[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\]                                                             
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                                                                                                                                                   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.                                                                                                                                                                                   
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                        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 .                                                                                                                                          
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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]                                                               
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                       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.                                                                                                                                                                                
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X--Indicates that information relevant to this area is proposed to be transferred.                                                                                                              


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                      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