ML19296C993
| ML19296C993 | |
| Person / Time | |
|---|---|
| Issue date: | 04/20/1979 |
| From: | NRC OFFICE OF THE EXECUTIVE LEGAL DIRECTOR (OELD) |
| To: | |
| Shared Package | |
| ML19296C882 | List:
|
| References | |
| REF-10CFR9.7 SECY-79-283, NUDOCS 8002290189 | |
| Download: ML19296C993 (12) | |
Text
Enclosure C s
OELD LEGAL ANALYSIS OF AUTHORITY TO PERMIT EXPORT OF SPECIAL NUCLEAR MATERIAL OTHER THAN UNDER THE TERMS OF AN AGREEMENT FOR COOPERATION The subject draft amendments, among other things, provide a general license for export to any country except those on an embargoed list, of up to three grams of special nuclear material when contained in sensing components installed in instruments, or plutonium containing 80 per cent or more by weight of plutonium-238 when contained in heart pacemakers.
They also (in revised 5110.42) except from the requirement that exports of special nuclear material be made under the terms of an agreement for cooperation, proposed exports of (1) no more than three grams of special nuclear material; (2) plutonium containing 80 percent or more by weight of plutonium-238 and (3) 100 grams or less of special nuclear material which is diluted so that it is no longer usable for any nuclear activity relevant from the point of view of safeguards and is oracticably irrecoverable.
The question has arisen as to whether the Commission may permit export of special material, except plutonium-238, :other than under the terms of an agreement for cooperation without first exempting the special nuclear material from the' requirement for a license.--1/ 2/
Pertinent Provisions of the Act The pertinent subsections of the Atomic Energy Act (the Act) are 53a., 54b.,
54c., 57a., and 57d.
If Subsection 54a. of the Act appears clearly to authorize the Commission to issue a license to export plutonium-238 without an agreement for cooperation upon making a finding of non-inimicality to the common defense and security.
-2/ The effect of the enactment of the Nuclear Non-Proliferation Act of 1978 on the Commission's authority to issue a general license for export is considered in enclosure D.
8 002 200M Under Subsection 53a.:
The Commission is authorized (1) to issue licenses to transfer or receive in interstate commerce, transfer, deliver, acquire, possess, own, receive possession of or title to, import, or export under the terms of an aareement for cooperation arranced pursuant to section 123, special nuclear material.... ( Emphas1 s supplied. )
Subsections 54b. and c. of the Act provide:
b.
Notwithstandina the provisions of sections 123, 124, and 125, the Commission is authorized to distri-bute to any persons outside the United States (1) plutonium containing 80 per centum or more by weight of plutonium-238, and (2) other special nuclear material when it has, in accordance with subsection 57d., exempted certain classes or quantitites of such other special nuclear material or kinds of uses or users thereof from the reauirements for a license set forth in this chapter.
Unless hereafter otherwise authorized by law, the Commission shall be compensated for special nuclear material so distributed at not less than the Commission's published charges applicable to the domestic distribution of such material.
The -
Commission shall not distribute any plutonium contain-ing 80 per centum or more by weight of plutonium-238 to any person under this subsection if, in its opinion, such distribution would be inimical to the common defense and security.
The Commission may require such reports regarding the use of material distributed pursuant to the provisions of this subsection as it deems necessary.
(Emphasis supplied. )
c.
The Commission is authorized to license or other-wise permit others to distribute special nuclear material to any person outside the United States under the same conditions, except as to charges, as would be applicable if the material were distributed by the Commission.
(Emphasis supplied.)
Subsection 57a. provides:
a.
Unless authorized by a general or specific license issued by the Commission, which the Commission is authorized to issue pursuant to section 53, no person may transfer or receive in interstate commerce, transfer, deliver, acquire,
own, possess, receive possession of or title to, or import into or export from the United States any special nuclear material.
Subsection 57d. provides:
d.
The Commission is authorized to
- abli sh classes of special nuclear material and to exempt certain classes or quantities of special nuclear material or kinds of uses or users from the requirements for a license set forth in this section when it makes a finding that the exemption of such classes or quantities of special nuclear material or such kinds of uses or users would not be inimical to the common defense and security and would not constitute an unreasonable risk to the health and safety of the public.
(Emphasis supplied.)
Discussion of the Act The Atomic Energ;. Act of 1954, as amended, does not permit the issuance of a license to e owt special nuclear material other than under the terms of an agreement for cooperation except for: (1) plutonium contain-ing 80 percent or more by weight of plutonium-238, or (2) other special nuclear material when the Commission has, in accordance with subsection 57d. of the Act, exempted certain classes "from the requirements for a license set forth in this section," upon finding that the exemption would not be inimical to the common defense and security and would not constitute an unreasonable risk to the health and safety of the public.
Exemption "from the requirements for a license" is susceptible of two di fferent interpretations.
First, it could mean exemption from the statutory requirement to have a license in order +.o possess, use, transfer, export, etc. special nuclear material (any or all of those acti vi ties ).
Second, it could mean exemption from the statutory requirement to have a license or from any statutory requirement that must be met in order to obtain a license.
Under the first interpretation, the Commission would be required to exem, ', through rulemaking, the SNM from the requirement to have a license to permit export without an agreement for cooperation.
(The exemption could be from the requirement to have a license for domestic possession, use and transfer only, without exempting from the requirement 3/
of an export license. )-
Under the second interpretation, the Commis-sion could " exempt" certain exports from the agreement for cooperation requirement without issuing a general exemption from licensin3 The Act is not clear on the point.
1.
It could be argued, in support of the first interpretation, that subsection 57d., referenced in subsection 54b., authorizes exemptions from the requirements for a license set forth in "this section" and that the only requirement for a license in section 57 is that in subsection 57a., which prohibits transfer or receipt in interstate commerce, transfer, delivery, acquisition, ownership, possession, receipt of pcssession of or title to, or import into or export from the United States of any special nuclear material unless authorized by a general or specific license which the Commission is authorized to issue pursuant to section 53.
Subsection a. of section 3/ This distinction is reflected in subsection 54c. which authorizes the Commission to " license or otherwise permit others to distribute special nuclear material outside the United States under the same conditions, except as to charges, as would be applicable if the material were distributed by the Commission."
It may be noted that 10 CFR Part 40 exempts several forms of source material from the requirement to have a domestic license, but not from the requirement for an export license (840.13(b) and (c)).
. 53 authorizes the Commission to issue licenses to, among other things, export under the terms of an agreement for cooperation arranged pursuant to section 123.
If subsection 53a. is regarded as only authorizing issuance of licenses, subsection 57d. could then be read as referring only to the statutory requirement to have a license in subsection a.
On the other hand, subsection 53a. could also be read as imposing a requirement for an agreement for cooperation for the issuance of an export license, and section 57d. as referring to that statutory requirement through the reference to section 53 in subsection 57a.,
which would support the second interpretation.
2.
Subsection 54b., which sets out the conditions under which the Commission may permit export other than under an agreement for cooperation, refers to Commission authority to distribute to any person outside the United States, special nuclear material other than plutonium-238 when it (NRC or the AEC acting in its regulatory capacity) has, in accordance with subsection 57d., exempted certain classes or quantities of such material or kinds of uses or users thereof from the requirements for a license set for th "in this chapter." The chapter referred to is Chapter 6 of the Act, including section 53 as well as section 57.
If section 53a., which authorizes the Commission to issue a license to export under the terms of an agreement for cooperation, is viewed as imposing a statutory requirement rather than only granting authority to issue licenses, then the reference to the authority to exempt from the requirement for a license " set forth in this chapter," supports the view that subsection 57d. authorizes exemption from the requirement for an agreement for cooperation as well as from the requirement to have a license.
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, Under the latter interpretation, the Commission could exempt from the requirement for an agreement for cooperation, the export of special nuclear material without exempting the material from the requirement to be licensed.
3.
It could be argued that the second interpretation is somewhat more consistent with the view that the primary criterion for issuance of an export license is non-inimicality to the common defense and security, as reflected in the prohibition in subsection 54b.
against distribution that would be inimical to the common defense and security, the criterior: of no unreasonable risk to the public health and safety," being of limited relevance to export licensing.
This argument is not persuasive since subsection 57d. requires both findings whether the exemption be regarded as exemption from the requirement to have a license or from other statutory requirements.
4.
Subsection 54b., as noted above, treats plutonium-238 differently from other special nuclear material and permits its export without an agreement for cooperation upon a finding of non-inimicality to the common defense and security.
If the exemption "from the requirements for a license" in subsections 54b. and 57d. is inter-preted to include exemption from requirements needed to obtain a license as well as the requirement to obtain a license, then there would have been no need to treat plutonium-238 differently from other special nuclear material, since plutonium-238 could also be " exempted"
. from the requirement for an agreement for cooperation under such interpretation.
This is perhaps the strongest argument against the second interpretation.
Pertinent Provisions and Discussion of the Legislative History The legislative history is also ambiguous.
The AEC's letter transmitting the 1974 Omnibus Bill, which included amendments to the Atomic Energy Act to add subsection 57d. providing authority to exempt special nuclear material and to provide in section 54 for authority to export and permit others to export special nuclear material other than under an agreement for cooperation noted, with respect to the proposed exemption authority provided in subsection 57d., that the 1954 Act did provide authority to exempt source material and byproduct material from the requirements for a license and that:
The'se exemptions have enabled che unrestricted domestic use of certain products and quantities and in some instances, their export, after a determination by the Commission that the exemptions would not adversely affect the public health and safety or the common defense and security.
Many useful products have, by this means, been made generally available without adverse effects upon the public health and safety or the common defense and security, such as fire detectors and electron tubes incorporating byproduct material.
Developments in technology are expected to lead to the production and use of products and devices incorporating special nuclear material as a power source for which a specific or general license would not be necessary (for the ultimate user) for protection of the public health and safety and the common defense and security.
S,
In discussing particularly the anticipated use of such items as plutonium-powered cardiac pacemakers, other plutonium-powered batteries and fission chambers containing U-235, the letter stated:
Under the present provisions of the Act, persons possessing and using such devices would be re-quired to have an AEC (or agreement state) license, since the Commission has no statutory authority to permit the possession and use of special nuclear material except pursuant to a license (other than by the Department of Defense and certain Commission contractors).
In view of the small quantity of special nuclear material used in such devices, it is doubtful that a license would be necessary from the standpoint of protection of the public health and safety and the common defense and security.
In most applications, specific or general license conditions would be difficult to impose and enforce.
Thus, a primary concern of the Commission in proposing the addition of section 57d. to the Act was the need for authority to permit use of special nuclear material without a license.
The letter's discussion of the amendments to section 54 pertaining to export other than under the terms of an agreement for cooperation did not make a distinction with respect to the material tnat would be covered by the author-ity in section 54 (other than plutonium-238) from that in subsection 57d.
The letter stated:
The amendments to Section 54 of the Atomic Energy Act would permit the Commission to export, and to authorize export by others of special nuclear material in quantities or for classes of uses or users that had been exempted pursuant to Section 57 d. as amended, and of any quantity of plutonium containing 80 percent or more by weight of plutonium-238 other than under an agreement for cooperation.
_9_
With respect to exempted quantities or classes of uses or users of special nuclear material, the authority to authorize export other than under an agreement for cooperation would permit (but not require) the Commission to authorize transfer and use of such quantities or classes by persons exempted from licensing requirements on an inter-national basis as well as in the domestic area.
The letter also stated, with respect to proposed subsection 57d., that the Commission would be required, in exercising its exemption authority, to comply with the applicable provisions of the National Environmental Policy Act, including the requirement for oreparation of an environmental impact statement pursuant to section 102(2)(C) of that Act, insofar as the implementation constitutes a major Federal action significantly affecting the quality of the human environment.
The letter pointed out that the exemption authority would be exercised through rule making proceedings and that the environmental impact statement prepared in connection with such rule making proceedings would address, among other things, the cumulative environmental impact of the exemption of the class, quantity or use of the special nuclear material, including the question of ultimate disposal and the environmental impact associated with such disposal.
These statements in the letter were reflected in the report of the Joint Committee on Atomic Energy e.tc bill, cited supra, at p.10.
At that time, it was the policy of the Commission to prepare environmental impact statements in connection with rule making actions under Parts 30 and 40 to exempt quantities or forms of byproduct material and source material from the requirement to have a license.
Thus, this statement may be regarded as support for the first interpretation in that the exemption
. authority in subsection 57d. was intended to be authority to exempt special nuclear material from the requirements to have a license.
It could be argued, on the other hand, that the statements were made in the context of a discussion of exemption from domestic licensing requirements and are not dispositive as to whether Congress intended.the e-vmption authority to be confined to exemption from the requirement to have a license.
It was the Commission's position at that time that environmental impact statements were not required for the exports of nuclear materials.
In the report of the Joint Committee on Atomic Energy on the 1974 Omnibus Bill (H.R. Rep. No. 93-1155, 93d Cong., 2d Sess., June 26, 1974), the Committee noted the exemption authority then provided by the Atomic Energy Act for source and byproduct material in sections 62 and 81 respectively and that (p. 7):
Examples of useful products containing source or byproduct material which have been made generally available without adverse effects upon the public health and safety or the common defense and security include aircraft counter-weights, fire detectors, and various types of electron tubes.
Developments in technology liave produced and can be expected to continue to produce useful products and devices incorporating special nuclear material as a power source for which a specific or general license would not be necessary (for the ultimate user) for the protection of the public health and safety or the common defense and security.
The last sentence also seems to indicate that the Committee envisaged section 57d. as intended to provide an exemption from the statutory requirement to have a license and thus might be regarded as supporting the first interpretation.
In the discussion the amendments to section 54 of the Act, the Committee noted that (p. 6):
The amendments to Section 54 of the Atomic Energy Act would permit the Commission to export, and authorize export by others of special nuclear material in quantities or for classes of uses or users that had been exempted pursuant to Section 57 d. as amended, by section 3 of this bill, and of any quantity of plutonium contain-ing 80 percent or more by weight of plutonium-238 other than under an agreement for cooperation.
In the debate on the 1974 Omnibus Bill in the House, Congressman Price, then Chairman of the JCAE, in discussing the exemption authority in subsection 57d., said (120 Cong. Rec. H. 7506, Aug.1,1974):
Still another section would permit the AEC to exempt minimal quantities of special nuclear material from licensing requirements, as is the present practice for small amounts of source or byproduct material.
This would apply to such items as cardiac pacemakers powered by plutonium-238 batteries.
The AEC would be authorized to control such devices by licensing the manufacturers rather than each individual user.
In conclusion, the legislative history of the 1974 Omnibus Bill cannot be said to provide guidance on the scope of the Commission's authority in subsections 54c. and 57d.
Conclusion The terms of the Atomic Energy Act of 1954, as amended, and the legislative history are ambiguous and can be read as authorizing export licensing with-out an agreement for cooperation of plutonium-238 and either (1) only other special nuclear material that first had been exempted from the requirement
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to have a license pursuant to subsection 57d. for domestic activities or all activities or (2) any other special nuclear materia.1, upon making the findings specified in subsection 57d.
In light of the provision in section 54 of the Act for authority for the Commission to export or license or otherwise permit the export of plutonium-238 otner than under the terms of an agreement for cooperation without an exemption "from the requirements for a license," it would appear to be the better legal view that such exemption referred to is an exemption from the requirement to have a license - i.e., that the first interpretation is the better one.
There would be no need to treat plutonium-238 differently from other SNM if the exemption needed for other SNM meant an exemption from the requirement for an agreement for cooperation for export licenses.
On the other hand, cognizant Congressional Committees received copies of the 1otice of proposed rule making, which contained the amendments discussed tbove, and raised no question as to their legal basis.
Ia conclusion, while we believe the first interpretation to be the better or.e, there is a reasonably arguable basis for the second interpretation.
Under such circumstances, the Commission has discretion to take policy considerations, such as those discussed at pp. 4-5 of the staff paper, into account in resolving the ambiguities of the statutory provisions.
(Sutherland, Statutorv Construction (4th Ed. ),
8856.01-56.05).
It might be noted that none of the commenters on the proposed rule objected to the proposal to provide a limited exemption from the agreement for cooperation requirement.
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