—Category 1 and displays a currently valid OMB control
31, 2005). 2 Radioactive Material number.
The NRC has determined that this Table 1.—Import and Export Threshold Regulatory Analysis
rule will pose no unreasonable risk to Limits
the public health and safety or the The EPAct, which was signed into
The list of category 1 and 2 law on August 8, 2005, amended the
common defense and security. radioactive material in Appendix P is definition of byproduct material in the
II. Section by Section Analysis of amended to add radium-226 and the Atomic Energy Act of 1954, as amended
Substantive Changes corresponding threshold limits for to include discrete sources of radium-
Category 1 and 2 quantities consistent 226 and conferred regulatory authority
Subpart A—General Provisions with the values in Table 1 of the IAEA of it to the NRC. Previously, radium-226
Code of Conduct. A specific license is was under the jurisdiction of the U.S.
Section 110.2. The definition of required for the import or export of
‘‘byproduct material’’ has been revised Department of Commerce. The NRC is
discrete sources of radium-226 meeting amending its regulations at 10 CFR part
to be consistent with section 651(e)(1) of the threshold quantities listed in Table
the EPAct which amended the 110 to add radium-226 to the list of
1 of Appendix P. A footnote is added to radioactive material in Appendix P to
definition of byproduct material in the list in Appendix P to indicate that part 110. Shipments of radium-226 at or
section 11e. of the AEA to place the NRC has import and export above the Category 2 level will require
accelerator-produced material, discrete authority over discrete sources of a specific license. This change to part
sources of radium-226, and certain radium-226. 110 fulfills the mandate from Congress
discrete sources of naturally occurring in section 651(d) and (e) of the EPAct
Voluntary Consensus Standards
radioactive material, other than source and with the IAEA Code of Conduct.
material, under NRC regulatory The National Technology Transfer
Additionally, to implement section 630,
authority if they are produced, and Advancement Act of 1995 (Pub. L.
‘‘Medical Isotope Production,’’ of the
extracted, or converted for use in 104–113). requires that Federal
EPAct, this final rule amends 10 CFR
commercial, medical, or research Agencies use technical standards that
110.42, ‘‘Export licensing criteria.’’
activities. are developed or adopted by voluntary
There is no alternative to amending the
consensus standards bodies unless
The terms ‘‘medical isotope,’’ regulations at 10 CFR part 110 to reflect
using such a standard is inconsistent
‘‘radiopharmaceutical,’’ and ‘‘Recipient changes in law. This final rule is
with applicable law or otherwise
Country’’ have been added to this expected to have an insignificant
impractical. This final rule does not
section consistent with the section 630 increase in the information collection
constitute the establishment of a
of the EPAct which amended section burden and cost to the public for
standard for which the use of a
134 of the AEA. applications to export or import radium-
voluntary consensus standard would be
226 at the quantities listed in Appendix
Subpart D—Review of License applicable.
P to part 110.
Applications Environmental Impact: Categorical
Backfit Analysis
Section 110.42. A new paragraph
The NRC has determined that this The NRC has determined that a
(a)(9) is amended to incorporate the backfit analysis is not required for this
requirements set forth in section 630 of final rule is type of action described in
categorical exclusion 10 CFR rule because these amendments do not
the EPAct regarding medical isotope include any provisions that would
51.22(c)(1). Therefore, neither an
production. impose backfits as defined in 10 CFR
environmental impact statement nor an
Appendix L to Part 110—Illustrative environmental assessment has been Chapter I.
List of Byproduct Materials Under NRC prepared for this final rule. Congressional Review Act
Export/Import Licensing Authority. The
list of byproduct material in Appendix Paperwork Reduction Act Statement Under the Congressional Review Act
L is amended to add radium-226. Under This final rule implements the of 1996, the NRC has determined that
the EPAct, the definition of byproduct provisions of the Energy Policy Act of this action is not a major rule and has
material was expanded to include 2005, sections 630, 651(d), and 651(e). verified this determination with the
discrete sources of radium-226. The The final rule does not impact the Office of Information and Regulatory
import or export of discrete sources of information collection burden for 10 Affairs of OMB.
radium-226 that are below the threshold CFR part 110 licensees. Any burden for
licensing actions would be against NRC List of Subjects in 10 CFR Part 110
limits for radium-226 listed in
Appendix P to part 110 may be Form 7 (3150–0027). However, few, if Administrative practice and
accomplished through a general license any, licensing actions are expected to be procedure, Classified information,
submitted. Because the burden for this Criminal penalties, Export, Import,
set forth in 10 CFR 110.23. In addition,
information collection is insignificant, Intergovernmental relations, Nuclear
a footnote is added to Appendix L to
Office of Management and Budget materials, Nuclear power plants and
indicate that the NRC has import and (OMB) clearance is not required.
export authority over any accelerator- reactors, Reporting and recordkeeping
Existing requirements were approved by requirements, Scientific equipment.
produced material that was produced, the OMB, approval number 3150–0036.
extracted or converted for use for a ■ For the reasons set out in the premble
commerical medical, or research Public Protection Notification and under the authority of the Atomic
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activity. A second footnote is added to The NRC may not conduct or sponsor, Energy Act of 1954, as amended; the
Appendix L to indicate that NRC has and a person is not required to respond Energy Reorganization Act of 1974, as
import and export authority or discrete to, a request for information or any amended; and 5 U.S.C. 552 and 553; the
sources of radium-226. information collection requirement NRC is adopting the following
unless the requesting document amendments to 10 CFR part 110.

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Federal Register / Vol. 71, No. 76 / Thursday, April 20, 2006 / Rules and Regulations 20339

PART 110—EXPORT AND IMPORT OF commercial, medical, or research fuel or target can be used in that reactor,
NUCLEAR EQUIPMENT AND activity; and it will use that alternative fuel or target
MATERIAL (4) Any discrete source of naturally in lieu of highly-enriched uranium; and
occurring radioactive material, other (C) The United States Government is
■ 1. The authority citation for part 110 than source material, that— actively developing an alternative
is revised to read as follows: (i) The Commission, in consultation nuclear reactor fuel or target that can be
Authority: Secs. 51, 53, 54, 57, 63, 64, 65, with the Administrator of the used in that reactor.
81, 82, 103, 104, 109, 111, 126, 127, 128, 129, Environmental Protection Agency, the (ii) With regard to a Recipient
134, 161, 170H., 181, 182, 187, 189, 68 Stat. Secretary of Energy, the Secretary of Country, the Commission may issue a
929, 930, 931, 932, 933, 936, 937, 948, 953, Homeland Security, and the head of any
954, 955, 956, as amended (42 U.S.C. 2071, license authorizing the export of high-
other appropriate Federal agency, enriched uranium for medical isotope
2073, 2074, 2077, 2092–2095, 2111, 2112,
2133, 2134, 2139, 2139a, 2141, 2154–2158,
determines would pose a threat similar production, including shipment to and
2160d., 2201, 2210h., 2231–2233, 2237, to the threat posed by a discrete source use at intermediate and ultimate
2239); sec. 201, 88 Stat. 1242, as amended (42 of radium-226 to the public health and consignees, if the Commission
U.S.C. 5841; sec. 5, Pub. L. 101–575, 104 Stat. safety or the common defense and determines that:
2835 (42 U.S.C. 2243); sec. 1704, 112 Stat. security; and (A) The Recipient Country has
2750 (44 U.S.C. 3504 note). (ii) Before, on, or after August 8, 2005 supplied an assurance letter to the
Sections 110.1(b)(2) and 110.1(b)(3) also is extracted or converted after extraction United States Government in
issued under Pub. L. 96–92, 93 Stat. 710 (22 for use in a commercial, medical, or connection with the consideration by
U.S.C. 2403). Section 110.11 also issued research activity.
under sec. 122, 68 Stat. 939 (42 U.S.C. 2152) the Commission of the export license
and secs. 54c and 57d, 88 Stat. 473, 475 (42
* * * * * application has informed the United
U.S.C. 2074). Section 110.27 also issued Medical isotope, for the purposes of States Government that any
under sec. 309(a), Pub. L. 99–440. Section § 110.42(a)(10), includes Molybdenum intermediate consignees and the
110.50(b)(3) also issued under sec. 123, 92 99, Iodine 131, Xenon 133, and other ultimate consignee specified in the
Stat. 142 (42 U.S.C. 2153). Section 110.51 radioactive materials used to produce a export license application are required
also issued under sec. 184, 68 Stat. 954, as radiopharmaceutical for diagnostic, to use the high-enriched uranium solely
amended (42 U.S.C. 2234). Section 110.52 therapeutic procedures or for research for the production of medical isotopes;
also issued under sec. 186, 68 Stat. 955 (42 and development and
U.S.C. 2236). Sections 110.80–110.113 also
* * * * * (B) The high-enriched uranium will
issued under 5 U.S.C. 552, 554. Sections
110.30–110.135 also issued under 5 U.S.C. Radiopharmaceutical, for the be irradiated only in a reactor in the
553. Sections 110.2 and 110.42(a)(9) also purposes of § 110.42(a)(10), means a Recipient Country that—
issued under sec. 903, Pub. L. 102–496 (42 radioactive isotope that contains (1) Uses an alternative nuclear fuel; or
U.S.C. 2151 et seq.). byproduct material combined with (2) Is the subject of an agreement with
chemical or biological material and is the United States Government to
■ 2. In § 110.2, the definition of designed to accumulate temporarily in a
Byproduct material is revised, and convert to an alternative nuclear reactor
part of the body for therapeutic fuel when alternative nuclear reactor
definitions for Medical isotope, purposes or for enabling the production
Radiopharmaceutical, and Recipient fuel can be used in the reactor.
of a useful image for use in a diagnosis
Country are added in alphabetical order * * * * *
of a medical condition.
to read as follows: ■ 4. Appendix L to part 110 is amended
Recipient Country, for the purposes of
§ 110.42(a)(10), means Canada, Belgium, by adding new footnote a to the title of
§ 110.2 Definitions. Appendix L, by amending the list of
France, Germany, and the Netherlands.
* * * * * byproduct material by adding ‘‘Radium-
Byproduct material means * * * * * 226 (Ra 226)’’ in alphabetical order, and
(1) Any radioactive material (except ■ 3. In § 110.42, paragraph (a)(9)(i) is by adding new footnote b to read as
special nuclear material) yielded in, or revised, paragraph (a)(9)(ii) is follows:
made radioactive by, exposure to the redesignated as paragraph (a)(9)(iii), and
radiation incident to the process of new paragraph (a)(9)(ii) is added to read Appendix L to Part 110—Illustrative
producing or utilizing special nuclear as follows: List of Byproduct Materials Under NRC
material; Export/Import Licensing Authority a
(2) The tailings or wastes produced by § 110.42 Export licensing criteria.
* * * * *
the extraction or concentration of (a) * * * Radium-226 (Ra-226) b
uranium or thorium from ore (see 10 (9)(i) Except as provided in paragraph
(a)(9)(ii) of this section, exports of high- * * * * *
CFR 20.1003);
(3)(i) Any discrete source of radium- enriched uranium to be used as a fuel ■ 5. Appendix P to part 110 is amended
226 that is produced, extracted, or or target in a nuclear research or test by adding ‘‘Radium-226’’ in alphabetical
converted after extraction, before, on, or reactor, the Commission determines order to Table 1. and new footnote a to
after August 8, 2005, for use for a that: read as follows:
commercial, medical, or research (A) There is no alternative nuclear Appendix P to Part 110—High Risk
activity; or reactor fuel or tart enriched to less than Radioactive Material
(ii) Any material that has been made 20 percent in the isotope U–235 that can
radioactive by use of a particle be used in that reactor;
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a Any accelerator-produced material produced,

accelerator and is produced, extracted, (B) The proposed recipient of the extracted, or converted for use for a commercial,
or converted after extraction, before, on, uranium has provided assurances that, medical, or research activity.
or after August 8, 2005 for use for a whenever an alternative nuclear reactor b Discrete sources of radium-226 (Ra-226).

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20340 Federal Register / Vol. 71, No. 76 / Thursday, April 20, 2006 / Rules and Regulations


Category 1 Category 2
Radioactive material Terabequerels Curies Terabequerels Curies
(TBq) (Ci) (TBq) (Ci)

* * * * * * *
Radium-226 a .................................................................................................... 40 1,100 0.4 11

* * * * * * *
a Discrete sources of radium-226.

Dated at Rockville, Maryland, this 4th day that vigorous enforcement of the federal disclosure that the law requires, and
of April, 2006. securities laws is conducted completely that they deserve. Diligent reporting is
For the Nuclear Regulatory Commission. consistently with the principles of the an essential means of bringing securities
Luis A. Reyes, First Amendment’s guarantee of law violations to light and ultimately
Executive Director for Operations. freedom of the press, and specifically to helps to deter illegal conduct. In this
[FR Doc. 06–3664 Filed 4–17–06; 8:45 am] avoid the issuance of subpoenas to Policy Statement the Commission sets
members of the media that might impair forth guidelines for the agency’s
the news gathering and reporting professional staff to ensure that vigorous
functions. enforcement of the federal securities
laws is conducted completely
SECURITIES AND EXCHANGE Regulatory Requirements
consistently with the principles of the
COMMISSION The provisions of the Administrative First Amendment’s guarantee of
Procedure Act (‘‘APA’’) regarding notice freedom of the press, and specifically to
17 CFR Part 202
of proposed rulemaking, opportunities avoid the issuance of subpoenas to
[Release No. 34–53638] for public comment, and prior members of the media that might impair
publication are not applicable to general the news gathering and reporting
RIN 3235–AJ55
statements of policy, such as this one.1 functions. These guidelines shall be
Policy Statement Concerning Similarly, the provisions of the adhered to by all members of the staff
Subpoenas to Members of the News Regulatory Flexibility Act,2 which apply in all cases:
Media only when notice and comment are (a) In determining whether to issue a
required by the APA or another statute, subpoena to a member of the news
AGENCY: Securities and Exchange are not applicable. media, the approach in every case must
Commission. be to strike the proper balance between
List of Subjects in 17 CFR Part 202
ACTION: Final rule; policy statement. the public’s interest in the free
Administrative practice and dissemination of ideas and information
SUMMARY: The Securities and Exchange procedure. and the public’s interest in effective
Commission is issuing a policy Text of Amendment enforcement of the federal securities
statement concerning the issuance of laws.
subpoenas to members of the media. ■ In accordance with the foregoing, the (b) When the staff investigating a
This policy statement sets forth Securities and Exchange Commission matter determines that a member of the
guidelines for the agency’s professional amends 17 CFR chapter II as follows: news media may have information
staff to ensure that vigorous relevant to the investigation, the staff
enforcement of the Federal securities PART 202—INFORMAL AND OTHER should:
laws is conducted completely PROCEDURES (1) Determine whether the
consistently with the principles of the ■ 1. The authority citation for part 202 information might be obtainable from
First Amendment’s guarantee of continues to read, in part, as follows: alternative non-media sources.
freedom of the press, and specifically to (2) Make all reasonable efforts to
Authority: 15 U.S.C. 77s, 77t, 78d–1, 78u,
avoid the issuance of subpoenas to 78w, 78ll(d), 79r, 79t, 77sss, 77uuu, 80a–37,
obtain that information from those
members of the media that might impair 80a–41, 80b–9, and 80b–11, unless otherwise alternative sources. Whether all
the news gathering and reporting noted. reasonable efforts have been made will
functions. * * * * * depend on the particular circumstances
DATES: Effective Date: April 12, 2006. of the investigation, including whether
■ 2. Add § 202.10 to read as follows:
there is an immediate need to preserve
FOR FURTHER INFORMATION CONTACT: Joan assets or protect investors from an
§ 202.10 Policy statement of the Securities
McKown (202–551–4933), Office of the and Exchange Commission concerning ongoing fraud.
Chief Counsel, Division of Enforcement, subpoenas to members of the news media. (3) Determine whether the
or Richard Levine (202–551–5468), Freedom of the press is of vital information is essential to successful
Office of General Counsel. importance to the mission of the completion of the investigation.
SUPPLEMENTARY INFORMATION: The Securities and Exchange Commission. (c) If the information cannot
Securities and Exchange Commission is reasonably be obtained from alternative
hsrobinson on PROD1PC61 with RULES

Effective journalism complements the

issuing a policy statement concerning Commission’s efforts to ensure that sources and the information is essential
the issuance of subpoenas to members investors receive the full and fair to the investigation, then the staff, after
of the media. In this policy statement seeking approval from the responsible
the Commission sets forth guidelines for 15 U.S.C. 553. Regional Director, District
the agency’s professional staff to ensure 25 U.S.C. 601–602. Administrator, or Associate Director,

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