Assistance to foreign atomic energy activities: Miscellaneous amendments,

[Federal Register: July 2, 1999 (Volume 64, Number 127)]

[Proposed Rules]

[Page 35959-35963]

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

[DOCID:fr02jy99-17]

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.

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

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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:

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

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

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

   4. Section 810.7. Generally authorized activities. Assistance to

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      accelerator-driven subcritical assembly systems'' and certain research and test reactors would be added to the exclusions from this general authorization.

   5. 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.

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

   7. 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

   1. 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.

   2. 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

   1. 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.

   2. 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.

   3. 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.

   4. 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.

   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 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

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

   6. 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*

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   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. 99-16800Filed7-1-99; 8:45 am]

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