[Federal Register Volume 70, Number 139 (Thursday, July 21, 2005)]
[Rules and Regulations]
[Pages 41937-41939]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-14208]
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Rules and Regulations
Federal Register
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Federal Register / Vol. 70, No. 139 / Thursday, July 21, 2005 / Rules
and Regulations
[[Page 41937]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 110
RIN 3150-AH51
Export and Import of Nuclear Equipment and Material: Nuclear
Grade Graphite
AGENCY: Nuclear Regulatory Commission.
ACTION: Final rule.
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SUMMARY: The Nuclear Regulatory Commission (NRC) export/import
regulations in 10 CFR part 110 are being revised to remove the NRC's
export licensing requirements for nuclear grade graphite for non-
nuclear end use. The purpose of this change is to remove from NRC
export licensing jurisdiction nuclear materials which are not of
significance from a nuclear proliferation perspective. The
responsibility for the licensing of exports of nuclear grade graphite
for non-nuclear end use will be transferred to the Department of
Commerce (DOC). The DOC is publishing elsewhere in this Federal
Register a final rule that places such exports under its jurisdiction.
DATES: Effective July 21, 2005.
ADDRESSES: Publicly available documents related to this rulemaking may
be viewed electronically on the public computers located at the NRC's
Public Document Room (PDR), Room O1F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland. The PDR reproduction contractor
will copy documents for a fee. Selected documents can be viewed and
downloaded electronically via the NRC's rulemaking Web site at http://ruleforum.llnl.gov.
Publicly available documents created or received at the NRC are
available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/NRC/reading-rm/adams.html. From this site, the public can
gain entry into the NRC's Agencywide Document Access and Management
System (ADAMS), which provides text and image files of NRC's public
documents. If you do not have access to ADAMS or if there are problems
in accessing the documents located in ADAMS, contact the NRC Public
Document Room (PDR) Reference staff at (800) 397-4209, (301) 415-4737,
or by e-mail to [email protected].
FOR FURTHER INFORMATION CONTACT: Suzanne Schuyler-Hayes, Office of
International Programs, U.S. Nuclear Regulatory Commission, Washington,
DC 20555-0001, telephone (301) 415-2333, e-mail [email protected].
SUPPLEMENTARY INFORMATION:
Background
The purpose of this rule is to update NRC's regulations in 10 CFR
part 110 governing the export of nuclear grade graphite. Neither the
Atomic Energy Act (AEA) nor the Nuclear Non-proliferation Act (NNPA)
explicitly requires that the export of nuclear grade graphite be
controlled by the NRC. The Commission has controlled the export of
nuclear grade graphite pursuant to Section 109b. of the AEA, due to its
prior determination that nuclear grade graphite is an ``item or
substance'' that is ``especially relevant from the standpoint of export
control because of [its] significance for nuclear explosive purposes.''
As a result of technological advancements in the production of
graphite, virtually all graphite produced today can be considered
``nuclear grade.'' The NRC's licensing experience has been that most
nuclear grade graphite is exported only for non-nuclear end use in the
manufacture of commercial and industrial items.
Other supplier nations have export controls over nuclear grade
graphite but have limited them to cover exports ``for use in a nuclear
reactor.'' This limitation appears in both the Nuclear Non-
Proliferation Treaty Exporters Committee (Zangger Committee) and the
Nuclear Suppliers Group (NSG) definitions of controlled items. See,
e.g., International Atomic Energy Agency INFCIRC/209 and 254
respectively.
The NRC has determined, after consultation with the Executive
Branch, that nuclear grade graphite for non-nuclear end use is not an
``item or substance'' that is ``especially relevant from the standpoint
of export control because of [its] significance for nuclear explosive
purposes.'' See Section 109b. of the AEA.\1\ The Executive Branch,
including the Departments of State, Energy, Defense, and Commerce,
concurs in the NRC's determination. The history of the use of nuclear
grade graphite exported under the Commission's authority indicates that
graphite has not been diverted for illicit purposes to produce weapons-
grade material or for use in unsafeguarded nuclear activities. To the
extent that any risk of diversion may exist, exports of nuclear grade
graphite for non-nuclear end use will continue to be controlled by the
DOC. Thus, any effort to divert exported material for illicit purposes
would likely be discovered by the cognizant national authority or the
international community.
Accordingly, the Commission has concluded, with the concurrence of
the Executive Branch, that U.S. regulatory and commercial interests
will be best served by the DOC assuming export control over all nuclear
grade graphite for non-nuclear end use. The DOC is publishing
regulations establishing licensing controls over this class of
material.
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\1\ The NRC has not, however, made the same finding under the
Section 109b. of the AEA with respect to exports of nuclear grade
graphite for nuclear end use, which the NRC will continue to
regulate as a material ``especially relevant for export control
because of [its] significance for nuclear explosive purposes.''
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This final rule limits NRC's jurisdiction over exports of nuclear
grade graphite to nuclear end use. The definition of ``nuclear grade
graphite'' in 10 CFR 110.2 is being replaced with a definition of
``nuclear grade graphite for nuclear end use.'' Nuclear grade graphite
for nuclear end use is being defined in Sec. 110.2 as ``graphite
having a purity level of better than (i.e., less than) 5 parts per
million boron equivalent * * * and intended for use in a nuclear
reactor.'' This definition is consistent with the definition in the
Zangger Committee and NSG Part 1 Trigger Lists. The density requirement
of 1.5 grams per cubic centimeter in the current definition of nuclear
grade graphite is being removed. Graphite powder at any density level
for nuclear end use, including the coating of fuel spheres in pebble
bed reactor applications, is being captured under NRC jurisdiction. The
general license for the export of nuclear grade graphite for nuclear
end use in
[[Page 41938]]
Sec. 110.25 is being revoked. All exports of nuclear grade graphite
for nuclear end use will now require a specific license from the NRC,
including Commission and Executive Branch review (see Sec. Sec. 110.40
and 41), and will be noticed in the Federal Register (see Sec.
110.70). Finally, all NRC license provisions for non-nuclear end use
exports of nuclear grade graphite are being removed. A note is being
added which states that the export of nuclear grade graphite for non-
nuclear end use is regulated by the DOC.
This final rule eliminates the NRC licensing burden on exporters
for nuclear grade graphite exported purely for non-nuclear end use
which, under current industry trends, constitutes the majority of
nuclear grade graphite being exported. Removing exports of nuclear
grade graphite for non-nuclear end use from 10 CFR part 110 will also
reduce the burden under the Paperwork Reduction Act for licensees
exporting nuclear grade graphite for non-nuclear end use.
The NRC has determined that this rule will pose no unreasonable
risk to the public health and safety or the common defense and
security.
Administrative Procedure Act
The provisions of the Administrative Procedure Act under 5 U.S.C.
553 requiring notice of proposed rulemaking, the opportunity for public
participation, and a 30-day delay in effective date are inapplicable
because this rule involves a military and foreign affairs function of
the United States (5 U.S.C. 553(a)(1)). Accordingly, this final rule is
effective immediately upon publication in the Federal Register.
Voluntary Consensus Standards
The National Technology Transfer and Advancement Act of 1995, Pub.
L. 104-113, requires that Federal agencies use technical standards that
are developed or adopted by voluntary consensus standards bodies unless
using such a standard is inconsistent with applicable law or otherwise
impractical. This final rule does not constitute the establishment of a
standard for which the use of a voluntary consensus standard would be
applicable.
Environmental Impact: Categorical Exclusion
The NRC has determined that this final rule is the type of action
described in categorical exclusion 10 CFR 51.22(c)(1). Therefore,
neither an environmental impact statement nor an environmental
assessment has been prepared for the regulation.
Paperwork Reduction Act Statement
This final rule eliminates the burden on licensees for
recordkeeping and reporting requirements to obtain a license for the
export of nuclear grade graphite for non-nuclear end use and maintain
associated records under 10 CFR part 110. The public burden for
information collection and recordkeeping requirements to export nuclear
grade graphite for non-nuclear end use is estimated to average 3.6
hours per licensee. Because the burden for this information collection
is insignificant, Office of Management and Budget (OMB) clearance is
not required. Existing requirements were approved by OMB, approval
numbers 3150-0027 and 3150-0036.
Public Protection Notification
The NRC may not conduct or sponsor, and a person is not required to
respond to, a request for information or an information collection
requirement unless the requesting document displays a currently valid
OMB control number.
Regulatory Analysis
The NRC has sole control of the export of nuclear grade graphite
for nuclear applications. There is no other alternative to amending the
regulations at 10 CFR part 110 to reflect changing circumstances. The
final rule will reduce the burden on licensees and the cost to the
public without posing an unreasonable risk to the public health and
safety or to the common defense and security.
Regulatory Flexibility Certification
As required by the Regulatory Flexibility Act of 1980, 5 U.S.C.
605(b), the Commission certifies that this final rule does not have a
significant economic impact on a substantial number of small entities.
This rule eliminates NRC license requirements for the export of nuclear
grade graphite for non-nuclear end use. The companies which export
nuclear grade graphite do not fall within the scope of the definition
of ``small entities'' set forth in the Regulatory Flexibility Act (5
U.S.C. 601(3)), or the Size Standards established by the NRC (10 CFR
2.810).
Backfit Analysis
The NRC has determined that a backfit analysis is not required for
this final rule because these amendments do not include any provisions
that would impose backfits as defined in 10 CFR Chapter I.
Small Business Regulatory Enforcement Fairness Act
In accordance with the Small Business Regulatory Enforcement
Fairness Act of 1996, the NRC has determined that this action is not a
major rule and has verified this determination with the Office of
Information and Regulatory Affairs of OMB.
List of Subjects in 10 CFR Part 110
Administrative practice and procedure, Classified information,
Criminal penalties, Export, Import, Intergovernmental relations,
Nuclear materials, Nuclear power plants and reactors, Reporting and
recordkeeping requirements, Scientific equipment.
0
For the reasons set out in the preamble and under the authority of the
Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of
1974, as amended, and 5 U.S.C. 552 and 553, the NRC is adopting the
following amendments to 10 CFR part 110.
PART 110--EXPORT AND IMPORT OF NUCLEAR EQUIPMENT AND MATERIAL
0
1. The authority citation for part 110 continues to read as follows:
Authority: Secs. 51, 53, 54, 57, 63, 64, 65, 81, 82, 103, 104,
109, 111, 126, 127, 128, 129, 161, 181, 182, 183, 187, 189, 68 Stat.
929, 930, 931, 932, 933, 936, 937, 948, 953, 954, 955, 956, as
amended (42 U.S.C. 2071, 2073, 2074, 2077, 2092-2095, 2111, 2112,
2133, 2134, 2139, 2139a, 2141, 2154-2158, 2201, 2231-2233, 2237,
2239); sec. 201, 88 Stat. 1242, as amended (42 U.S.C. 5841; sec 5,
Pub. L. 101-575, 104 Stat. 2835 (42 U.S.C. 2243); sec. 1704, 112
Stat. 2750 (44 U.S.C. 3504 note).
Sections 110.1(b)(2) and 110.1(b)(3) also issued under Pub. L.
96-92, 93 Stat. 710 (22 U.S.C. 2403). Section 110.11 also issued
under sec. 122, 68 Stat. 939 (42 U.S.C. 2152) and secs. 54c and 57d,
88 Stat. 473, 475 (42 U.S.C. 2074). Section 110.27 also issued under
sec. 309(a), Pub. L. 99-440. Section 110.50(b)(3) also issued under
sec. 123, 92 Stat. 142 (42 U.S.C. 2153). Section 110.51 also issued
under sec. 184, 68 Stat. 954, as amended (42 U.S.C. 2234). Section
110.52 also issued under sec. 186, 68 Stat. 955 (42 U.S.C. 2236).
Sections 110.80-110.113 also issued under 5 U.S.C. 552, 554.
Sections 110.130-110.135 also issued under 5 U.S.C. 553. Sections
110.2 and 110.42(a)(9) also issued under sec. 903, Pub. L. 102-496
(42 U.S.C. 2151 et seq.).
0
2. In Sec. 110.2, the definition of ``nuclear grade graphite'' is
removed and the definition of ``nuclear grade graphite for nuclear end
use'' is added to read as follows:
Sec. 110.2 Definitions.
* * * * *
[[Page 41939]]
Nuclear grade graphite for nuclear end use means graphite having a
purity level better than (i.e., less than) 5 parts per million boron
equivalent, as measured according to ASTM standard C1233-98 and
intended for use in a nuclear reactor. (Nuclear grade graphite for non-
nuclear end use is regulated by the Department of Commerce.)
* * * * *
0
3. In Sec. 110.9, paragraph (e) is revised to read as follows:
Sec. 110.9 List of Nuclear Material under NRC export licensing
authority.
* * * * *
(e) Nuclear grade graphite for nuclear end use.
Sec. 110.25 [Removed]
0
4. Remove Sec. 110.25.
0
5. Amend Sec. 110.40 as follows:
0
a. Revise paragraph (b)(3);
0
b. Redesignate paragraphs (b)(4) through (b)(7) as paragraphs (b)(5)
through (b)(8);
0
c. In newly redesignated paragraph (b)(7), further redesignate
paragraph (iv) as paragraph (b)(7)(v);
0
d. Revise redesignated paragraph (b)(7)(iii);
0
e. Add new paragraphs (b)(4) and (b)(7)(iv).
Sec. 110.40 Commission review.
* * * * *
(b) * * *
(3) Nuclear grade graphite for nuclear end use.
(4) 1,000 kilograms or more of deuterium oxide (heavy water), other
than exports of heavy water to Canada.
* * * * *
(7) * * *
(iii) Nuclear grade graphite for nuclear end use;
(iv) 250 kilograms of source material or heavy water; or
* * * * *
0
6. In Sec. 110.41, paragraph (a)(3) is revised, paragraphs (a)(4)
through (a)(9) are redesignated as paragraphs (a)(5) through (a)(10),
and a new paragraph (a)(4) is added to read as follows:
Sec. 110.41 Executive branch review.
(a) * * *
(3) Nuclear grade graphite for nuclear end use.
(4) More than 100 curies of tritium, and deuterium oxide (heavy
water), other than exports of heavy water to Canada.
* * * * *
0
7. In Sec. 110.42, the introductory language of paragraph (b) is
revised to read as follows:
Sec. 110.42 Export licensing criteria
* * * * *
(b) The review of license applications for the export of nuclear
equipment, other than a production or utilization facility, and for
deuterium and nuclear grade graphite for nuclear end use, is governed
by the following criteria:
* * * * *
0
8. In Sec. 110.70, paragraph (b)(3) is revised, paragraph (b)(4) is
redesignated as paragraph (b)(5), and a new paragraph (b)(4) is added
to read as follows:
Sec. 110.70 Public notice of receipt of an application
* * * * *
(b) * * *
(3) 10,000 kilograms or more of heavy water.
(4) Nuclear grade graphite for nuclear end use.
* * * * *
Dated in Rockville, Maryland, this 12th day of October, 2004.
For the Nuclear Regulatory Commission.
Luis A. Reyes,
Executive Director for Operations.
Editorial note: This document was received at the Office of the
Federal Register on July 15, 2005.
[FR Doc. 05-14208 Filed 7-20-05; 8:45 am]
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