[Federal Register Volume 64, Number 127 (Friday, July 2, 1999)]
[Proposed Rules]
[Pages 35959-35963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-16800]


=======================================================================
-----------------------------------------------------------------------

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

[[Page 35960]]

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:
    A. Section 810.3. Definitions. Definitions for ``non-nuclear-weapon 
state,'' ``accelerator-driven subcritical assembly system,'' 
``production accelerator,'' and ``subcritical assembly'' would be 
added.
    B. Section 810.4. Communications. A new addressee for 
communications concerning these regulations would be given.
    C. Section 810.5. Interpretations. The title of the DOE office 
providing advice would be changed.
    D. Section 810.7. Generally authorized activities. Assistance to

[[Page 35961]]

accelerator-driven subcritical assembly systems'' and certain research 
and test reactors would be added to the exclusions from this general 
authorization.
    E. 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.
    F. Section 810.13. Reports. The title of the office to which 
reports should be sent would be changed.
    G. 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

    A. 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.
    B. 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

A. 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.

B. 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.

C. 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.

D. 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.

E. 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

[[Page 35962]]

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

F. 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*

[[Page 35963]]

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. 99-16800 Filed 7-1-99; 8:45 am]
BILLING CODE 6450-01-P