[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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