Assistance to foreign atomic energy activities: Miscellaneous amendments,

[Federal Register: March 27, 2000 (Volume 65, Number 59)]

[Rules and Regulations]

[Page 16124-16128]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr27mr00-4]

DEPARTMENT OF ENERGY

10 CFR Part 810

RIN 1992-AA24

Assistance to Foreign Atomic Energy Activities

AGENCY: Office of Defense Nuclear Nonproliferation, U.S. Department of Energy.

ACTION: Final rule.

SUMMARY: The Department of Energy (DOE) amends its regulations concerning unclassified assistance to foreign atomic energy activities. The amendments 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 the regulations requires specific authorization; and substitute current addressees for submitting reports and requests.

EFFECTIVE DATE: This final rule is effective April 26, 2000.

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., SW, 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., SW, Washington, DC 20585: Telephone (202) 586- 0806.

SUPPLEMENTARY INFORMATION:

1. Background

   DOE Regulations 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. As explained in a notice of proposed rulemaking published in the Federal Register on July 2, 1999, 64 FR 35959, there has been rapid progress in practical applications of accelerator systems which, until recently, were almost entirely devoted to fundamental scientific research. For example, DOE currently is researching accelerator production of tritium (APT) and accelerator transmutation of nuclear waste (ATW). The potential use of accelerator- driven subcritical assembly systems to produce SNM places exports of technology and services for these systems squarely within the jurisdiction of section 57b(2) of the Atomic Energy Act. Accordingly, to conform part 810 to these technological advances, DOE is revising the rule to publicly assert its until now implicit jurisdiction over exports of technology and services that assist in the production of SNM by means of accelerator-driven subcritical assembly systems and their components.

   DOE intends part 810 to apply to accelerator-driven subcritical assembly system activities only when the purpose is SNM (plutonium or uranium-233) production or when the activities will 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 simply on the basis of capability. Rather, DOE intends to be guided by the following policy: Specific authorization by the Secretary is required for the export to any country of technology or services for production or processing 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 the intended use for production of SNM is not publicly announced, the U.S. provider may ascertain the intended use from participants in the project or from the U.S. Government or other sources. However, Part 810 authorization is required only when the subcritical assembly is capable of continuous operation above five megawatts thermal. This is the same threshold of control DOE applies to exports of assistance to research and test reactors; as with small reactors, subcritical assemblies below this capability do not pose significant proliferation concern.

   DOE part 810 jurisdiction applies to assistance to production of SNM (plutonium or uranium-233) with an accelerator-driven subcritical assembly system whether the assistance is given inside or outside the United States. DOE assertion of 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

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   other non-SNM objectives. Therefore, 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--do not require part 810 authorization.

   The section 810.8 list of countries has been revised to include all non-nuclear-weapon states that do not have full-scope safeguards agreements with the International Atomic Energy Agency (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 the countries lacking such agreements.

2. Regulatory Changes

   The following changes are made to Part 810:

   1. Section 810.3 Definitions. Definitions for ``non-nuclear-weapon state,'' ``accelerator-driven subcritical assembly system,'' ``production accelerator,'' and ``subcritical assembly'' are added.

   2. Section 810.4 Communications. A new addressee for communications concerning these regulations is given.

   3. Section 810.5 Interpretations. The title of the DOE office providing advice is changed.

   4. Section 810.7 Generally authorized activities. Assistance to ``accelerator-driven subcritical assembly systems'' and certain research and test reactors are added to the exclusions from this general authorization.

   5. Section 810.8 Activities requiring specific authorization. Specific authorization is required for assistance relating to accelerator-driven subcritical assembly systems used or intended to be used for the processing, use, or production of SNM, and subcritical assemblies capable of continuous operation above five megawatts thermal. In addition, the list of countries in this section is revised and countries lacking full-scope safeguards agreements are noted.

   6. Section 810.13 Reports. The title of the office to which reports should be sent is changed.

   7. Section 810.16 Effective date and savings clause. The effective date is changed but the savings clause continues to state that the revision does 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 revision of 10 CFR Part 810 will not be inimical to the interests of the United States.

4. Procedural Matters

   1. 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 of the Office of Management and Budget.

   2. Review Under the Regulatory Flexibility Act

      The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that an agency prepare an initial regulatory flexibility analysis for any rule that requires a general notice of proposed rulemaking and that would have a significant economic effect on small entities. A final regulatory flexibility analysis must be prepared and made available when a final rule is published. These requirements do not apply if the agency ``certifies that the rule will not, if promulgated, have a significant economic impact on a substantial number of small entities.'' 5 U.S.C. 605.

      In the notice of proposed rulemaking, DOE determined the revisions to Part 810 would codify existing DOE export control jurisdiction and U.S. Government obligations. Therefore, DOE certified that the proposed rule would not, if promulgated, have a significant economic impact on a substantial number of small entities. DOE did not receive any comments on the certification.

   3. Review Under the National Environmental Policy Act

      The rule was 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 DOE environmental regulations (10 CFR Part 1021). As stated above, the revision to this rule conforms the rule to recent technological advances. Therefore, DOE has concluded that this rule is covered by Categorical Exclusion A5 ``Rulemaking, interpreting or amending an existing rule or regulation that does not change the environmental effect of the rule or regulation being amended.'' As a result, this rule does not constitute a major Federal action significantly affecting the quality of the human environment. Accordingly, no environmental impact statement is required.

   4. Review Under Executive Order 13132

      Executive Order 13132 (42 FR 43255, August 4, 1999) imposes certain requirements on agencies formulating or implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined today's rule and has determined that it does not preempt State law and does not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132.

   5. 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

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      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 required review and determined that, to the extent permitted by law, the regulations meet the relevant standards of Executive Order 12988.

   6. Review Under the Paperwork Reduction Act

      The information collections in this 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.).

   7. Review Under the Small Business Regulatory Enforcement Fairness Act of 1996

      As required by 5 U.S.C. 801, DOE will report to Congress on the promulgation of the rule prior to its effective date. The report will state that it has been determined that the rule is not a ``major rule'' as defined by 5 U.S.C. 804(3).

5. Review of Comments

   Written comments were received from one interested person, an official of a private sector technology firm. These comments were made available for public inspection in the DOE Reading Room. The commenter said that accelerators are not necessarily equivalent to reactors either in the mechanism for SNM production, the power requirements to produce radioactive material, the chemistry sophistication to extract plutonium from uranium fuel, or the vulnerability to counterproliferation measures. Therefore, the commenter suggested that the Final Rule for accelerators should take into account these significant differences. Specifically, the commenter recommended that:

   A limit be placed on accelerator beam current or beam power as well as the fission power (for a 1 GeV proton accelerator, the commenter suggested that 0.5 mA would be appropriate).

   The proposed 5 MWt control threshold for subcritical assemblies be reduced sharply because, the commenter said, it is possible to produce significant SNM without release of significant fission energy with processes entirely different from those of a reactor by optimizing neutron absorption.

   With respect to the first recommendation, DOE gave extensive consideration to establishing control thresholds on accelerators based on accelerator beam energy and beam current. While DOE believes that this approach has technical merit, a significant drawback is that it would establish Part 810 control jurisdiction over all accelerator activities and facilities meeting the technical parameters, even those engaged strictly in benign scientific research, or industrial or medical applications and that involve no source or special nuclear material. DOE believes that such an approach would unnecessarily impede international cooperation on accelerator activities of a wholly benign nature. Therefore, DOE's approach eschews technical parameters on accelerator beam energy and beam current. Rather, it targets all accelerator activities and facilities used or intended for the processing, use, or production of SNM, regardless of accelerator beam energy and current.

   With respect to the second recommendation, DOE believes that extending the existing threshold of control for reactors, which is based on total thermal power, is appropriate for subcritical assemblies. No known accelerator-driven subcritical assembly of source material can produce fissile material (SNM) from fertile material by neutron capture without attendant fission in the produced fissile material. If the system is operated so that, as the commenter suggests, ``the fraction of a given accumulation of plutonium in the uranium is much higher than in a reactor,'' then there is even more reason to expect substantial fission energy release. DOE agrees that accelerator- driven systems differ significantly from reactors, but both liberate comparable energy while producing SNM in systems of interest to a potential proliferant. DOE's conclusions on this score are based on technical studies conducted at three national laboratories. The choice of power limit is based upon realistic calculations for both reactors and accelerator-driven subcritical assemblies.

   In response to the commenter, for this final rule, DOE is revising proposed section 810.8(c)(5) to change the wording ``accelerator-driven subcritical assembly systems'' to ``subcritical assemblies.'' This clarification better reflects DOE's original intent, which is that the 5 MWt power threshold applies to the operating level of the subcritical assembly itself, not to the power of the accelerator beam. Further, the 5 MWt power threshold includes all sources of power to and within the subcritical assembly device--both external (spallation neutrons) and internal (fission neutrons).

   List of Subjects in 10 CFR Part 810

   Foreign relations, Nuclear energy, Reporting and recordkeeping requirements.

   Issued in Washington, DC, March 10, 2000. Rose Gottemoeller, Acting Deputy Administrator for Defense Nuclear Nonproliferation.

   For reasons set out in the preamble, Chapter III of Title 10 of the Code of Federal Regulations is 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

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   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(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 this part, 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 the regulations in this part 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. Section 810.7(h) is revised to read as follows:

   Sec. 810.7 Generally authorized activities.

   * * * * *

   (h) Otherwise engaging directly or indirectly in the production of SNM 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 assembly 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 following. 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* Bahrain* Belarus Benin* Botswana* Burkina Faso* Burma (Myanmar) Burundi* Cambodia* Cameroon* Cape Verde* Central African Republic* Chad* China, People's Republic of Comoros* Congo* (Zaire) Cuba* Djibouti* Equatorial Guinea* Eritrea* Gabon* Georgia* Guinea* Guinea-Bissau* Haiti* India* Iran Iraq* Israel* Kazakhstan Kenya* Korea, People's Democratic Republic of* Kuwait* Kyrgyzstan* Laos* Liberia* Libya Macedonia Mali* Marshall Islands* Mauritania* Micronesia* Moldova* Mongolia Mozambique* Niger* Oman* Pakistan* Palau* 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* Yugoslavia

   (b) Providing sensitive nuclear technology for an activity in any foreign country.

   (c) Engaging in or providing assistance or training 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 SNM (enrichment), chemical processing of irradiated SNM (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 subcritical 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

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   (5) Designing, constructing, fabricating, operating, or maintaining research reactors, test reactors or subcritical assemblies capable of continuous operation above five megawatts thermal.

   (6) Training in the activities of paragraphs (c)(1) through (5) of this section.

7. Section 810.10 (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, National Nuclear Security Administration, Washington, DC 20585, Attention: Director, Nuclear Transfer and Supplier Policy Division, NN-43, Office of Arms Control and Nonproliferation. * * * * *

8. Section 810.13(g) is revised to read as follows:

   Sec. 810.13 Reports.

   * * * * *

   (g) All reports should be sent to: U.S. Department of Energy, National Nuclear Security Administration, 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.

   Except for actions that may be taken by DOE pursuant to Sec. 810.11, the regulations in this part do not affect the validity or terms of any specific authorizations granted under regulations in effect before April 26, 2000 (and contained in the 10 CFR, part 500 to end, edition revised as of January 1, 2000) or generally authorized activities under those regulations for which the contracts, purchase orders, or licensing arrangements were already in effect. Persons engaging in activities that were generally authorized under regulations in effect before April 26, 2000, but that require specific authorization under the regulations in this part, must request specific authorization by July 25, 2000 but may continue their activities until DOE acts on the request.

   [FR Doc. 00-7181Filed3-24-00; 8:45 am]

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