[Federal Register Volume 76, Number 216 (Tuesday, November 8, 2011)]
[Rules and Regulations]
[Pages 69120-69122]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28894]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 40

RIN 3150-AI95
[NRC-2011-0072]


Regulatory Changes To Implement the United States/Australian 
Agreement for Peaceful Nuclear Cooperation

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC or the Commission) 
is amending its regulations to implement the 2010 ``Agreement between 
the Government of Australia and the Government of the United States of 
America Concerning Peaceful Uses of Nuclear Energy'' (the Agreement). 
The Agreement prohibits the United States from using Australian-
obligated nuclear material to produce tritium for use in a nuclear 
explosive device, or for any other ``military purpose'' as defined in 
the Agreement. The Agreement's definition of military purpose states 
that it includes ``depleted uranium munitions, and other direct 
military non-nuclear applications, as mutually determined by the 
Parties.'' The amendments in this final rule help enable the U.S. 
Government to meet its Agreement obligations with the Government of 
Australia.

DATES: This final rule is effective November 8, 2011.

ADDRESSES: You can access publicly available documents related to this 
document using the following methods:
     NRC's Public Document Room (PDR): The public may examine 
and have copied, for a fee, publicly available documents at the NRC's 
PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, 
Rockville, Maryland 20852.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): Publicly available documents created or received at the NRC 
are available online in the NRC Library at http://www.nrc.gov/reading-rm/adams.html. From this page, the public can gain entry into ADAMS, 
which provides text and image files of the 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's PDR reference staff 
at 1-(800) 397-4209, (301) 415-4737, or by email to 
[email protected].
     Federal Rulemaking Web Site: Public comments and 
supporting materials related to this final rule can be found at http://www.regulations.gov by searching on Docket ID NRC-2011-0072. Address 
questions about NRC dockets to Carol Gallagher, telephone: (301) 492-
3668; email: [email protected].

FOR FURTHER INFORMATION CONTACT: Naiem S. Tanious, Office of Federal 
and State Materials and Environmental Management Programs, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555-0001; telephone: (301) 415-
6103; email: [email protected].

SUPPLEMENTARY INFORMATION: 

Background

    Section 123 of the Atomic Energy Act of 1954, as amended, sets the 
specific terms and conditions that must be included in the agreements 
concluded between the United States and a foreign government to 
establish the framework for peaceful nuclear cooperation and trade 
between the countries. The United States has entered into over twenty 
such agreements that are active at this time, including agreements with 
the European Atomic Energy Community and the International Atomic 
Energy Agency (IAEA). The United States entered into a Section 123 
agreement with Australia in 1979.
    In 2010, the United States and Australia negotiated a new 
agreement. While it is very similar to the agreement signed in 1979, 
the 2010 Agreement clarifies restrictions on the use of Australian-
obligated nuclear material in the United States by adding a definition 
of ``military purpose.'' The 2010 Agreement retains Article 9(4) of the 
1979 agreement, which states in relevant part that the U.S. must 
``establish and maintain a system of accounting for and control of all 
material transferred pursuant to this Agreement and any material used 
in or produced through the use of any material, equipment or components 
so transferred.''

Discussion

    As discussed in this document, the NRC finds that in order to 
implement provisions in Article 8 (``No explosive or military 
application'') of the 2010 Agreement, NRC regulations in Title 10 of 
the Code of Federal Regulations (10 CFR) Part 40 need to be amended.
    Article 8(1) states, in relevant part, that Australian-obligated 
nuclear material ``shall not be used for any nuclear explosive device, 
for research on or development of any nuclear explosive device, 
including but not limited to, the production of tritium for use in such 
a device, or for any military purpose.'' Article 8(2) states that the 
term ``military purpose'' includes ``military nuclear propulsion; 
munitions, including depleted uranium munitions; and other direct 
military non-nuclear applications as mutually determined by the 
Parties.'' The term ``military purpose'' does not include ``the supply 
of electricity to a military base from any power network, the 
production of radioisotopes to be used for medical purposes in military 
hospitals, and such other similar purposes as may be mutually 
determined by the Parties.''
    The Agreement defines ``material'' as including source material, 
and broadly defines ``source material'' as including uranium ores ``in 
such concentration as mutually determined by the Parties from time to 
time.'' The term ``Australian-obligated source material'' is used in 
this rulemaking to designate the material covered by the rule, and such 
material is that which originates in Australia and is imported from 
there to the United States. The term ``Australian-obligated source 
material'' should be understood as describing a subset of the material 
referenced in the existing definition of Foreign obligations set forth 
in Sec.  40.4. The term Foreign obligations is used in the existing 
Sec.  40.64 reporting requirements, under which licensees holding one 
kilogram or more of source material with foreign obligations must 
document such holdings on a yearly basis and submit annual inventory 
reports to the NRC. In accordance with Sec.  40.64(e), licensees 
subject to 10 CFR part 75 (which implements requirements established by 
treaties between the United States and the IAEA) instead submit their 
inventory reports under Sec. Sec.  75.34 and 75.35. These 10 CFR part 
40 and part 75 reporting requirements are not referenced in the 2010 
Agreement, and are not affected by this rulemaking. If the Australian 
Government later has questions concerning inventories of Australian-
obligated source material in quantities less than one kilogram, the NRC 
would request such information from its licensees, who are already 
required by Sec.  40.61 to keep records

[[Page 69121]]

showing the receipt, transfer, and disposal of all source material.
    The NRC has determined that in order to fully implement Article 8 
of the Agreement, it is necessary to amend the regulations in 10 CFR 
part 40 to exclude Australian-obligated source material from an 
existing exemption applicable to mixtures that contain less than one-
twentieth of one percent of source material; exclude Australian-
obligated source material from an existing exemption applicable to 
uranium contained in counterweights installed in aircraft and military 
projectiles; and prohibit the receipt, processing, transfer, or other 
use of Australian-obligated source material for military purposes.

Section-by-Section Analysis

    The NRC is amending Sec.  40.13(a). Section 40.13(a) exempts from 
the regulations in 10 CFR part 40, and from the requirements for a 
license, source material in any chemical mixture, compound, solution, 
or alloy, in which the source material is by weight less than one-
twentieth of one percent of the mixture, compound, solution, or alloy. 
This Sec.  40.13(a) exemption is modified to state that it does not 
apply to any Australian-obligated source material. This change is being 
made to be consistent with Article 8(2) of the 2010 Agreement, which 
states that the term ``military purpose'' includes ``direct military 
non-nuclear applications.''
    The NRC is amending Sec.  40.13(c)(5). This exemption applies to 
uranium contained in counterweights installed in aircraft, rockets, 
projectiles, and missiles. This Sec.  40.13(c)(5) exemption is being 
modified by adding a new paragraph 40.13(c)(5)(v), stating that the 
exemption does not apply to counterweights manufactured for the 
military using Australian-obligated source material. The new paragraph 
40.13(c)(5)(v) is needed to be consistent with Article 8(2) of the 2010 
Agreement, which states that the term ``military purpose'' includes 
``direct military non-nuclear applications.''
    The NRC is amending 10 CFR part 40 by adding a new Sec.  40.52, 
titled ``Restrictions on the Use of Australian-Obligated Source 
Material.'' The new requirement prohibits those possessing Australian-
obligated source material from processing or otherwise using that 
material for military purposes, and prohibits the transfer of such 
material to others for military purposes. Section 40.52 defines 
``military purposes'' in a manner consistent with Article 8 of the 
Agreement.

Notice and Comment Waiver

    Because the substance of the amendments made by this rule involves 
a foreign affairs function of the United States, the notice and comment 
provisions of the Administrative Procedure Act do not apply (5 U.S.C. 
553(a)(1)). These regulations codify explicit obligations established 
by an international agreement to which the United States is a party, 
which the NRC has no discretion or authority to modify. Under these 
circumstances, the NRC finds good cause for dispensing with the usual 
30-day delay in the rule's effective date, in accordance with 5 U.S.C. 
553(d)(3). The amendments are effective upon publication in the Federal 
Register.

Criminal Penalties

    For the purpose of Section 223 of the Atomic Energy Act of 1954, as 
amended (AEA), the Commission is issuing the final rule to amend 10 CFR 
part 40 under one or more of Sections 161b, 161i, or 161o of the AEA. 
Willful violations of the rule will be subject to criminal enforcement.

Agreement State Compatibility

    Under the ``Policy Statement on Adequacy and Compatibility of 
Agreement State Programs'' approved by the Commission on June 30, 1997, 
and published in the Federal Register on September 3, 1997 (62 FR 
46517), this rule is classified as Compatibility Category ``NRC.'' 
Compatibility is not required for Category ``NRC'' regulations. The NRC 
program elements in this category are those that relate directly to 
areas of regulation reserved to the NRC by the Atomic Energy Act of 
1954, as amended, or the provisions of 10 CFR. Thus, States should not 
adopt these program elements.

Voluntary Consensus Standards

    The National Technology Transfer and Advancement Act of 1995, 
Public Law 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 is otherwise impractical. In this final rule, the NRC 
is modifying its regulations to implement the Agreement between the 
United States of America and the Australian Government for Peaceful 
Nuclear Cooperation. This action does not constitute the establishment 
of a standard that establishes generally applicable requirements.

Environmental Assessment: Finding of No Significant Environmental 
Impact

    The NRC has prepared an environmental assessment (ADAMS Accession 
Number ML112560425), and has determined that there will be no 
significant impact to the public from this action.

Paperwork Reduction Act Statement

    This final rule does not contain new or amended information 
collection requirements subject to the Paperwork Reduction Act of 1995 
(44 U.S.C. 3501 et seq.). Existing requirements were approved by the 
Office of Management and Budget (OMB), approval numbers 3150-0020, 
3150-0055 and 3150-0003.

Public Protection Notification

    The NRC may not conduct or sponsor, and a person is not required to 
respond to, a request for information for an information collection 
requirement unless the requesting document displays a currently valid 
OMB control number.

Regulatory Analysis

    A regulatory analysis has not been prepared for this regulation. 
The information reported is necessary to satisfy United States 
Government obligations under the Agreement.

Backfitting

    The NRC has determined that the backfit rule (Sec. Sec.  50.109, 
70.76, 72.62, or 76.76) does not apply to this final rule because this 
amendment does not involve any provisions that would impose backfits as 
defined in the backfit rule. Therefore, a backfit analysis is not 
required.

Congressional Review Act

    In accordance with the Congressional Review 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 40

    Criminal penalties, Government contracts, Hazardous materials 
transportation, Nuclear materials, Reporting and recordkeeping 
requirements, Source material, Uranium.

    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; 5 U.S.C. 552 and 553; and the Energy Policy 
Act of 2005; Public Law 109-58, 119 Stat. 594 (2005), the

[[Page 69122]]

NRC is adopting the following amendments to 10 CFR Part 40.

PART 40--DOMESTIC LICENSING OF SOURCE MATERIAL

0
1. The authority citation for part 40 continues to read as follows:

    Authority: Secs. 62, 63, 64, 65, 81, 161, 182, 183, 186, 68 
Stat. 932, 933, 935, 948, 953, 954, 955, as amended, secs. 11e(2), 
83, 84, Pub. L. 95-604, 92 Stat. 3033, as amended, 3039, sec. 234, 
83 Stat. 444, as amended (42 U.S.C. 2014(e)(2), 2092, 2093, 2094, 
2095, 2111, 2113, 2114, 2201, 2232, 2233, 2236, 2282); sec. 274, 
Pub. L. 86-373, 73 Stat. 688 (42 U.S.C. 2021); secs. 201, as 
amended, 202, 206, 88 Stat. 1242, as amended, 1244, 1246 (42 U.S.C. 
5841, 5842, 5846); sec. 275, 92 Stat. 3021, as amended by Pub. L. 
97-415, 96 Stat. 2067 (42 U.S.C. 2022); sec. 193, 104 Stat. 2835, as 
amended by Pub. L. 104-134, 110 Stat. 1321, 1321-349 (42 U.S.C. 
2243), sec. 1704, 112 Stat. 2750 (44 U.S.C. 3504 note); Energy 
Policy Act of 2005, Pub. L. No. 109-59, 119 Stat. 594 (2005).
    Section 40.7 also issued under Pub. L. 95-601, sec. 10, 92 Stat. 
2951 as amended by Pub. L. 102-486, sec. 2902, 106 Stat. 3123 (42 
U.S.C. 5851). Section 40.31(g) also issued under sec. 122, 68 Stat. 
939 (42 U.S.C. 2152). Section 40.46 also issued under sec. 184, 68 
Stat. 954, as amended (42 U.S.C. 2234). Section 40.71 also issued 
under sec. 187, 68 Stat. 955 (42 U.S.C. 2237).


0
2. In Sec.  40.13, paragraph (a), the last sentence is revised, and a 
new paragraph (c)(5)(v) is added to read as follows:


Sec.  40.13  Unimportant quantities of source material.

    (a) * * * The exemption contained in this paragraph does not apply 
to Australian-obligated source material, nor does it include byproduct 
materials as defined in this part.
* * * * *
    (c) * * *
    (5) * * *
    (v) Consistent with Sec.  40.52, the counterweights are not 
manufactured for a military purpose using Australian-obligated source 
material.
* * * * *
0
3. Section 40.52 is added to read as follows:


Sec.  40.52  Restrictions on the use of Australian-obligated source 
material.

    (a) In accordance with Article 8 of the Agreement between the 
Government of Australia and the Government of the United States of 
America Concerning Peaceful Uses of Nuclear Energy, dated 2010, 
Australian-obligated source material shall not be used for military 
purposes. As used in this section, ``military purposes'' includes, but 
is not limited to, the production of tritium for use in nuclear 
explosive devices; military nuclear propulsion; munitions, including 
depleted uranium munitions; and other direct military non-nuclear 
applications. ``Military purposes'' does not include the supply of 
electricity to a military base from any power network; the production 
of radioisotopes to be used for medical purposes in military hospitals; 
and such other similar purposes.
    (b) Licensees are prohibited from receiving, processing, 
transferring, or otherwise using Australian-obligated source material 
for military purposes.

    Dated at Rockville, Maryland, this 13th day of October 2011.

    For the Nuclear Regulatory Commission.
Michael F. Weber,
Acting Executive Director for Operations.
[FR Doc. 2011-28894 Filed 11-7-11; 8:45 am]
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