[Federal Register Volume 65, Number 59 (Monday, March 27, 2000)]
[Rules and Regulations]
[Pages 16124-16128]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-7181]


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DEPARTMENT OF ENERGY

10 CFR Part 810

RIN 1992-AA24


Assistance to Foreign Atomic Energy Activities

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

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) amends its regulations 
concerning unclassified assistance to foreign atomic energy activities. 
The amendments make explicit DOE's export control jurisdiction over 
transfers of technology and services to foreign activities relating to 
production of special nuclear material (SNM) by means of accelerator-
driven subcritical assembly systems (particle accelerators operating in 
conjunction with subcritical assemblies); revise the list of countries 
for which all assistance controlled by the regulations requires 
specific authorization; and substitute current addressees for 
submitting reports and requests.

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

FOR FURTHER INFORMATION CONTACT: Mr. Zander Hollander, Nuclear Transfer 
and Supplier Policy Division, NN-43, Office of Arms Control and 
Nonproliferation, U.S. Department of Energy, 1000 Independence Ave., 
SW, Washington, DC 20585: Telephone (202) 586-2125; or Mr. Robert 
Newton, Office of General Counsel, GC-53, U.S. Department of Energy, 
1000 Independence Ave., SW, Washington, DC 20585: Telephone (202) 586-
0806.

SUPPLEMENTARY INFORMATION:

1. Background

    DOE Regulations 10 CFR part 810 implements section 57b(2) of the 
Atomic Energy Act of 1954, as amended by section 302 of the Nuclear 
Non-Proliferation Act of 1978 (NNPA) (42 U.S.C. 2077). These sections 
require that U.S. persons who engage directly or indirectly in the 
production of SNM outside the United States be authorized to do so by 
the Secretary of Energy. As explained in a notice of proposed 
rulemaking published in the Federal Register on July 2, 1999, 64 FR 
35959, there has been rapid progress in practical applications of 
accelerator systems which, until recently, were almost entirely devoted 
to fundamental scientific research. For example, DOE currently is 
researching accelerator production of tritium (APT) and accelerator 
transmutation of nuclear waste (ATW). The potential use of accelerator-
driven subcritical assembly systems to produce SNM places exports of 
technology and services for these systems squarely within the 
jurisdiction of section 57b(2) of the Atomic Energy Act. Accordingly, 
to conform part 810 to these technological advances, DOE is revising 
the rule to publicly assert its until now implicit jurisdiction over 
exports of technology and services that assist in the production of SNM 
by means of accelerator-driven subcritical assembly systems and their 
components.
    DOE intends part 810 to apply to accelerator-driven subcritical 
assembly system activities only when the purpose is SNM (plutonium or 
uranium-233) production or when the activities will result in 
significant SNM production. While some accelerators devoted to basic 
scientific research and development activities may, technically, also 
be capable of configuration to produce SNM, DOE does not intend to 
exert export control authority simply on the basis of capability. 
Rather, DOE intends to be guided by the following policy: Specific 
authorization by the Secretary is required for the export to any 
country of technology or services for production or processing of SNM 
by means of an accelerator-driven subcritical assembly system, or when 
a U.S. provider of assistance knows or has reason to know that an 
accelerator-driven subcritical assembly system will be used for the 
production or processing of SNM. When the intended use for production 
of SNM is not publicly announced, the U.S. provider may ascertain the 
intended use from participants in the project or from the U.S. 
Government or other sources. However, Part 810 authorization is 
required only when the subcritical assembly is capable of continuous 
operation above five megawatts thermal. This is the same threshold of 
control DOE applies to exports of assistance to research and test 
reactors; as with small reactors, subcritical assemblies below this 
capability do not pose significant proliferation concern.
    DOE part 810 jurisdiction applies to assistance to production of 
SNM (plutonium or uranium-233) with an accelerator-driven subcritical 
assembly system whether the assistance is given inside or outside the 
United States. DOE assertion of part 810 jurisdiction over assistance 
should not be construed as inhibiting a U.S. provider of assistance 
from participating in multinational or other non-U.S. accelerator 
activities when the intent is not to produce SNM, but rather for 
scientific, medical, or

[[Page 16125]]

other non-SNM objectives. Therefore, when a U.S. provider has no reason 
to believe that accelerator production of SNM is the objective, the 
U.S. provider needs no Part 810 authorization. The same is true for 
U.S. hosts of foreign participation in scientific or other non-SNM 
accelerator activities in the United States. Therefore, unless 
intending to pursue accelerator-driven subcritical assembly system 
technologies for the production of SNM outside the United States or to 
allow foreign scientists to participate in such activities in the 
United States, members of the U.S. accelerator community--individual 
scientists, universities, commercial firms, research and development 
institutions, and other enterprises--do not require part 810 
authorization.
    The section 810.8 list of countries has been revised to include all 
non-nuclear-weapon states that do not have full-scope safeguards 
agreements with the International Atomic Energy Agency (IAEA) and to 
reflect changes in world conditions since the last time the list was 
published. Since existence of an IAEA full-scope safeguards agreement 
is an important factor in making part 810 determinations, DOE believes 
applicants should be aware of the countries lacking such agreements.

2. Regulatory Changes

    The following changes are made to Part 810:
    A. Section 810.3 Definitions. Definitions for ``non-nuclear-weapon 
state,'' ``accelerator-driven subcritical assembly system,'' 
``production accelerator,'' and ``subcritical assembly'' are added.
    B. Section 810.4 Communications. A new addressee for communications 
concerning these regulations is given.
    C. Section 810.5 Interpretations. The title of the DOE office 
providing advice is changed.
    D. Section 810.7 Generally authorized activities. Assistance to 
``accelerator-driven subcritical assembly systems'' and certain 
research and test reactors are added to the exclusions from this 
general authorization.
    E. Section 810.8 Activities requiring specific authorization. 
Specific authorization is required for assistance relating to 
accelerator-driven subcritical assembly systems used or intended to be 
used for the processing, use, or production of SNM, and subcritical 
assemblies capable of continuous operation above five megawatts 
thermal. In addition, the list of countries in this section is revised 
and countries lacking full-scope safeguards agreements are noted.
    F. Section 810.13 Reports. The title of the office to which reports 
should be sent is changed.
    G. Section 810.16 Effective date and savings clause. The effective 
date is changed but the savings clause continues to state that the 
revision does not affect previously granted specific authorizations or 
generally authorized activities for which the contracts, purchase 
orders, or licensing arrangements are already in effect on the date of 
publication of the final rule; also, that persons engaging in 
activities generally authorized under the present regulations but 
requiring specific authorization under the revision must request such 
specific authorization within 90 days but may continue their activities 
until DOE acts on the request.

3. Statutory Requirements

    Pursuant to section 57b of the Atomic Energy Act as amended by the 
NNPA, with the concurrence of the Department of State and after 
consultations with the Departments of Defense and Commerce, and the 
Nuclear Regulatory Commission, the Secretary of Energy has determined 
that to authorize this revision of 10 CFR Part 810 will not be inimical 
to the interests of the United States.

4. Procedural Matters

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993). 
Accordingly, today's action was not subject to review under the 
Executive Order by the Office of Information and Regulatory Affairs of 
the Office of Management and Budget.

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601-612, requires that an 
agency prepare an initial regulatory flexibility analysis for any rule 
that requires a general notice of proposed rulemaking and that would 
have a significant economic effect on small entities. A final 
regulatory flexibility analysis must be prepared and made available 
when a final rule is published. These requirements do not apply if the 
agency ``certifies that the rule will not, if promulgated, have a 
significant economic impact on a substantial number of small 
entities.'' 5 U.S.C. 605.
    In the notice of proposed rulemaking, DOE determined the revisions 
to Part 810 would codify existing DOE export control jurisdiction and 
U.S. Government obligations. Therefore, DOE certified that the proposed 
rule would not, if promulgated, have a significant economic impact on a 
substantial number of small entities. DOE did not receive any comments 
on the certification.

C. Review Under the National Environmental Policy Act

    The rule was reviewed under the National Environmental Policy Act 
of 1969, Pub. L. 91-190 (42 U.S.C. 4321 et seq.), Council on 
Environmental Quality Regulations (40 CFR Parts 1500-08), and DOE 
environmental regulations (10 CFR Part 1021). As stated above, the 
revision to this rule conforms the rule to recent technological 
advances. Therefore, DOE has concluded that this rule is covered by 
Categorical Exclusion A5 ``Rulemaking, interpreting or amending an 
existing rule or regulation that does not change the environmental 
effect of the rule or regulation being amended.'' As a result, this 
rule does not constitute a major Federal action significantly affecting 
the quality of the human environment. Accordingly, no environmental 
impact statement is required.

D. Review Under Executive Order 13132

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

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

[[Page 16126]]

reduction. With regard to the review required by section 3(a), section 
3(b) of Executive Order 12988 specifically requires that Executive 
agencies make every reasonable effort to ensure that the regulation: 
(1) Clearly specifies the pre-emptive effects, if any; (2) clearly 
specifies any effect on existing Federal law or regulation; (3) 
provides a clear legal standard for affected conduct while promoting 
simplification and burden reduction; (4) specifies the retroactive 
effect, if any; (5) adequately defines key terms; and (6) addresses 
other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. Section 3(c) of 
Executive Order 12988 requires Executive agencies to review regulations 
in light of applicable standards in section 3(a) and section 3(b) to 
determine whether they are met or it is unreasonable to meet one or 
more of them. DOE has completed the required review and determined 
that, to the extent permitted by law, the regulations meet the relevant 
standards of Executive Order 12988.

F. Review Under the Paperwork Reduction Act

    The information collections in this rule are exempt from review by 
the Office of Management and Budget and from public comment for reasons 
of national security as provided for in Executive Orders 12035 and 
12333 issued under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 
et seq.).

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

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

5. Review of Comments

    Written comments were received from one interested person, an 
official of a private sector technology firm. These comments were made 
available for public inspection in the DOE Reading Room. The commenter 
said that accelerators are not necessarily equivalent to reactors 
either in the mechanism for SNM production, the power requirements to 
produce radioactive material, the chemistry sophistication to extract 
plutonium from uranium fuel, or the vulnerability to 
counterproliferation measures. Therefore, the commenter suggested that 
the Final Rule for accelerators should take into account these 
significant differences. Specifically, the commenter recommended that:
     A limit be placed on accelerator beam current or beam 
power as well as the fission power (for a 1 GeV proton accelerator, the 
commenter suggested that 0.5 mA would be appropriate).
     The proposed 5 MWt control threshold for subcritical 
assemblies be reduced sharply because, the commenter said, it is 
possible to produce significant SNM without release of significant 
fission energy with processes entirely different from those of a 
reactor by optimizing neutron absorption.
    With respect to the first recommendation, DOE gave extensive 
consideration to establishing control thresholds on accelerators based 
on accelerator beam energy and beam current. While DOE believes that 
this approach has technical merit, a significant drawback is that it 
would establish Part 810 control jurisdiction over all accelerator 
activities and facilities meeting the technical parameters, even those 
engaged strictly in benign scientific research, or industrial or 
medical applications and that involve no source or special nuclear 
material. DOE believes that such an approach would unnecessarily impede 
international cooperation on accelerator activities of a wholly benign 
nature. Therefore, DOE's approach eschews technical parameters on 
accelerator beam energy and beam current. Rather, it targets all 
accelerator activities and facilities used or intended for the 
processing, use, or production of SNM, regardless of accelerator beam 
energy and current.
    With respect to the second recommendation, DOE believes that 
extending the existing threshold of control for reactors, which is 
based on total thermal power, is appropriate for subcritical 
assemblies. No known accelerator-driven subcritical assembly of source 
material can produce fissile material (SNM) from fertile material by 
neutron capture without attendant fission in the produced fissile 
material. If the system is operated so that, as the commenter suggests, 
``the fraction of a given accumulation of plutonium in the uranium is 
much higher than in a reactor,'' then there is even more reason to 
expect substantial fission energy release. DOE agrees that accelerator-
driven systems differ significantly from reactors, but both liberate 
comparable energy while producing SNM in systems of interest to a 
potential proliferant. DOE's conclusions on this score are based on 
technical studies conducted at three national laboratories. The choice 
of power limit is based upon realistic calculations for both reactors 
and accelerator-driven subcritical assemblies.
    In response to the commenter, for this final rule, DOE is revising 
proposed section 810.8(c)(5) to change the wording ``accelerator-driven 
subcritical assembly systems'' to ``subcritical assemblies.'' This 
clarification better reflects DOE's original intent, which is that the 
5 MWt power threshold applies to the operating level of the subcritical 
assembly itself, not to the power of the accelerator beam. Further, the 
5 MWt power threshold includes all sources of power to and within the 
subcritical assembly device--both external (spallation neutrons) and 
internal (fission neutrons).

List of Subjects in 10 CFR Part 810

    Foreign relations, Nuclear energy, Reporting and recordkeeping 
requirements.

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

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

PART 810--ASSISTANCE TO FOREIGN ATOMIC ENERGY ACTIVITIES

    1. The authority citation for Part 810 continues to read as 
follows:

    Authority: Secs. 57, 127, 128, 129, 161, and 223, Atomic Energy 
Act of 1954, as amended by the Nuclear Non-Proliferation Act of 
1978, Pub. L. 95-242, 68 Stat. 932, 948, 950, 958, 92 Stat. 126, 
136, 137, 138 (42 U.S.C. 2077, 2156, 2157, 2158, 2201, 2273); Sec. 
104 of the Energy Reorganization Act of 1974, Pub. L. 93-438; Sec 
301, Department of Energy Organization Act, Pub. L. 95-91.


    2. Section 810.3 is amended by adding new definitions of 
``accelerator-driven subcritical assembly system,'' ``non-nuclear-
weapon state,'' ``production accelerator,'' and ``subcritical 
assembly,'' in alphabetical order, to read as follows:


Sec. 810.3  Definitions.

* * * * *
    Accelerator-driven subcritical assembly system is a system 
comprising a ``subcritical assembly'' and a ``production accelerator'' 
and which is designed or used for the purpose of producing or 
processing special nuclear material (SNM) or which a U.S. provider of 
assistance knows or has reason to know will be used for the production 
or processing of SNM. In such a system, the ``production accelerator'' 
provides a source of neutrons used to effect SNM

[[Page 16127]]

production in the ``subcritical assembly.''
* * * * *
    Non-nuclear-weapon state is a country not recognized as a nuclear-
weapon state by the NPT (i.e., states other than the United States, 
Russia, the United Kingdom, France, and China).
* * * * *
    Production accelerator is a particle accelerator designed and/or 
intended to be used, with a subcritical assembly, for the production or 
processing of SNM or which a U.S. provider of assistance knows or has 
reason to know will be used for the production or processing of SNM.
* * * * *
    Subcritical assembly is an apparatus containing source material or 
SNM designed or used to produce a nuclear fission chain reaction that 
is not self-sustaining.
* * * * *

    3. Section 810.4(a) is revised to read as follows:


Sec. 810.4  Communications.

    (a) All communications concerning the regulations in this part 
should be addressed to: U.S. Department of Energy, Washington, DC 
20585. Attention: Director, Nuclear Transfer and Supplier Policy 
Division, NN-43, Office of Arms Control and Nonproliferation. 
Telephone: (202) 586-2331.
* * * * *

    4. Section 810.5 is revised to read as follows:


Sec. 810.5  Interpretations.

    A person may request the advice of the Director, Nuclear Transfer 
and Supplier Policy Division (NN-43), on whether a proposed activity 
falls outside the scope of this part, is generally authorized under 
Sec. 810.7, or requires specific authorization under Sec. 810.8; 
however, unless authorized by the Secretary of Energy, in writing, no 
interpretation of the regulations in this part other than a written 
interpretation by the General Counsel is binding upon the Department. 
When advice is requested from the Director, Nuclear Transfer and 
Supplier Policy Division, or a binding, written determination is 
requested from the General Counsel, a response normally will be made 
within 30 days and, if this is not feasible, an interim response will 
explain the delay.

    5. Section 810.7(h) is revised to read as follows:


Sec. 810.7  Generally authorized activities.

* * * * *
    (h) Otherwise engaging directly or indirectly in the production of 
SNM outside the United States in ways that:
    (1) Do not involve any of the countries listed in Sec. 810.8(a); 
and
    (2) Do not involve production reactors, accelerator-driven 
subcritical assembly systems, enrichment, reprocessing, fabrication of 
nuclear fuel containing plutonium, production of heavy water, or 
research reactors, or test reactors, as described in Sec. 810.8 (c)(1) 
through (6).

    6. Section 810.8 is revised to read as follows:


Sec. 810.8  Activities requiring specific authorization.

    Unless generally authorized by Sec. 810.7, a person requires 
specific authorization by the Secretary of Energy before:
    (a) Engaging directly or indirectly in the production of special 
nuclear material in any of the countries following. Countries marked 
with an asterisk (*) are non-nuclear-weapon states that do not have 
full-scope IAEA safeguards agreements in force.

Afghanistan
Albania
Algeria
Andorra*
Angola*
Armenia
Azerbaijan*
Bahrain*
Belarus
Benin*
Botswana*
Burkina Faso*
Burma (Myanmar)
Burundi*
Cambodia*
Cameroon*
Cape Verde*
Central African Republic*
Chad*
China, People's Republic of Comoros*
Congo* (Zaire)
Cuba*
Djibouti*
Equatorial Guinea*
Eritrea*
Gabon*
Georgia*
Guinea*
Guinea-Bissau*
Haiti*
India*
Iran
Iraq*
Israel*
Kazakhstan
Kenya*
Korea, People's Democratic Republic of*
Kuwait*
Kyrgyzstan*
Laos*
Liberia*
Libya
Macedonia
Mali*
Marshall Islands*
Mauritania*
Micronesia*
Moldova*
Mongolia
Mozambique*
Niger*
Oman*
Pakistan*
Palau*
Qatar*
Russia
Rwanda*
Sao Tome and Principe*
Saudi Arabia*
Seychelles*
Sierra Leone*
Somalia*
Sudan
Syria
Tajikistan*
Tanzania*
Togo*
Turkmenistan*
Uganda*
Ukraine
United Arab Emirates*
Uzbekistan
Vanuatu*
Vietnam
Yemen*
Yugoslavia

    (b) Providing sensitive nuclear technology for an activity in any 
foreign country.
    (c) Engaging in or providing assistance or training in any of the 
following activities with respect to any foreign country.
    (1) Designing production reactors, accelerator-driven subcritical 
assembly systems, or facilities for the separation of isotopes of 
source or SNM (enrichment), chemical processing of irradiated SNM 
(reprocessing), fabrication of nuclear fuel containing plutonium, or 
the production of heavy water;
    (2) Constructing, fabricating, operating, or maintaining such 
reactors, accelerator-driven subcritical assembly systems, or 
facilities;
    (3) Designing, constructing, fabricating, operating or maintaining 
components especially designed, modified or adapted for use in such 
reactors, accelerator-driven subcritical assembly systems, or 
facilities;
    (4) Designing, constructing, fabricating, operating or maintaining 
major critical components for use in such reactors, accelerator-driven 
subcritical assembly systems, or production-scale facilities; or

[[Page 16128]]

    (5) Designing, constructing, fabricating, operating, or maintaining 
research reactors, test reactors or subcritical assemblies capable of 
continuous operation above five megawatts thermal.
    (6) Training in the activities of paragraphs (c)(1) through (5) of 
this section.

    7. Section 810.10 (a) is revised to read as follows:


Sec. 810.10  Grant of specific authorization.

    (a) Any person proposing to provide assistance for which Sec. 810.8 
indicates specific authorization is required may apply for the 
authorization to the U.S. Department of Energy, National Nuclear 
Security Administration, Washington, DC 20585, Attention: Director, 
Nuclear Transfer and Supplier Policy Division, NN-43, Office of Arms 
Control and Nonproliferation.
* * * * *
    8. Section 810.13(g) is revised to read as follows:


Sec. 810.13  Reports.

* * * * *
    (g) All reports should be sent to: U.S. Department of Energy, 
National Nuclear Security Administration, Washington, DC 20585, 
Attention: Director, Nuclear Transfer and Supplier Policy Division, NN-
43, Office of Arms Control and Nonproliferation.

    9. Section 810.16 is revised as follows:


Sec. 810.16  Effective date and savings clause.

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

[FR Doc. 00-7181 Filed 3-24-00; 8:45 am]
BILLING CODE 6450-01-P