[Federal Register Volume 64, Number 127 (Friday, July 2, 1999)]
[Proposed Rules]
[Pages 35959-35963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16800]
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DEPARTMENT OF ENERGY
10 CFR Part 810
RIN No. 1992-AA24
Assistance to Foreign Atomic Energy Activities
AGENCY: Office of Arms Control and Nonproliferation, Department of
Energy.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Energy (DOE) proposes to amend its
regulations concerning unclassified assistance to foreign atomic energy
activities. These amendments are designed to: make explicit DOE's
export control jurisdiction over transfers of technology and services
to foreign activities relating to production of special nuclear
material (SNM) by means of accelerator-driven subcritical assembly
systems (particle accelerators operating in conjunction with
subcritical assemblies); revise the list of countries for which all
assistance controlled by these regulations requires specific
authorization; and substitute current addressees for submitting reports
and requests. DOE is soliciting public comment on the proposed
amendments within 60 days. Following consideration of submitted
comments, DOE intends to publish a final rule on the amendments as
promptly as possible.
DATES: Comments are due on or before August 31, 1999.
ADDRESSES: Written comments (3 copies) should be sent to: U.S.
Department of Energy, Office of Arms Control and Nonproliferation,
Nuclear Transfer and Supplier Policy Division, NN-43, NOPR, 1000
Independence Ave. S.W., Washington, DC 20585. Comments
[[Page 35960]]
should be identified on the outside of the envelope and on the
documents themselves with the designation ``Accelerators--Notice of
Proposed Rulemaking,'' FAX comments will not be accepted. The
administrative record on file will be located in the Department's
Freedom of Information Reading Room, Room 1E-190, 1000 Independence
Ave. S.W., Washington, DC 20585.
FOR FURTHER INFORMATION CONTACT: Mr. Zander Hollander, Nuclear Transfer
and Supplier Policy Division, NN-43, Office of Arms Control and
Nonproliferation, U.S. Department of Energy, 1000 Independence Ave.
S.W., Washington, DC 20585: Telephone (202) 586-2125; or Mr. Robert
Newton, Office of General Counsel, GC-53, U.S. Department of Energy,
1000 Independence Ave. S.W., Washington, DC 20585: Telephone (202) 586-
0806.
SUPPLEMENTARY INFORMATION:
1. Background
10 CFR Part 810 implements section 57b(2) of the Atomic Energy Act
of 1954, as amended by section 302 of the Nuclear Non-Proliferation Act
of 1978 (NNPA) (42 U.S.C. 2077). These sections require that U.S.
persons who engage directly or indirectly in the production of SNM
outside the United States be authorized to do so by the Secretary of
Energy. Recent technological progress in accelerator-driven subcritical
assembly systems has led to questions concerning the applicability of
the Part 810 regulations to such activities. Most accelerator activity
until now has been in fields of basic scientific research and
development, such as detecting and identifying subatomic particles to
better understand the structure of matter and the composition of the
universe. The accelerator scientific community has been almost entirely
an open one of free exchange of ideas and data, unrestricted
publication of findings, and broad cooperation among scientists to
build more powerful accelerators for more advanced experimentation. DOE
scientists have been in the forefront of these activities and
undoubtedly will remain so. DOE has no intention of limiting such
scientific efforts, either by export control measures or otherwise.
Yet, in recent years scientists have begun to develop accelerator-
driven subcritical assembly systems that could be adapted to production
of SNM. For example, DOE currently is pursuing accelerator production
of tritium, which, while sometimes used in nuclear weapons, is not
defined by the Atomic Energy Act as SNM. (The export of facilities,
plants, equipment, and technology for production of tritium falls under
the licensing authority of the Department of Commerce.) However,
studies have shown that some accelerator-driven subcritical assembly
systems are capable of producing significant quantities of plutonium or
uranium-233, both of which are SNM as defined by the Act. Further,
research and development is under way on transmutation of nuclear waste
(ATW) by means of accelerator-driven subcritical assembly systems,
which also may involve the processing of SNM. For these reasons, DOE
takes the position that Part 810 applies to accelerator-driven
subcritical assembly system technology as it does to other technologies
for production of SNM, such as enrichment, reprocessing, and nuclear
reactors. However, DOE intends Part 810 to apply to accelerator-driven
subcritical assembly system activities only when the purpose is SNM
production or when the activities would result in significant SNM
production. While some accelerators devoted to basic scientific
research and development activities may, technically, also be capable
of configuration to produce SNM, DOE does not intend to exert export
control authority on the basis of such capability.
In explicitly asserting its part 810 jurisdiction over accelerator-
driven subcritical assembly system technology, DOE is guided by the
following policy: specific authorization by the Secretary is required
for the export to any country of technology or services for production
of SNM by means of an accelerator-driven subcritical assembly system,
or when a U.S. provider of assistance knows or has reason to know that
an accelerator-driven subcritical assembly system will be used for the
production or processing of SNM. When not publicly announced, such
knowledge may come to the attention of the U.S. provider of assistance
through contact with participants in such a project or may be brought
to the provider's attention by the U.S. Government or another party.
Assistance to components of the system also is considered within the
scope of these regulations when the system is used to or is intended to
produce SNM. In explicitly asserting jurisdiction over accelerator-
driven subcritical assemblies, DOE believes specific authorization
should be required only when the subcritical assembly is capable of
continuous operation above five megawatts thermal, for those below this
capability do not pose significant proliferation concern. This is the
same threshold of control DOE applies to exports of assistance to
research and test reactors.
DOE part 810 jurisdiction applies to assistance to foreign
nationals, institutions, governments, and corporate or other entities
when the objective is to produce SNM (plutonium or uranium-233) with an
accelerator-driven subcritical assembly system, whether the assistance
is given inside or outside the United States. However, DOE part 810
jurisdiction over assistance should not be construed as inhibiting a
U.S. provider of assistance from participating in multinational or
other non-U.S. accelerator activities when the intent is not to produce
SNM, but rather for scientific, medical, or other non-SNM objectives.
When a U.S. provider has no reason to believe that accelerator
production of SNM is the objective, the U.S. provider needs no part 810
authorization. The same is true for U.S. hosts of foreign participation
in scientific or other non-SNM accelerator activities in the United
States. Therefore, unless intending to pursue accelerator-driven
subcritical assembly system technologies for the production of SNM
outside the United States or to allow foreign scientists to participate
in such activities in the United States, members of the U.S.
accelerator community--individual scientists, universities, commercial
firms, research and development institutions, and other enterprises--
will not require part 810 authorization.
The section 810.8 list of countries is being revised to include all
non-nuclear-weapon states that do not have full-scope safeguards
agreements with the IAEA and to reflect changes in world conditions
since the last time the list was published. Since existence of an IAEA
full-scope safeguards agreement is an important factor in making part
810 determinations, DOE believes applicants should be aware of which
countries do not have such agreements.
2. Proposed Regulatory Changes
The following changes are proposed to be made to Part 810:
A. Section 810.3. Definitions. Definitions for ``non-nuclear-weapon
state,'' ``accelerator-driven subcritical assembly system,''
``production accelerator,'' and ``subcritical assembly'' would be
added.
B. Section 810.4. Communications. A new addressee for
communications concerning these regulations would be given.
C. Section 810.5. Interpretations. The title of the DOE office
providing advice would be changed.
D. Section 810.7. Generally authorized activities. Assistance to
[[Page 35961]]
accelerator-driven subcritical assembly systems'' and certain research
and test reactors would be added to the exclusions from this general
authorization.
E. Section 810.8. Activities requiring specific authorization.
Specific authorization would be required for assistance relating to
accelerator-driven subcritical assembly systems' capable of continuous
operation above five megawatts thermal. In addition, the list of
countries in this section would be revised and countries lacking full-
scope safeguards agreements noted.
F. Section 810.13. Reports. The title of the office to which
reports should be sent would be changed.
G. Section 810.16. Effective date and savings clause. The effective
date would be changed but the savings clause would continue to state
that the revision will not affect previously granted specific
authorizations or generally authorized activities for which the
contracts, purchase orders, or licensing arrangements are already in
effect on the date of publication of the final rule; also, that persons
engaging in activities generally authorized under the present
regulations but requiring specific authorization under the revision
must request such specific authorization within 90 days but may
continue their activities until DOE acts on the request.
3. Statutory Requirements
Pursuant to section 57b of the Atomic Energy Act as amended by the
NNPA, with the concurrence of the Department of State and after
consultations with the Departments of Defense and Commerce, and the
Nuclear Regulatory Commission, the Secretary of Energy has determined
that to authorize this proposed revision of 10 CFR part 810 will not be
inimical to the interests of the United States.
4. Public Comment
A. Interested persons are invited to participate in this rulemaking
by submitting three (3) copies of their comments to the Director of the
Nuclear Transfer and Supplier Policy Division at the address set forth
in the ADDRESSES section of this notice. The deadline for receipt of
comments is indicated in the DATES section of this notice. Comments
should be identified on the outside of the envelope and on the
documents themselves with the designation ``Accelerators--Notice of
Proposed Rulemaking.''
All comments received on or before the date specified in the
beginning of this notice and all other relevant information will be
considered by DOE before taking final action.
Any person submitting information which that person believes to be
confidential and which may be exempt by law from public disclosure
should submit one complete copy marked confidential, as well as three
(3) copies from which the information claimed to be confidential has
been deleted. DOE reserves the right to determine the confidential
status of the information or data and to treat it according to its
determination. This procedure is set forth in 10 CFR 1004.11.
B. Public Hearing. This notice of proposed rulemaking does not
involve any significant issues of law or fact and the rule would be
unlikely to have a substantial impact on the Nation's economy or large
numbers of individuals or businesses. Accordingly, pursuant to 42
U.S.C. 7191(c) and 5 U.S.C. 553, DOE is not scheduling a public
hearing.
5. Procedural Matters
A. Review Under Executive Order 12866
This proposed rule has been determined not to be a significant
regulatory action under Executive Order 12866, ``Regulatory Planning
and Review'' (58 FR 51735, October 4, 1993). In accordance with the
requirements of the Executive Order, this notice of proposed rulemaking
was not subject to review by the Office of Information and Regulatory
Affairs of the Office of Management and Budget.
B. Review Under the Regulatory Flexibility Act
The proposed rule has been reviewed under the Regulatory
Flexibility Act of 1980, Pub. L. 96-354 (42 U.S.C. 601-612) which
requires preparation of a regulatory flexibility analysis for any
regulation that will have a significant economic impact on a
substantial number of small entities, i.e., small businesses and small
government jurisdictions. This action would have no such impact because
the revisions only codify in the regulations existing DOE export
control jurisdiction and U.S. Government obligations. DOE accordingly
certifies that there will not be a significant economic impact on a
substantial number of small entities and that preparation of a
regulatory flexibility analysis is not warranted.
C. Review under the National Environmental Policy Act
The proposed rule has been reviewed under the National
Environmental Policy Act of 1969, Pub. L. 91-190 (42 U.S.C. 4321 et
seq.), Council on Environmental Quality Regulations (40 CFR parts 1500-
08), and the Department of Energy environmental regulations (10 CFR
part 1021) and has been determined not to constitute a major Federal
action significantly affecting the quality of the human environment.
Accordingly, no environmental impact statement is required.
D. Review Under Executive Order 12612
Executive Order 12612 (52 FR 41685, October 30, 1987) requires that
regulations be reviewed for any substantial direct effects on States,
on the relationship between the national Government and the States, or
in the distribution of power among various levels of government. If
there are sufficient substantial direct effects, the Executive Order
requires the preparation of a Federalism assessment to be used in
decisions by senior policy makers in promulgating or implementing the
regulation. The proposed rule will not have a substantial direct effect
on the traditional rights and prerogatives of States in relationship to
the Federal Government. Preparation of a Federalism assessment is
therefore unnecessary.
E. Review Under Executive Order 12988
With respect to review of existing regulations and promulgation of
new regulations, section 3(a) of Executive Order 12988, ``Civil Justice
Reform,'' (61 FR 4729, February 7, 1996), imposes on Executive agencies
the general duty to adhere to the following requirements: (1) Eliminate
drafting errors and ambiguity; (2) write regulations to minimize
litigation; and (3) provide a clear legal standard for affected conduct
rather than a general standard and promote simplification and burden
reduction. With regard to the review required by section 3(a), section
3(b) of Executive Order 12988 specifically requires that Executive
agencies make every reasonable effort to ensure that the regulation:
(1) Clearly specifies the pre-emptive effects, if any; (2) clearly
specifies any effect on existing Federal law or regulation; (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction; (4) specifies the retroactive
effect, if any; (5) adequately defines key terms; and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. Section 3(c) of
Executive Order 12988 requires Executive agencies to review regulations
in light of applicable standards in section 3(a) and section 3(b) to
determine whether they are met or it is unreasonable to meet one or
more of them. DOE has completed the
[[Page 35962]]
required review and determined that, to the extent permitted by law,
the proposed regulations meet the relevant standards of Executive Order
12988.
F. Paperwork Reduction Act
The information collections in this proposed rule are exempt from
review by the Office of Management and Budget and from public comment
for reasons of national security as provided for in Executive Orders
12035 and 12333 issued under the Paperwork Reduction Act of 1980 (44
U.S.C. 3501 et seq.).
List of Subjects in 10 CFR Part 810
Foreign relations, Nuclear energy, Reporting and recordkeeping
requirements.
Issued in Washington, D.C., June 23, 1999.
Rose Gottemoeller,
Assistant Secretary for Nonproliferation and National Security.
For reasons set forth in the preamble, Chapter III of Title 10 of
the Code of Federal Regulations is proposed to be amended as follows:
PART 810--ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES
1. The authority citation for part 810 continues to read as
follows:
Authority: Secs. 57, 127, 128, 129, 161, and 223, Atomic Energy
Act of 1954, as amended by the Nuclear Non-Proliferation Act of
1978, Pub. L. 95-242, 68 Stat. 932, 948, 950, 958, 92 Stat. 126,
136, 137, 138 (42 U.S.C. 2077, 2156, 2157, 2158, 2201, 2273); Sec.
104 of the Energy Reorganization Act of 1974, Pub. L. 93-438; Sec
301, Department of Energy Organization Act, Pub. L. 95-91.
2. Section 810.3 is amended by adding new definitions of
``accelerator-driven subcritical assembly system,'' ``non-nuclear-
weapon state,'' ``production accelerator,'' and ``subcritical
assembly,'' in alphabetical order, to read as follows:
Sec. 810.3 Definitions.
* * * * *
Accelerator-driven subcritical assembly system is a system
comprising a ``subcritical assembly'' and a ``production accelerator''
and which is designed or used for the purpose of producing or
processing special nuclear material (SNM) or which a U.S. provider of
assistance knows or has reason to know will be used for the production
or processing of SNM. In such a system, the ``production accelerator''
provides a source of neutrons used to effect SNM production in the
``subcritical assembly.''
* * * * *
Non-nuclear-weapon state is a country not recognized as a nuclear-
weapon state by the NPT (i.e., states other than the United States,
Russia, the United Kingdom, France, and China).
* * * * *
Production accelerator is a particle accelerator designed and/or
intended to be used, with a subcritical assembly, for the production or
processing of SNM or which a U.S. provider of assistance knows or has
reason to know will be used for the production or processing of SNM.
* * * * *
Subcritical assembly is an apparatus containing source material or
SNM designed or used to produce a nuclear fission chain reaction that
is not self-sustaining.
* * * * *
3. Section 810.4, paragraph (a) is revised to read as follows:
Sec. 810.4 Communications.
(a) All communications concerning the regulations in this part
should be addressed to: U.S. Department of Energy, Washington, DC
20585. Attention: Director, Nuclear Transfer and Supplier Policy
Division, NN-43, Office of Arms Control and Nonproliferation.
Telephone: (202) 586-2331.
* * * * *
4. Section 810.5, is revised to read as follows:
Sec. 810.5 Interpretations.
A person may request the advice of the Director, Nuclear Transfer
and Supplier Policy Division (NN-43) on whether a proposed activity
falls outside the scope of part 810, is generally authorized under
Sec. 810.7, or requires specific authorization under Sec. 810.8;
however, unless authorized by the Secretary of Energy in writing, no
interpretation of these regulations other than a written interpretation
by the General Counsel is binding upon the Department. When advice is
requested from the Director, Nuclear Transfer and Supplier Policy
Division, or a binding, written determination is requested from the
General Counsel, a response normally will be made within 30 days and,
if this is not feasible, an interim response will explain the delay.
5. In Sec. 810.7, paragraph (h) is revised to read as follows:
* * * * *
Sec. 810.7 Generally authorized activities.
(h) Otherwise engaging directly or indirectly in the production of
special nuclear material outside the United States in ways that:
(1) Do not involve any of the countries listed in Sec. 810.8(a);
and
(2) Do not involve production reactors, accelerator-driven
subcritical assemblies systems, enrichment, reprocessing, fabrication
of nuclear fuel containing plutonium, production of heavy water, or
research reactors, or test reactors, as described in Sec. 810.8(c) (1)
through (6).
6. Section 810.8, is revised to read as follows:
Sec. 810.8 Activities requiring specific authorization.
Unless generally authorized by Sec. 810.7, a person requires
specific authorization by the Secretary of Energy before:
(a) Engaging directly or indirectly in the production of special
nuclear material in any of the countries listed below. Countries marked
with an asterisk (*) are non-nuclear-weapon states that do not have
full-scope IAEA safeguards agreements in force.
Afghanistan
Albania
Algeria
Andorra *
Angola *
Armenia
Azerbaijan *
Bahamas *
Bahrain *
Belarus
Benin *
Botswana *
Burkina Faso *
Burma (Myanmar)
Burundi *
Cambodia *
Cameroon *
Cape Verde *
Central African Republic *
Chad *
China, People's Republic of
Colombia *
Comoros*
Congo*
Cuba*
Djibouti*
Equatorial Guinea*
Eritrea*
Gabon*
Georgia*
Guinea*
Guinea-Bissau*
Haiti*
India*
Iran
Iraq
Israel*
Kazakhstan
Kenya*
Kuwait*
Korea, People's Democratic Republic of
Kyrgyzstan*
Laos*
Liberia*
Libya
Macedonia*
Mali*
[[Page 35963]]
Marshall Islands*
Mauritania*
Micronesia*
Moldova*
Mongolia
Mozambique*
Niger*
Oman*
Pakistan*
Palau*
Panama*
Qatar*
Russia
Rwanda*
Sao Tome and Principe*
Saudi Arabia*
Seychelles*
Sierra Leone*
Somalia
Sudan
Syria
Tajikistan*
Tanzania*
Togo*
Turkmenistan*
Uganda*
Ukraine
United Arab Emirates*
Uzbekistan
Vanuatu*
Vietnam
Yemen*
(b) Providing sensitive nuclear technology for an activity in any
foreign country.
(c) Engaging in or providing assistance in any of the following
activities with respect to any foreign country.
(1) Designing production reactors, accelerator-driven subcritical
assembly systems, or facilities for the separation of isotopes of
source or special nuclear material (enrichment), chemical processing of
irradiated special nuclear material (reprocessing), fabrication of
nuclear fuel containing plutonium, or the production of heavy water;
(2) Constructing, fabricating, operating, or maintaining such
reactors, accelerator-driven subcritical assembly systems, or
facilities;
(3) Designing, constructing, fabricating, operating or maintaining
components especially designed, modified or adapted for use in such
reactors, accelerator-driven critical assembly systems, or facilities;
(4) Designing, constructing, fabricating, operating or maintaining
major critical components for use in such reactors, accelerator-driven
subcritical assembly systems, or production-scale facilities; or
(5) Designing, constructing, fabricating, operating, or maintaining
research reactors, test reactors or accelerator-driven subcritical
assembly systems' capable of continuous operation above five megawatts
thermal.
(6) Training in the activities of paragraphs (c) (1) through (5) of
this section.
7. In Sec. 810.10 paragraph (a), is revised to read as follows:
Sec. 810.10 Grant of specific authorization.
(a) Any person proposing to provide assistance for which Sec. 810.8
indicates specific authorization is required may apply for the
authorization to the U.S. Department of Energy, Washington, DC 20585,
Attention: Director, Nuclear Transfer and Supplier Policy Division, NN-
43, Office of Arms Control and Nonproliferation.
* * * * *
8. In Sec. 810.13, paragraph (g) is revised to read as follows:
Sec. 810.13 Reports.
* * * * *
(g) All reports should be sent to: U.S. Department of Energy,
Washington, DC 20585, Attention: Director, Nuclear Transfer and
Supplier Policy Division, NN-43, Office of Arms Control and
Nonproliferation.
9. Section 810.16 is revised as follows:
Sec. 810.16 Effective date and savings clause.
These regulations are effective on [insert date of publication of
final rule in the Federal Register]. Except for actions that may be
taken by DOE pursuant to Sec. 810.11, this revision does not affect the
validity or terms of any specific authorizations granted under the
previous regulations or generally authorized activities under the
previous regulations for which the contracts, purchase orders, or
licensing arrangements are already in effect. Persons engaging in
activities that were generally authorized under the previous
regulations but that require specific authorization under the revised
regulations must request specific authorization within 90 days but may
continue their activities until DOE acts on the request.
[FR Doc. 99-16800 Filed 7-1-99; 8:45 am]
BILLING CODE 6450-01-P
