[Federal Register Volume 86, Number 191 (Wednesday, October 6, 2021)]
[Rules and Regulations]
[Pages 55476-55479]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-21548]


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NUCLEAR REGULATORY COMMISSION

10 CFR Part 110

[NRC-2014-0201]
RIN 3150-AJ45


Updates on the Export of Deuterium

AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

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SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is revising its 
regulations to remove the NRC's licensing authority for exports of 
deuterium for non-nuclear end use. The responsibility for the licensing 
of exports of deuterium for non-nuclear end use is being transferred to 
the Department of Commerce's Bureau of Industry and Security. The 
Bureau of Industry and Security is publishing a final rule in this 
edition of the Federal Register to include such exports under its 
export licensing jurisdiction. Exports of deuterium for nuclear end use 
will remain under the NRC's export licensing jurisdiction.

DATES: This final rule is effective on December 6, 2021.

ADDRESSES: Please refer to Docket ID NRC-2014-0201 when contacting the 
NRC about the availability of information for this action. You may 
obtain publicly-available information related to this action by any of 
the following methods:
     Federal Rulemaking Website: Go to https://www.regulations.gov and search for Docket ID NRC-2014-0201. Address 
questions about NRC dockets to Dawn Forder; telephone: 301-415-3407; 
email: [email protected]. For technical questions, contact the 
individual listed in the FOR FURTHER INFORMATION CONTACT section of 
this document.
     NRC's Agencywide Documents Access and Management System 
(ADAMS): You may obtain publicly-available documents online in the 
ADAMS Public Documents collection at https://www.nrc.gov/reading-rm/adams.html. To begin the search, select ``Begin Web-based ADAMS 
Search.'' For problems with ADAMS, please contact the NRC's Public 
Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or 
by email to [email protected]. The ADAMS accession number for each 
document referenced (if it is available in ADAMS) is provided the first 
time that it is mentioned in the SUPPLEMENTARY INFORMATION section.
     Attention: The PDR, where you may examine and order copies 
of public documents is currently closed. You may submit your request to 
the PDR via email at [email protected] or call 1-800-397-4209 
between 8:00 a.m. and 4:00 p.m. (EST), Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: Janice Owens, Office of International 
Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-
0001; telephone: 301-287-9096; email: [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Section 109 of the Atomic Energy Act of 1954 (AEA), as amended by 
the Nuclear Non- Proliferation Act of 1978 (NNPA), authorizes and 
directs the NRC, after consultation with the Secretaries of State, 
Energy, and Commerce, to exercise its export licensing authority over 
``items or substances'' determined by the Commission to be ``especially 
relevant from the standpoint of export control because of their 
significance for nuclear explosive purposes'' (42 U.S.C. 2139(b)). 
Since 1978, under this authority the NRC has exercised jurisdiction 
over all exports of deuterium, including heavy water, as well as 
deuterium gas and other deuterated compounds for both nuclear and non-
nuclear end uses. In the early years of the nuclear energy industry, 
deuterium oxide (heavy water)

[[Page 55477]]

was largely produced for use in nuclear reactors. High-purity reactor 
grade heavy water, which has a deuterium concentration of 99.75 percent 
or greater, has been used to operate reactors with natural uranium.
    In the last decade, the market for deuterium has significantly 
expanded and evolved beyond nuclear reactor use. Non-nuclear use of 
deuterium includes, but is not limited to manufacture of advanced 
electronics, deuterated solvents, deuterated pharmaceuticals, hydrogen 
arc-lamps, neutron generators, and tracers in hydrological, biological, 
and medical studies. Despite this market change, the NRC has continued 
to control all exports of deuterium under the general or specific 
export licensing provisions in part 110 of title 10 of the Code of 
Federal Regulations (10 CFR), ``Export and Import of Nuclear Equipment 
and Material.'' The NRC has determined, in consultation with the 
Executive Branch, that it is appropriate to revise its regulations and 
transfer the export licensing control of non-nuclear end use of 
deuterium to the Department of Commerce as was done for the non-nuclear 
end use of nuclear grade graphite in 2005 (70 FR 41937; July 21, 2005).
    Under current NRC regulations, if an export of deuterium is not 
authorized under the general license in Sec.  110.24, then a specific 
NRC export license is required. Paragraph (a) of the general license 
authorizes export of deuterium to countries that are not embargoed 
destinations (Sec.  110.28) or restricted destinations (Sec.  110.29) 
in quantities of 10 kg or less (50 kg of heavy water) with an annual 
limit of 200 kg (1,000 kg heavy water) to any one country. Paragraph 
(b) of Sec.  110.24 authorizes deuterium export to restricted countries 
(Sec.  110.29) in quantities of 1 kg or less (5 kg of heavy water) with 
an annual limit of 5 kg (25 kg of heavy water) to any one restricted 
country.
    Over the past 10 years, the quantity of deuterium exported for non-
nuclear end use has steadily increased. A growing number of companies 
have been required to obtain specific licenses to export deuterium for 
non-nuclear use because the quantity exceeded the general license 
quantity thresholds. The NRC's recent licensing experience has shown 
that deuterium has been exported almost exclusively for non-nuclear 
industrial and research end use, prompting the reevaluation of NRC 
licensing requirements concerning these non-nuclear end use exports. 
Other supplier nations have export controls over deuterium 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) clarification of items on the Trigger List; see, for example, 
International Atomic Energy Agency INFCIRC/209/Rev.5 (March 2020) \1\ 
and INFCIRC/254/Rev.14/Part 1 (October 2019),\2\ respectively. The 
United States is a member of the Zangger Committee and a participating 
government of the NSG.
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    \1\ http://zanggercommittee.org/download/18.6a32cf891717bf4c02d11/1588579969571/infcirc209r5.pdf.
    \2\ https://www.iaea.org/sites/default/files/publications/documents/infcircs/1978/infcirc254r14p1.pdf.
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    The history of the use of deuterium exported under the NRC's 
authority indicates that deuterium has not been diverted for known 
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 deuterium for non-nuclear end use will 
continue to be controlled by the Department of Commerce, and 
appropriate control mechanisms exist within national regulatory 
authorities and the international community to detect efforts to divert 
deuterium for known illicit purposes.

II. Discussion

    The NRC is revising its regulations that govern the export and 
import of nuclear equipment and material in 10 CFR part 110. The 
revisions are necessary to reflect technological advances involving the 
use of deuterium, including heavy water, as well as deuterium gas and 
deuterium or deuterated compounds (deuterium) for non-nuclear 
industrial and research activities. These changes will also harmonize 
U.S. export control of deuterium with international standards.
    Based on the foregoing, the NRC has determined, after consultation 
with the Executive Branch, including the Departments of State, Energy, 
Defense, and Commerce, that deuterium 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.'' The Executive Branch concurs in the NRC's determination. 
The NRC has not, however, made the same finding under Section 109b. of 
the AEA with respect to exports of deuterium 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.'' The NRC is also retaining authority for licensing exports 
of plants for the production, separation, or purification of heavy 
water, deuterium and deuterium compounds and especially designed or 
prepared assemblies or components for these plants. As such, no changes 
are being made to Sec.  110.8(g) or appendix K to 10 CFR part 110.
    The definition of Deuterium in Sec.  110.2 is being revised to 
include what deuterium for nuclear end use means in the context of 
shared jurisdiction with Department of Commerce's Bureau of Industry 
and Security. The revised definition is consistent with the Zangger 
Committee Understandings documented in INFCIRC/209 and the NSG 
Guidelines documented in INFCIRC/254/Part 1.
    The general license authorizing the export of deuterium for nuclear 
end use remains under NRC jurisdiction. The general license for the 
export of deuterium for nuclear end use found in Sec.  110.24 is being 
revised to reflect that NRC jurisdiction applies to deuterium exports 
for nuclear end use only.
    This final rule eliminates the licensing burden on exporters of 
deuterium for non-nuclear end use which, under current industry trends, 
constitutes the majority of deuterium being exported. Removing exports 
of deuterium for non-nuclear end use from 10 CFR part 110 also reduces 
recordkeeping and reporting requirements for those licensees who will 
no longer require specific licenses for exports of deuterium for non-
nuclear end use.
    Accordingly, the NRC concludes, with the concurrence of the 
Executive Branch, that exports of deuterium for non-nuclear end use are 
not especially relevant from the standpoint of export control because 
of their lack of significance for nuclear explosive purposes, and that 
control over such exports is most appropriately vested with the 
Department of Commerce. The NRC has determined that this rule will pose 
no unreasonable risk to the public health and safety or the common 
defense and security. The Department of Commerce is publishing 
regulations establishing licensing controls over this class of material 
in the RULES category of this issue of the Federal Register.
    During the 60-day delay in the effective date for both rules, the 
NRC will contact existing licensees and persons with pending license 
applications affected by this transfer of jurisdiction to the 
Department of Commerce to ensure an uninterrupted transition from one 
regulatory authority to another.

[[Page 55478]]

III. Summary of Changes

Section 110.2 Definitions

    This final rule revises the definition for Deuterium to clarify the 
difference between deuterium used for nuclear end use versus non-
nuclear end use and to recognize the Department of Commerce as the 
regulatory authority for exports of deuterium for non-nuclear end use.

Section 110.9 List of Nuclear Material Under NRC Export Licensing 
Authority

    This final rule revises paragraph (d) to include the phrase ``for 
nuclear end use'' after deuterium to clarify that the NRC has export 
authority over deuterium for nuclear end use only.

Section 110.24 General License for the Export of Deuterium

    This final rule adds the phrase ``for nuclear end use'' to clarify 
that the general license for deuterium only applies to exports of 
deuterium for nuclear end use.

Section 110.40 Commission Review

    This final rule revises paragraph (b)(5)(iii), redesignates 
paragraph (b)(5)(iv) as paragraph (b)(5)(v) and adds new paragraph 
(b)(5)(iv) to add ``for nuclear end use'' after ``heavy water'' to 
clarify that Commission review of license applications under this 
section only applies to an application to export 250 kilograms of heavy 
water for nuclear end.

Section 110.41 Executive Branch Review

    This final rule revises paragraph (a)(4), redesignates paragraphs 
(a)(5) through (a)(10) as paragraphs (a)(6) through (a)(11), and adds 
new paragraph (a)(5) to clarify that Executive Branch review under this 
section only applies to an application to export of deuterium for 
nuclear end use.

Section 110.42 Export Licensing Criteria

    This final rule revises paragraph (b) to add the phrase ``for 
nuclear end use'' to clarify that NRC export licensing jurisdiction 
over deuterium is limited to nuclear end use.

Section 110.54 Reporting Requirements

    This final rule revises paragraph (a)(1) to add the phrase ``for 
nuclear end use'' after each mention of deuterium to clarify that 
reporting requirements for exports of deuterium only apply to exports 
of deuterium for nuclear end use.

Section 110.70 Public Notice of Receipt of an Application

    This final rule revises paragraph (b)(3) to add the phrase ``for 
nuclear end use'' to clarify that the NRC will notice the receipt of 
export applications for 10,000 kilograms or more of heavy water for 
nuclear end use, excluding exports of heavy water to Canada for nuclear 
end use.

IV. Rulemaking Procedure

    Because this rule involves a foreign affairs function of the U.S., 
the notice and comment provisions of the Administrative Procedure Act 
do not apply (5 U.S.C. 553(a)(1)).

V. Regulatory Flexibility Certification

    The Regulatory Flexibility Act does not apply to regulations for 
which a Federal agency is not required by law, including the rulemaking 
provisions of the Administrative Procedure Act, 5 U.S.C. 553(b), to 
publish a general notice of proposed rulemaking (5 U.S.C. 604). As 
discussed in this document under Section IV, ``Rulemaking Procedure,'' 
this final rule is exempt from the requirements of 5 U.S.C. 553(b). 
Accordingly, the NRC also determines that the requirements of the 
Regulatory Flexibility Act do not apply to this final rule.

VI. Regulatory Analysis

    The NRC has sole control of the export of deuterium for nuclear 
applications. There is no other alternative to amending the regulations 
at 10 CFR part 110 to reflect changing circumstances. This 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.

VII. Backfitting and Issue Finality

    The NRC has not prepared a backfit analysis for this final rule. 
This final rule does not involve any provision that would impose a 
backfit, nor is it inconsistent with any issue finality provision, as 
those terms are defined in 10 CFR chapter I.

VIII. Plain Writing

    The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal 
agencies to write documents in a clear, concise, and well-organized 
manner. The NRC has written this document to be consistent with the 
Plain Writing Act as well as the Presidential Memorandum, ``Plain 
Language in Government Writing,'' published June 10, 1998 (63 FR 
31885).

IX. 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 this final rule.

X. Paperwork Reduction Act

    This final rule does not contain a collection of information as 
defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) 
and, therefore, is not subject to the requirements of the Paperwork 
Reduction Act of 1995.

Public Protection Notification

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

XI. Congressional Review Act

    This final rule is a rule as defined in the Congressional Review 
Act (5 U.S.C. 801-808). However, the Office of Management and Budget 
has not found it to be a major rule as defined in the Congressional 
Review Act.

List of Subjects in 10 CFR Part 110

    Administrative practice and procedure, Classified information, 
Criminal penalties, Exports, Incorporation by reference, Imports, 
Intergovernmental relations, Nuclear energy, Nuclear materials, Nuclear 
power plants and reactors, Penalties, Reporting and recordkeeping 
requirements, Scientific equipment.

    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:  Atomic Energy Act of 1954, secs. 11, 51, 53, 54, 57, 
62, 63, 64, 65, 81, 82, 103, 104, 109, 111, 121, 122, 123, 124, 126, 
127, 128, 129, 133, 134, 161, 170H, 181, 182, 183, 184, 186, 187, 
189, 223, 234 (42 U.S.C. 2014, 2071, 2073, 2074, 2077, 2092, 2093, 
2094, 2095, 2111, 2112, 2133, 2134, 2139, 2141, 2151, 2152, 2153, 
2154, 2155, 2156, 2157, 2158, 2160c, 2160d, 2201, 2210h, 2231, 2232, 
2233, 2234, 2236, 2237, 2239, 2273, 2282); Energy Reorganization Act 
of 1974, sec. 201 (42 U.S.C. 5841);

[[Page 55479]]

Administrative Procedure Act (5 U.S.C. 552, 553); 42 U.S.C. 2139a, 
2155a; 44 U.S.C. 3504 note.
    Section 110.1(b) also issued under 22 U.S.C. 2403; 22 U.S.C. 
2778a; 50 App. U.S.C. 2401 et seq.


0
2. In Sec.  110.2, revise the definition of Deuterium to read as 
follows:


Sec.  110.2  Definitions.

* * * * *
    Deuterium means deuterium and any deuterium compound, including 
heavy water, in which the ratio of deuterium atoms to hydrogen atoms 
exceeds 1:5000; and deuterium for nuclear end use means deuterium and 
any deuterium compound, including heavy water, in which the ratio of 
deuterium atoms to hydrogen atoms exceeds 1:5000, that is intended for 
use in a nuclear reactor. Export of deuterium and deuterium compounds, 
including heavy water, for non-nuclear end use is regulated by the 
Department of Commerce.
* * * * *


0
3. In Sec.  110.9, revise paragraph (d) to read as follows:


Sec.  110.9  List of Nuclear Material under NRC export licensing 
authority.

* * * * *
    (d) Deuterium for nuclear end use.
* * * * *


0
4. Revise Sec.  110.24 to read as follows:


Sec.  110.24  General license for the export of deuterium for nuclear 
end use.

    (a) A general license is issued to any person to export to any 
country not listed in Sec.  110.28 or Sec.  110.29:
    (1) Deuterium and deuterium compounds (other than heavy water) for 
nuclear end use in individual shipments of 10 kilograms or less, not to 
exceed 200 kilograms per calendar year to any one country; and
    (2) Heavy water for nuclear end use in individual shipments of 50 
kilograms or less, not to exceed 1,000 kilograms per calendar year to 
any one country.
    (b) A general license is issued to any person to export to any 
country listed in Sec.  110.29:
    (1) Deuterium and deuterium compounds (other than heavy water) for 
nuclear end use in individual shipments of 1 kilogram or less, not to 
exceed 5 kilograms per calendar year to any one country listed in Sec.  
110.29; and
    (2) Heavy water for nuclear end use in individual shipment of 5 
kilograms or less, not to exceed 25 kilograms per calendar year to any 
one country listed in Sec.  110.29.

0
5. In Sec.  110.40, revise paragraph (b)(5)(iii), redesignate paragraph 
(b)(5)(iv) as paragraph (b)(5)(v), and add new paragraph (b)(5)(iv) to 
read as follows:


Sec.  110.40  Commission review.

* * * * *
    (b) * * *
    (5) * * *
    (iii) 250 kilograms of source material;
    (iv) 250 kilograms of heavy water for nuclear end use; or
* * * * *


0
6. In Sec.  110.41, revise paragraph (a)(4), redesignate paragraphs 
(a)(5) through (a)(10) as paragraphs (a)(6) through (a)(11), and add 
new paragraph (a)(5) to read as follows:


Sec.  110.41  Executive Branch review.

    (a) * * *
    (4) More than 3.7 TBq (100 Curies) of tritium;
    (5) Deuterium for nuclear end use, other than exports of deuterium 
to Canada;
* * * * *

0
7. In Sec.  110.42, revise paragraph (b) introductory text 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 for nuclear end use and nuclear grade graphite for nuclear 
end use is governed by the following criteria:
* * * * *


Sec.  110.54  [Amended]

0
8. In Sec.  110.54(a)(1), add the phrase ``for nuclear end use'' after 
the word ``deuterium'' wherever it appears.


0
9. In Sec.  110.70, revise paragraph (b)(3) to read as follows:


Sec.  110.70  Public Notice of receipt of an application.

* * * * *
    (b) * * *
    (3) 10,000 kilograms or more of heavy water for nuclear end use. 
(Note: Does not apply to exports of heavy water to Canada for nuclear 
end use.)
* * * * *

    Dated: September 21, 2021.

    For the Nuclear Regulatory Commission.
Margaret Doane,
Executive Director for Operations.
[FR Doc. 2021-21548 Filed 10-5-21; 8:45 am]
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