[Federal Register Volume 60, Number 160 (Friday, August 18, 1995)]
[Rules and Regulations]
[Pages 43002-43005]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-20553]
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DEPARTMENT OF ENERGY
10 CFR Part 810
RIN 1992-AA20
Assistance to Foreign Atomic Energy Activities
AGENCY: Department of Energy.
ACTION: Final Rule.
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SUMMARY: The Department of Energy (DOE) is amending its regulations
concerning unclassified assistance to foreign atomic energy activities.
This action removes Argentina, Brazil, Chile, and South Africa from the
list of countries for which specific authorization by the Secretary of
Energy is required. The effect of the action is to enable U.S. firms
and individuals to provide assistance to civilian nuclear power
reactor-related activities in these countries under the general
authorization. The amendment is consistent with U.S. foreign policy
commitments and reflects the significant progress made by these four
countries on matters related to nuclear nonproliferation.
DATES: This amendment is effective on August 18, 1995.
FOR FURTHER INFORMATION CONTACT: Mr. Zander Hollander, Export Control
Operations Division, NN-43, Office of Arms Control and
Nonproliferation, U.S. Department of Energy, 1000 Independence Ave.,
S.W., Washington, D.C. 20585, Telephone (202) 586-2125; or Robert
Newton, Esq., Office of the General Counsel, U.S. Department of Energy,
1000 Independence Ave., S.W., Washington, D.C. 20585, Telephone (202)
586-0806.
SUPPLEMENTARY INFORMATION:
1. Background
10 CFR Part 810 implements section 57 b.(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 (b)(2)). This section requires that
U.S. persons who engage directly or indirectly in the production of
special nuclear material outside the United States be authorized to do
so by the Secretary of Energy. Pursuant to the Part 810 regulations,
assistance by U.S. persons to nuclear power reactor-related activities
outside the United States is generally authorized for countries not
identified in section 810.8(a). Inclusion of a country on the list
means that even nuclear power reactor-related assistance requires the
Secretary of Energy's specific authorization. Section 810.8(a) notes
that countries may be removed from or added to this list by amendments
published in the Federal Register. Such actions are based on U.S.
foreign policy and national security considerations.
The intent of removing Argentina, Brazil, Chile, and South Africa
from the section 810.8(a) list of countries is to:
Recognize that Argentina, Brazil, and Chile in 1994
brought into force for their national territories the 1967 Treaty for
the Prohibition of Nuclear Weapons in Latin America and the Caribbean
(Treaty of Tlatelolco) and that Argentina and South Africa have become
party to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT)
and members of the Nuclear Suppliers Group.
Recognize that Argentina and Brazil have completed
ratification of the Quadripartite Safeguards Agreement with the
International Atomic Energy Agency [IAEA] and the Brazilian- Argentine
Agency for Accounting and Control of Nuclear Materials for the
application of IAEA safeguards on all of their nuclear activities, that
South Africa has completed its own full-scope safeguards agreement with
IAEA, and that Chile also has IAEA safeguards agreements covering its
nuclear facilities.
Enable U.S. firms and individuals to compete more
effectively against foreign competition to provide assistance to the
safeguarded Argentine, Brazilian, Chilean, and South African civilian
nuclear power programs.
Reduce unnecessary paperwork and time-consuming U.S.
Government reviews of proposals by U.S. firms and individuals to
participate in Argentine, Brazilian, Chilean, and South African
civilian nuclear power reactor-related activities.
[[Page 43003]]
2. Regulatory Changes
The following change is made to section 810.8 Activities Requiring
Specific Authorization:
Argentina, Brazil, Chile, and South Africa are deleted from the
list of countries in section 810.8(a).
3. Statutory Requirements
Pursuant to section 57 b. of the Atomic Energy Act, with the
concurrence of the Department of State and after consultations with the
Departments of Defense and Commerce, the Arms Control and Disarmament
Agency, and the Nuclear Regulatory Commission, the Secretary of Energy
has determined that removal of Argentina, Brazil, Chile, and South
Africa from the list of countries in section 810.8 (a) of 10 CFR Part
810 will not be inimical to the interests of the United States.
4. Procedural Matters
A. Review Under Executive Order 12866
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review under the
Executive Order by the Office of Information and Regulatory Affairs.
B. Review Under the Regulatory Flexibility Act
The rule was reviewed under the Regulatory Flexibility Act, P. 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 amends
regulations in a manner to expedite the current process of
authorization for U.S. persons to conduct certain activities in other
countries; thus, it imposes no economic burden upon small entities
subject to those regulations and, on balance, should reduce economic
burdens on small businesses who will be able to compete for work in
these four countries without undergoing unnecessary paperwork and time-
consuming U.S. Government reviews. DOE, accordingly, certifies that
there will not be a significant and adverse 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 rule eliminates the requirement for U.S. persons to file an
application for authorization to assist civilian nuclear power reactor
programs in four countries that until now required review and approval
by the Secretary of Energy. The amendment permits U.S. companies
seeking to do business in these four countries to compete with foreign
companies without the time-consuming application procedure that has
often put them at a disadvantage. Argentina, Brazil, Chile, and South
Africa are now parties to international arrangements established for
nuclear nonproliferation purposes and have shown by their actions that
requests to assist their nuclear power industries no longer require a
case-by-case analysis. Implementation of this rule affects only
application procedures and will not result in environmental impacts.
DOE has, therefore, determined that this rule is covered under the
Categorical Exclusion found in paragraph A.6 of Appendix A to Subpart
D, 10 CFR Part 1021, which applies to the establishment of procedural
rulemakings. Accordingly, neither an environmental assessment nor an
environmental impact statement is required.
D. Review Under Executive Order 12612
Executive Order 12612 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 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 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2(a)
and (b)(2), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected conduct, and promoting
simplification and burden reduction.
Agencies are also instructed to make every reasonable effort to
ensure that the regulation: specifies clearly any preemptive effect,
effect on existing Federal law or regulation, and retroactive effect;
describes any administrative proceedings to be available prior to
judicial review and any provisions for the exhaustion of such
administrative proceedings; and defines key terms. DOE certifies that
today's rulemaking meets the requirements of sections 2(a) and (b) of
Executive Order 12778.
5. Review of Comments
DOE published a Proposed Rule of this amendment in the Federal
Register on August 29, 1994 (59 FR 44381). Written comments were
received from seven parties. These comments have been available for
public inspection in the DOE Reading Room during consideration of this
Final Rule.
Six of the seven commenters strongly favored the Proposed Rule,
which is now published as a Final Rule. The one unfavorable commenter
found the amendment ``premature'' and cited various factors as relevant
to his belief that ``it is still too early to conclude that none of the
(countries) constitutes a proliferation risk.'' A summary of the
critical comments and DOE responses follow:
Brazil has a uranium enrichment program run by the
Brazilian Navy and it would be a ``blow to nonproliferation for a
United States citizen to participate in such a program.''
DOE response: U.S. firms or individuals require specific
authorization under Part 810 to participate in enrichment,
reprocessing, plutonium fuel fabrication, heavy water production, and
large research/test reactor activities in all foreign countries,
whether or not the country is on the section 810.8 list. Such
participation is given the closest scrutiny from a nonproliferation
perspective.
U.S. citizens should not participate in South Africa's
nuclear program until South Africa reveals the outside assistance it
received for its nuclear weapons program.
DOE Response: South Africa, now a member in good standing of the
international nonproliferation community, has been very forthcoming in
its public disclosures concerning its abandoned nuclear weapons
activities and has declared it did not receive foreign assistance. The
commenter offers no evidence to the contrary.
The four countries do not have effective export control
systems.
[[Page 43004]]
DOE response: Even assuming that one or more of the four countries
has an export control system less effective than that of the United
States, the kinds of U.S. technology that would become available to
them under general authorization are technologies related to a peaceful
nuclear power program. Further, U.S. firms supplying such technologies
under general authorization must have a commitment from the recipient
not to retransfer the technology to a country on the section 810.8 list
without prior U.S. Government consent. Moreover, the technologies most
useful to a would-be proliferant--enrichment, reprocessing, plutonium
fuel fabrication, heavy water production, and large research/test
reactor activities--will continue to require specific authorization by
the Secretary of Energy. Finally, as adherents to the NPT and/or the
Treaty of Tlatelolco, the four countries are committed to deny
assistance to would-be proliferants.
Continuing to require specific authorizations even for
U.S. nuclear power reactor-related assistance to these countries would
enable the United States to track their nuclear programs.
DOE response: Removal of these countries from the list will still
permit DOE to remain aware of their nuclear programs since U.S. firms
and individuals providing assistance under general authorization still
must report such assistance to the Department.
The examples of Iraq, North Korea, Iran, and Libya show
that countries violate their NPT pledges.
DOE response: In contrast to Iraq, North Korea, Iran, and Libya,
the four countries being removed from the section 810.8 list have in
recent years acted in a manner that confirms their nonproliferation
commitments.
As for the comments favoring removal of the four countries from the
section 810.8 list, the following excerpts summarize their tenor and
arguments. The Department finds these arguments largely persuasive:
One commenter said: ``It is important to accord affirmative
recognition to countries that take the necessary steps to support the
world's non-proliferation regime. It is especially important now, as
the extension conference for the Treaty on the Non-Proliferation of
Nuclear Weapons NPT approaches, to provide concrete evidence that
benefits do flow to countries that accept full-scope safeguards.'' (The
conference took place in April 1995.)
A second commenter said: ``No reason remains to treat (the four
countries) under Part 810 in the same way we treat such terrorist-
supporting and demonstrably untrustworthy countries as Iraq and North
Korea . . . If the Department fails to (remove the four countries from
the list), U.S. credibility as a serious participant in the formulation
of international nuclear nonproliferation policy will be the clearest
loser.''
A third commenter said: ``Failure to implement the proposed rule
will force customers in those countries' emerging markets to deal with
non-U.S. suppliers and will deny the economic as well as the
nonproliferation policy benefits that would accrue to the United
States.''
A fourth commenter said: ``For the world community to understand
that the United States backs up its commitments, these countries must
be allowed to receive United States assistance under a DOE general
authorization. Furthermore, such action will demonstrate that the
United States abides by Article IV of the Treaty on the Non
Proliferation of Nuclear Weapons (NPT). Failure to provide prompt and
clear recognition to these four countries would only assist those
opponents of the upcoming NPT extension conference who will argue that
the Treaty is just an excuse for the nuclear 'haves' to discriminate
against the `have nots'. . . The removal of these four countries from
the Part 810.8(a) list is also a necessary step to enable U.S. vendors
to compete more effectively in those markets against their European and
Asian competitors.''
A fifth commenter said: ``The proposed rule would help ensure that
U.S. firms have an equal opportunity to compete for business in the
civilian nuclear power industry in four very important overseas
markets. Three of these --Argentina, Brazil, and South Africa--have
been identified as key emerging markets under the Clinton
Administration's National Export Strategy, and it is widely anticipated
that the U.S. will enter into a free-trade agreement with Chile in the
near future. The proposed rules will bring U.S. export control policies
into line with the practices of other supplier nations. It also will
eliminate a substantial paperwork burden on U.S. exporters.''
A sixth commenter said: `` Other countries, such as Ukraine, will
be watching DOE's actions to determine if participation in
international forums brings with it reciprocal benefits . . . Approval
of the proposal would also send a message to potential proliferators
that they will be further marginalized from the international community
if they continue to act outside of accepted nonproliferation norms.''
List of Subjects in 10 CFR Part 810
Foreign relations, Nuclear energy, Reporting and recordkeeping
requirements.
Issued in Washington, D.C., August 15, 1995.
Kenneth E. Baker,
Acting Director, Office of Nonproliferation and National Security.
For the reasons set out in the preamble, Part 810 of Title 10 of
the Code of Federal Regulations is amended as set forth below:
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 810.8 paragraph (a) is revised to read as follows:
Sec. 810.8 Activities requiring specific authorization
* * * * *
(a) Engaging directly or indirectly in the production of special
nuclear material in any of the countries listed below:
Afghanistan
Albania
Algeria
Andorra
Angola
Armenia
Azerbaijan
Bahrain
Belarus
Burma (Myanmar)
Cambodia
China, People's Republic of
Comoros
Cuba
Djibouti
Georgia
Guyana
India
Iran
Iraq
Israel
Kazakhstan
Korea, People's Democratic Republic of
Kuwait
Kyrgyzstan
Laos
Libya
Mauritania
Moldova
Monaco
Mongolian People's Democratic Republic
Mozambique
Niger
Oman
[[Page 43005]]
Pakistan
Qatar
Russia
Saudi Arabia
Syria
Tajikistan
Turkmenistan
Ukraine
United Arab Emirates
Uzbekistan
Vanuatu
Vietnam
Zambia
Zimbabwe
Countries may be removed from or added to this list by amendments
published in the Federal Register.
* * * * *
[FR Doc. 95-20553 Filed 8-17-95; 8:45 am]
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