[Federal Register Volume 60, Number 142 (Tuesday, July 25, 1995)]
[Proposed Rules]
[Pages 38220-38226]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-18236]
[[Page 38219]]
_______________________________________________________________________
Part VIII
Department of Energy
_______________________________________________________________________
10 CFR Part 810
Office of Arms Control and Nonproliferation; Nuclear Information Export
Policy; Determining Sensitive Nuclear Technology; Proposed Rule
Federal Register / Vol. 60, No. 142 / Tuesday, July 25, 1995 /
Proposed Rules
[[Page 38220]]
DEPARTMENT OF ENERGY
10 CFR Part 810
Office of Arms Control and Nonproliferation Nuclear Information
Export Policy; Determining Sensitive Nuclear Technology
AGENCY: Department of Energy.
ACTION: Advance notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (Department) today begins a
rulemaking proceeding to codify and, if appropriate, modify its
``Guidelines for the Designation of Sensitive Nuclear Technology.''
These guidelines have been used since 1986 to guide the Department's
staff in determining on a case-by-case basis whether information
proposed for export is ``sensitive nuclear technology'' under the
Atomic Energy Act and the Nuclear Non-Proliferation Act. The Department
has now decided to initiate this rulemaking to codify the guidelines in
order to make them easily available to interested members of the public
and to provide an opportunity for public comments.
DATES: Comments (3 copies) are due on or before August 24, 1995.
ADDRESSES: Comments must be submitted to U.S. Department of Energy,
Office of Arms Control and Nonproliferation, Export Control Division,
NN-43, SNT ANOPR, Docket No. [NN-RM-810], 1000 Independence Avenue,
SW., Washington, DC 20585. 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. SW., Washington, DC 20585.
FOR FURTHER INFORMATION CONTACT: Zander Hollander, Export Control
Operations Division, Office of Arms Control and Nonproliferation, U.S.
Department of Energy, 1000 Independence Avenue, SW., Washington, DC
20585, (202) 586-2125, or Robert Newton, Office of General Counsel,
U.S. Department of Energy, 1000 Independence Avenue, SW., Washington,
DC 20585, (202) 586-0806.
SUPPLEMENTARY INFORMATION:
I. Background
The Nuclear Non-Proliferation Act, 22 U.S.C. 3203(a)(6), describes
``sensitive nuclear technology'' (or SNT) as any information (including
information incorporated in a production or utilization facility or
important component part thereof) which is not available to the public
and which is important to the design, construction, fabrication,
operation or maintenance of a uranium enrichment or nuclear fuel
reprocessing facility or a facility for the production of heavy water,
but shall not include Restricted Data.
``Sensitive nuclear technology'' may only be exported subject to
special conditions to prevent dissemination of information which could
be exploited for nuclear weapons-related purposes. Section 305 of the
Nuclear Non-Proliferation Act, which amended the Atomic Energy Act by
adding section 127, imposes six requirements for exports of source
material, special nuclear material, production or utilization
facilities, and SNT from the United States for peaceful nuclear uses.
These requirements are:
(1) IAEA (International Atomic Energy Agency) safeguards as
required by Article III(2) of the (Treaty on the Non-Proliferation of
Nuclear Weapons) will be applied with respect to any such material or
facilities proposed to be exported, to any such material or facilities
previously exported and subject to the applicable agreement for
cooperation, and to any special nuclear material used in or produced
through the use thereof.
(2) No such material, facilities, or sensitive nuclear technology
proposed to be exported or previously exported and subject to the
applicable agreement for cooperation, and no special nuclear material
produced through the use of such materials, facilities, or sensitive
nuclear technology, will be used for any nuclear explosive device or
for research on or development of any nuclear explosive device.
(3) Adequate physical security measures will be maintained with
respect to such material or facilities proposed to be exported and to
any special nuclear material used in or produced through the use
thereof * * *.
(4) No such materials, facilities, or sensitive nuclear technology
proposed to be exported, and no special nuclear material produced
through the use of such material, will be retransferred to the
jurisdiction of any other nation or group of nations unless the prior
approval of the United States is obtained for such retransfer. In
addition to other requirements of law, the United States may approve
such retransfer only if the nation or group of nations designated to
receive such retransfer agrees that it shall be subject to the
conditions required by this section.
(5) No such material proposed to be exported and no special nuclear
material produced through the use of such material will be reprocessed,
and no irradiated fuel elements containing such material removed from a
reactor shall be altered in form or content, unless the prior approval
of the United States is obtained for such reprocessing or alteration.
(6) No such sensitive nuclear technology shall be exported unless
the foregoing conditions shall be applied to any nuclear material or
equipment which is produced or constructed under the jurisdiction of
the recipient nation or group of nations by or through the use of any
such exported sensitive nuclear technology.
42 U.S.C. 2156
In addition, section 306 of the Nuclear Non-Proliferation Act added
section 128 to the Atomic Energy Act which, subject to an exception not
relevant here, requires:
As a condition of continued United States export of source
material, special nuclear material, production or utilization
facilities, and any sensitive nuclear technology to non-nuclear-
weapon states, no such export shall be made unless IAEA safeguards
are maintained with respect to all peaceful nuclear activities in,
under the jurisdiction of, or carried out under the control of such
state at the time of the export.
42 U.S.C. 2157
It has been the Department's experience that, as a practical
matter, once information has been determined to be SNT, it has not been
exported because foreign recipients were unwilling to agree to U.S.
consent rights over nuclear activities within the recipient nation's
borders.
The Department exercises jurisdiction over the transfer of SNT by
entities other than the Department through its regulations under 10 CFR
part 810, which governs authorizations of nuclear assistance to foreign
atomic energy activities and defines SNT in the same manner as the
Nuclear Non-Proliferation Act. In determining whether to grant or deny
a request for authorization for the export of any nuclear assistance,
including SNT, the Secretary of Energy must find that the proposed
export ``will not be inimical to the interest of the United States.''
42 U.S.C. 2077 (b). The 10 CFR part 810 regulations require the
Secretary to consider several factors in making this finding, including
the recipient country's nuclear nonproliferation credentials, the
country's acceptance of international safeguards for all their nuclear
projects, the availability of comparable assistance from other sources
and ``any other factors that may bear upon the political, economic, or
security interests of the United States.'' 10 CFR 810.10 (b). In
addition, authorizations for the export of information which is not
SNT, but
[[Page 38221]]
nevertheless may be proliferation sensitive, contain the requirement
that the recipient nation guarantee that the information will not be
retransferred. While the Department itself is not subject to the part
810 regulations, its Office of Arms Control and Nonproliferation
reviews the proposed export of Department-owned information in a manner
consistent with 10 CFR part 810.
After the Nuclear Non-Proliferation Act became law, from 1979 to
1986 the Department made its case-by-case determinations without the
aid of any written guidance other than the terms of the statute, which
are for the most part undefined. In a few cases, where there was a
determination that a proposed export could involve SNT, the applicants
narrowed their requests to avoid the areas that might involve SNT.
Where the scope of work under part 810 authorizations had the potential
to involve SNT, the authorizations were specifically conditioned to
exclude such technology.
In 1986, the Department developed the guidelines for the purpose of
promoting a more uniform approach to making SNT determinations on a
case-by-case basis in light of prior decisions. They had the effect of
formalizing the Department's prior experience and turning it into
guidance for those individuals involved in the review process, thus
ensuring that the reviewers operated from a common knowledge base.
However, the guidelines are not controlling with respect to such a
decision, and the Department has the discretion to depart from the
determination suggested by the guidelines if it appears warranted in
particular cases. Specifically, the Department has not used the
guidelines as a definitive determinant of what constitutes SNT. An
applicant for an export license is always free to dispute the merits of
the Department's interpretations and policies under the law.
The Department has now decided to initiate this rulemaking to
codify the guidelines in order to make them easily available to
interested members of the public and to provide an opportunity for
public comment. This rulemaking will not affect any decisions that have
already been made. Any changes in policy the Department may adopt in
the course of this rulemaking would apply prospectively, that is to
say, with respect to SNT decisions made after the effective date of the
rule.
II. Approach to Codifying the Guidelines
Apart from some introductory narrative material, the guidelines,
which are reprinted at the end of this notice, consist of a series of
inquiries and forms for completion by the Department's staff. Most of
the provisions of the guidelines are self-explanatory. In this
rulemaking, the Department will consider whether to redraft the
guidelines in a Regulatory format and style common to most Rules in the
Code of Federal Regulations, or to propose them in the form of
narrative appendix to 10 CFR part 810, which could be done without
significant change in format and style. Whichever approach to format
and style the Department takes, the Department is eliciting public
comment on whether any changes in the content of the guidelines and the
Department's approach to SNT determinations are warranted.
III. Determining Importance
The Department anticipates that one part of the guidelines may
prove to be controversial with some members of the public. Some citizen
organizations have taken issue with the portion of the guidelines the
Department uses to aid in determining whether the information in
question is ``important to the design, construction, fabrication,
operation or maintenance of a uranium enrichment or nuclear fuel
reprocessing facility or a facility for the production of heavy
water,'' within the statutory definition of SNT. The guidelines provide
that three types of assessments are relevant to determining importance:
(1) A categorization of the information proposed to be transferred,
i.e., what type of activity or equipment is proposed for transfer; (2)
a technical evaluation of the proposed transfer, i.e., a determination
of its significance to design, construction, operation, or maintenance
of a facility covered by the statute; and (3) a judgment as to the
technical significance of the information to the proposed recipient
given the level of development of that country's nuclear program and
other case-specific considerations bearing on such things as available
intelligence regarding the proposed recipient, the proprietary value of
the information, prior treatment of similar export issues, and impact
on United States and international nuclear nonproliferation issues.
In some cases, the Department has concluded that certain kinds of
information may not be ``important'' within the meaning of the
statutory language if the proposed recipient is from a country with an
advanced nuclear program, even if the same information could be
important to a recipient with a less advanced nuclear capability. In
other words, information may be ``important'' to a facility in one
country but not to an identical facility in another country, if the
proposed recipient country did not independently possess sufficient
nuclear expertise to ``design, construct, fabricate, operate or
maintain'' the facility in the first case, but did possess such
expertise in the second case.
The Nuclear Non-Proliferation Act does not define ``important'' and
there is no controlling guidance in its legislative history. Thus, it
is the Department's view that the word ``important'' could have a wide
range of meanings in the context of the Act. The Department view in
1986 was that the most rational approach was to make this determination
as a function of all the particular relevant facts and circumstances,
including the state of indigenous nuclear technology in the recipient
country. In making these determinations on a case-by-case basis, the
Department has sought to make reasonable distinctions consistent with
the underlying purposes of the Atomic Energy Act. These purposes
include promoting as well as controlling the use of nuclear energy. 42
U.S.C. 2013. Likewise, the Nuclear Non-Proliferation Act sought to
assure other countries dependent upon the United States for nuclear
fuel and other nuclear exports that the United States would be a
``reliable trading partner,'' while at the same time it tightened
controls on those exports. The Department believes that the
interpretation reflected in the guidelines has been used to develop all
relevant information necessary for balancing these competing purposes
in a reasonable manner.
The Department also believes that the interpretation of
``important'' contained in the guidelines represents an allowable
exercise of its statutory authority. In the absence of clear,
definitive direction from Congress, DOE applied its expertise to
develop an interpretation of SNT which it believes to be both
permissible and reasonable. At the same time, because the statute is
silent on the issue, the Department has the discretion to adopt a
different interpretation if it concludes that the nuclear
nonproliferation objectives of the United States are better served by
doing so. That is, the Department could conclude, as a matter of
policy, that the definition of SNT needs to be applied differently in
the future to address the changing circumstances presented by
proliferation threats in the post-Cold War world.
[[Page 38222]]
The Department's interpretation of the definition of SNT has been
criticized by certain citizen organizations which have argued that the
Nuclear Non-Proliferation Act was intended to establish a purely
objective technology-based test of what is ``important'' and therefore
``importance'' cannot lawfully be a function of the ``level of
expertise of the proposed recipient.'' As the Department interprets
this view, the ``importance'' of technology must be judged solely on
the contribution which it could make to a generic type of facility,
rather than on its contribution to a specific facility of a particular
proposed recipient. Although the Department has concluded that the
Nuclear Non-Proliferation Act does not dictate such a conclusion, it is
interested in receiving comments on whether such an approach would
serve nuclear nonproliferation policy objectives better than the
approach reflected in the existing guidelines.
Specifically, during this rulemaking, the Department will examine
the question of whether the guidelines promote an adequate balance
between the need to cooperate with other countries in the development
of peaceful nuclear technologies and the requirement to assure the
national defense and security through the aggressive support of U.S.
nonproliferation policies. The Department specifically requests comment
on whether circumstances now exist that warrant a change in the
Department's approach to the evaluation of the ``importance''
criterion.
One of the citizen organizations, Greenpeace, Inc., that criticized
the Department's interpretation of the word ``important'' and the
related provisions of the guidelines has released a report on the
Department's collaborative research with Japanese entities on plutonium
reprocessing and breeder reactor technology, entitled ``The Unlawful
Plutonium Alliance.'' That report was accompanied by a legal memorandum
setting forth the Greenpeace interpretation of the relevant statutory
provisions. Although the particular agreements with Japanese entities
are not the subject of this rulemaking and the Department does not
agree with the legal arguments Greenpeace presented, the Greenpeace
study is relevant to the policy question of how the determination of
importance should be made and, in particular, whether it should take
into account the level of expertise of the proposed recipient. It may
be useful to interested members of the public to examine Greenpeace's
report. Accordingly, the Department has placed a copy of the report and
of the legal memorandum in the administrative record on file in its
Freedom of Information Reading Room where a copy of public comments in
response to this notice will be available for public inspection. The
Department has also placed in the administrative record its analysis of
the Greenpeace legal memorandum, as well as a 1990 memorandum on the
same subject prepared by the Department's Office of General Counsel.
IV. Procedural Matters
A. Review Under Executive Order 12866
DOE has concluded that this is not a significant regulatory action
because it does not meet the criteria which define such actions under
Executive Order 12866, 58 FR 51735, and is therefore exempt from
regulatory review. Accordingly, no clearance of this action by the
Office of Management and Budget is required.
B. Environmental Review
The Department has determined that this rulemaking is not a major
Federal action significantly affecting the quality of the human
environment within the meaning of the National Environmental Policy Act
of 1969 (42 U.S.C. 4321 et seq.), and therefore that neither an
environmental assessment nor an environmental impact statement is
required. Two categorical exclusions contained in subpart D, appendix A
of the Department's regulations implementing the National Environmental
Policy Act (10 CFR part 1021) apply to this rulemaking. Categorical
exclusion A6 applies to rulemakings which are procedural in nature.
This is a procedural rulemaking that will codify a process for
determining on a case-by-case basis whether technology which is
proposed to be exported constitutes SNT. Categorical exclusion A9
applies to information gathering and dissemination. The codified
guidelines will be used to determine, again on a case-by-case basis,
whether particular information is SNT, so that conditions required by
statute are properly imposed on the dissemination--through export--of
that information.
Any indirect environmental impacts which may occur when the
exported technology is applied would occur beyond the borders of the
United States. Executive Order 12114, ``Environmental Effects Abroad of
Major Federal Actions,'' excludes from environmental review ``actions
relating to nuclear activities,'' unless such activities provide to a
foreign nation a nuclear production, utilization or waste management
facility. The codified guidelines would apply only to the export of
technology, not facilities.
C. Public Comment
Interested persons are invited to participate in this proceeding by
submitting 3 copies of their comments to the address indicated in the
ADDRESSES section of this notice. The deadline for receipt of comments
is indicated in the DATES section of this notice. The Department
reserves the discretion to consider relevant late-filed comments to the
extent that time allows such consideration. Comments should be
identified on the outside of the envelope and on the documents
themselves with the designation ``SNT ANOPR, DOCKET NO. [NN-RM-810].''
In the event that any person cannot provide the required number of
copies, alternative arrangements can be made in advance with the
Department by contacting the information contact indicated in the FOR
FURTHER INFORMATION CONTACT section at the beginning of this notice.
All written comments will be available for public inspection as
part of the administrative record on file for this rulemaking in the
Department's Freedom of Information Reading Room at the address
provided at the beginning of this notice. If informal meetings or other
contacts occur during this rulemaking, the Department may add a
memorandum to the administrative record on file summarizing what
transpired.
Pursuant to the provisions of 10 CFR 1004.11, 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
of the document, as well as two copies from which the information
claimed to be confidential has been deleted. The Department reserves
the right to determine the confidential status of the information and
to treat it according to its determination.
V. The Current Guidelines
The guidelines currently provide as follows:
Guidelines for the Designation of Sensitive Nuclear Technology
I. Purpose
The purpose of these guidelines is to provide a systematic approach
for DOE to use in its assessment of an application under 10 CFR part
810 to determine whether the proposed scope of work involves the
transfer of sensitive nuclear technology (SNT).
[[Page 38223]]
II. Background
The Nuclear Non-Proliferation Act of 1978 (NNPA) created a new
category of nuclear information, designated ``Sensitive Nuclear
Technology,'' the export of which from the United States is subject to
certain conditions and controls specified in the legislation.
Accordingly, the administration of these controls requires, as a first
step, a means of identifying information proposed to be exported which
falls into the category of SNT.
Under section 4(a)(6) of the NNPA, SNT is confined to information
in the fields of uranium enrichment, nuclear fuel reprocessing, and
heavy water production. This section also provides additional broad
criteria which delineate the information which is to be designated SNT.
According to these criteria, SNT is to include any information, and
only that information which:
Is not Restricted Data;
Is not ``available to the public;'' and
Is ``important to the design, construction, operation, or
maintenance'' of a facility for uranium enrichment, nuclear fuel
reprocessing, or heavy water production.
The fields in which SNT may exist constitute three of the four
fields in which unclassified information (other than that ``which is
available to the public in published form'') may not be transferred
abroad without specific authorization by DOE. The fourth area requiring
specific authorization under part 810 is plutonium (i.e., mixed oxide)
fuel fabrication. Thus, while there is an obvious overlap between SNT
and unclassified information whose transfer abroad requires part 810
authorization, these two categories of information are not identical.
This is so not only because plutonium fuel fabrication is not among the
areas which may include SNT but because the standard of ``important''
is not applicable to information which requires part 810
authorizations. Any information in the designated fields which is not
Restricted Data and which is not available to the public in published
form and assists directly or indirectly in the production of special
nuclear material requires specific authorization for transfer abroad.
It is important to note that:
Not all information whose export requires part 810
specific authorization is SNT, but
All information which is SNT requires part 810 specific
authorization for export.
III. Scope
Although the establishment of the category of SNT and the criteria
for making an SNT determination as discussed below apply most
frequently to private firms, the scope of their applicability is much
broader.
Section 127 of the AEA (introduced by section 305 of the NNPA)
states:
``The United States adopts the following criteria which * * *
will govern exports * * * from the United States of * * * any
sensitive nuclear technology.''
The language above makes no distinction between exports by private
firms, individual persons, or U.S. Government entities. Therefore,
while the DOE is exempt from section 57b and the implementing
regulation 10 CFR part 810, the NNPA provisions related to SNT apply
equally to all agencies of the government (including DOE) as well as
private firms and individuals. Because of this, DOE participation in
foreign reprocessing, enrichment, or heavy water programs is reviewed
by the Office of International Security Affairs, the office with
responsibility for part 810 and related matters.
IV. Methodology
A part 810 application will be analyzed by careful consideration of
each of the three criteria contained in the definition of SNT to
determine if information to be transferred
Does not include Restricted Data;
Is not ``available to the public''; or
Is ``important to the design, construction, operation, or
maintenance of a facility for uranium enrichment, nuclear fuel
reprocessing, or heavy water production.
The first step in the process, if the application involves
enrichment technology, is to determine whether the proposed transfer
involves Restricted Data (the areas of reprocessing and heavy water
production have been declassified and no longer contain any Restricted
Data). If Restricted Data is involved, the analysis will end and no
further consideration of the application under part 810 will take
place. The applicant will be advised and appropriate action will be
taken under other sections of the Atomic Energy Act.
The second step is a determination of whether the proposed
information to be transferred is available to the public. A decision on
this point must take into account paragraph (1) of Part B of Annex A of
the Nuclear Supplier's Guidelines (INFCIRC/254), since the NNPA
definition of SNT was drafted to be consistent with the NSG Guidelines,
and allow the U.S. Government to implement its obligations under those
Guidelines. This paragraph indicates that information available to the
public is that which is ``for example, in published books or
periodicals, or that which has been made available internationally
without restrictions on its further dissemination.'' Data that have
been made generally available to the public in any form, includes:
Data distributed in documentary or other physical form at
open conferences, lectures, trade shows, or other media open to the
public; and
Publications that may be purchased without restrictions at
a nominal cost, or obtained without costs, or are readily available at
libraries accessible to the public. The term ``nominal cost'' is
intended to reflect realistically only the cost of preparing and
distributing the publication and not the intrinsic value of the
technical data.
If, after consideration of all the following factors, it is
determined that all of the information is available to the public, the
case by definition does not involve SNT. If, on the other hand, the
information is not available to the public, then the determination must
be made if any of the information is SNT. In determining the extent to
which the information to be transferred is available to the public, the
following questions should be considered:
A. Is any or all of the information contained in U.S. Government
documents that would be available pursuant to a Freedom of Information
Act (FOIA) request?
Note: In responding to this question it must be recognized that
this goes beyond those documents that are placed on sale or given
routine distribution.
B. Is any or all of the information available, for not more than a
nominal fee, to the public in published documents or data banks (other
than Question A) including information provided to the Nuclear
Regulatory Commission (NRC) without restrictions on further
dissemination?
Note: This includes government and nongovernment publications
and all material which has been placed in the NRC public document
room for public inspection.
C. Has any or all of the information been distributed in physical
form (documents, tapes, etc.) in an open forum?
Note: This includes meetings or conferences sponsored by
nationally recognized scientific or technical organizations.
D. Is any or all of the information publicly available or available
internationally without restriction on further dissemination in forms
other
[[Page 38224]]
than those considered in Questions A through C?
Note: This would include information distributed at education
courses and facility visits. This question is included for
completeness to ensure that all sources are explored.
In responding to these questions it is essential to determine how
the information is to be transmitted. For example, will it be
accompanied by other information or services which may go beyond the
actual content of the available information? It should also be
recognized that the primary burden for proof of public availability
rests with the applicant.
If it is determined that the information proposed to be transferred
is not publicly available, then the third step is to determine if the
information involves SNT. The SNT determination is divided into three
parts as follows:
Part 1: Categorization of the Information Proposed To Be Transferred
A matrix similar to the one that follows will be completed in order
to indicate the type of activity and equipment covered by the
information proposed to be transferred. There may be part 810 cases
where the activity or equipment involved does not fit the matrix and in
these cases a narrative description should be made to describe the
information proposed to be transferred. The matrix that follows is for
a reprocessing facility. A comparable matrix and analysis (part 2), and
assessment (part 3) would be established for proposed assistance in
enrichment or heavy water production.
Anaylsis of Nuclear Technology Transfer Proposals for Whether Sensitive Nuclear Technology is Involved
[Part 1: Categorization of information proposed to be transferred\1\]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Prepare
Activity Prepare design Conceptual Design review Detailed design System analysis Prepare purchase Fabrication construction Quality control Facility
specs design specs support specs startup
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Unit operations.
Fuel receiving &
storage.
Fuel shear/
dissolver.
Solvent
extraction.
PU Purification
& concentration.
PU storage &
conversion.
U purification &
concentration.
U storage &
conversion.
Waste processing
Solvent recovery
Process control
&
instrumentation.
Process off-gas
& building
ventilation.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
Operational Maintenance and Regulatory Technology Management
Activity support repair Training support exchange Quality control support
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit operations...
Fuel receiving &
storage.
Fuel shear/
dissolver.
Solvent extraction
PU Purification &
concentration.
PU storage &
conversion.
U purification &
concentration.
U storage &
conversion.
Waste processing..
Solvent recovery..
Process control &
instrumentation .
[[Page 38225]]
Process off-gas &
building
ventilation .
--------------------------------------------------------------------------------------------------------------------------------------------------------
X--Indicates that information relevant to this area is proposed to be transferred.
1--Example used is for a reprocessing facility.
Gas Centrifuge Enrichment Facility Analysis of Nuclear Technology Transfer Proposals for Whether Sensitive Nuclear Technology Is Involved
[Part 1: Categorization of information proposed to be transferred]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Process Prepare design Conceptual Prepare Fabrication Prepare Construction
Activity development specs design Design review Detailed design System analysis purchase specs support construc specs support
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Unit operations
or process
building.
Feed &
withdrawal
process.
Process building
Process
equipment.
Centrigue
machine.
Recycle &
assembly equip.
Recycle &
assembly equip.
Maintenance
facilities.
Process controls
Utility systems.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
X--Indicates that information relevant to this area is proposed to be transferred.
--------------------------------------------------------------------------------------------------------------------------------------------------------
Facility Operational Maintenance and Regulatory Technology Management
Activity startup support repair Training support exchange Quality control support
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit operations
or process
building.
Feed &
withdrawal
process.
Process building
Process
equipment.
Centrigue
machine.
Recycle &
assembly equip.
Recycle &
assembly equip.
Maintenance
facilities.
Process controls
Utility systems.
--------------------------------------------------------------------------------------------------------------------------------------------------------
X--Indicates that information relevant to this area is proposed to be transferred.
Part 2: Significance of the Information Proposed To Be Transferred
Category: (Row): (For each box that is marked, (Column): On the
matrix the following questions will be answered.)
Specific Information to be Transferred (Exclusive of information
generally available from industrial sources for non-nuclear
applications):
Technical Evaluation
Will the transferred information:
1. Provide assistance of such significance that, without it the
design, construction, operation, or maintenance of a facility would not
be possible?
2. Contribute significantly to the ability to carry out a facility
unit operation (see examples on Part 1 chart) or key activity? If yes,
how essential is the unit operation/activity, and to what degree will
the transferred information contribute to its accomplishment?
3. Solve or provide significant help in dealing with a key
technical problem whose solution is critical to the ability to obtain
an operational capability?
4. Supplant or significantly reduce the need to carry out costly,
technically
[[Page 38226]]
difficult or lengthy R&D and/or test activities?
5. Provide key information that is obtainable only from entities
with practical experience in the particular area on critical aspects of
facility design or operation optimization?
6. Concern a key process, component or subsystem that has been the
subject of extensive R&D in the U.S. or which has been a problem at
U.S. or foreign facilities?
7. Contribute significantly to the design, development or effective
operation of a safety feature that is essential to facility operation?
8. Contribute significantly toward enabling an otherwise inoperable
facility to operate at some level and produce useable quantities of
material?
9. Significantly reduce the lead time and/or costs involved in
designing constructing, operating, or maintaining a facility?
Judgment as to the Technical Significance of the Information
Proposed to be Transferred
Part 3: Consideration of Other Factors
The following factors shall be considered as a further help in
arriving at a determination as to whether the Part 810 activity under
consideration involves the transfer of SNT.
A. Level of expertise of the information recipient:
1. At what stage of research or development is the recipient's
overall program?
2. Does the country of the recipient have an operating facility of
this type?
3. Is the staff of the recipient facility or country experienced in
this technology area?
4. Are there technical resources in the recipient country already
in possession of information of the kind proposed to be transferred?
5. Does the country of the recipient have adequate technical
resources and/or operating experience to be able to proceed
independently of the information to be transferred?
B. Overall relative capability of the transferor and the recipient.
C. Probable reason for recipient's interest in assistance from U.S.
industry (if A and B lead to the view that there are substantially
comparable capabilities in the recipient's country or available from
other foreign sources).
D. Benefit to the recipient of the information to be transferred.
Factors to be considered include:
--Whether the information proposed to be transferred represents a
significant net transfer of capabilities to the recipient country
--Whether there would be a significant impact (relative to strict
reliance on the recipient's indigenous capabilities) on the
construction schedule or initial operational capability or on the
technical or economic viability
--Whether the specific information relates to a laboratory scale or
small scale pilot project
E. Any other case specific considerations bearing on whether
information of ``key technical significance'' should or should not be
designated ``sensitive nuclear technology.''
F. Supplemental information. In the preparation of an analysis for
a particular case, useful insight can be provided by an examination of
previous export matters and other factors related to the application,
such as the following:
1. How does this case compare to other cases where an SNT
determination was made?
2. What Department of Commerce-licensed items have been processed
for this activity?
3. Is the information to be transferred considered to be
proprietary by the transferor?
4. Is there any relevant intelligence information available about
the activity?
5. What is known about any competing bids from foreign suppliers?
V. Summary Assessment
After a careful assessment of all the factors in Part IV (Parts 1,
2 and 3) is made and documented, the entire analysis will be examined
to determine whether any portion or the overall scope of the proposed
transfer involves SNT. If the proposed application involves the
transfer of SNT, the conditions set forth in section 127 and 128 of the
Atomic Energy Act and those in the London Nuclear Supplier's Guidelines
(INFCIRC/254) must be met as a condition of approval under part 810. If
the application is found not to contain SNT, the normal procedures for
processing a part 810 application will be followed.
VI. Implementation
The DOE Export Control Working Group (ECWG) is responsible for the
analysis, using these Guidelines, of specified requests for
authorization or advisory opinions to determine whether they involve
SNT. Frequency of meetings is determined by the number of cases to be
considered. The Working Group Secretary prepares and distributes an
agenda prior to meetings. At the conclusion of each meeting the
Secretary of the ECWG documents the proceedings.
Membership on the Working Group is determined on the basis of the
business to be conducted to ensure the highest level of expertise. It
normally consists of:
Director, PMSA (Chairman)
ECWG Secretary, PMSA
Chief, Operations Branch, PMSA
Appropriate Action Officer, Operations Branch, PMSA
A representative from the Office of the General Counsel
A representative from International Programs, Office of
Nuclear Energy
A reprocessing, enrichment, or heavy water expert from the
Office of Nuclear Energy
A representative from the Office of International Affairs
and Energy Emergencies
Laboratory and contractor consultants (as needed)
The Director, PMSA is the final staff level authority for all SNT
determinations.
When the preliminary review called for in section 12a of the
Executive Branch Procedures is completed, ISA will transmit to the SNEC
agencies the application along with any conclusion that SNT is
involved.
Issued in Washington, DC, on July 18, 1995.
Kenneth E. Baker,
Acting Director, Office of Nonproliferation and National Security.
[FR Doc. 95-18236 Filed 7-24-95; 8:45 am]
BILLING CODE 6450-01-P
