ML20024H358
| ML20024H358 | |
| Person / Time | |
|---|---|
| Issue date: | 05/22/1991 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| References | |
| REF-10CFR9.7 M910521B, NUDOCS 9106030134 | |
| Download: ML20024H358 (10) | |
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NUCLE AR REGULATORY COMMISSION REFER TO:
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May 22, 1991 un g e or im iC R[ T AHY MEMORANDUM FOR:
William C. Parler, Genera % unsel I
FROM:
Samuel J.
Chilk, Secreta,
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SUBJECT:
STAFF REQUIREMEllTS - AFFM RMI FION/DI SCUSSION AND VOTE, 3:30 P.M.,
TUEQA MAY 21, 1991, COMMISSIONERS' CONFERENCE R OM, ONE WHITE FLINT NORTH, ROCKVILLE, MARYLAND (OPEN TO PUBLIC ATTENDANCE)
I.
SECY-91-136 - Return of Topaz II Reactor Systen to the Soviet Union The Commission, by a 4-0 vote, approved a final rule (as attached) which amends its regulations pertaining to the import and export of nuclear equipment and material to permit the return to the Soviet Union of the Topaz II Reactor System.
This action permits the export of the Topaz II, which is owned by the Government of the USSR, without issuance of a license by the NRC.
Commissioner Curtiss noted that he believes that the Commission should have established a date certain by which the Topaz II will be returned to the USSR.
His comments are attached.
The Federal Register Notice should be revised as noted, reviewed by the Regulatory Publications Branch, and returned for signature md publication.
(OGC)
(SECY Suspense:
ASAF)
Attachments:
As stated i
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Chairman Carr Commissioner Rogers Commissioner Curtiss Commissioner Remick EDO GPA I
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i Nuclear Regulatory Commission 10 CFR PART 110 Return of Topaz Reactor to the Soviet Union AGENCY: Nuclear Regulatory Comanssion AC110ft:
Final Rule
SUMMARY
The U.S. Nuclear Regulatory Commission is amending its regulations pertaining to import and export of nuclear equipment and material to permit the return to the Union of Soviet Socialist Republics (USSR) of the Topaz 11 Reactor System, which was imported into the United States pursuant to an import license issued by the NRC on January 4, 1991.
This action permits thc export of Topaz 11, which is owned by the Government of USSR, without issuance of a license by the NRC.
EFFECTIVE DATE:
(date of publication)
FOR FURTHER INFORMATION CONTACT: Joseph F. Scinto or Joanna M. Becker, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, D.C.
20555; Telephone (301) 492-1740.
SUPPLEMENTARY INFORMATION:
In January 1991, the Topaz 11 Reactor, System, a space reactor developed and owned by the USSR, was imported into the U.S. under an NRC import license, at the behest of the Department of Defense (D00), for exhibit at a Space Nuclear Power Symposium in Albuquerque, N.M. and inspection
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I and study by 000.
The reactor was imported without fuel, coolant or moderator and is non operating.
It is possessed in the United States by Sandia National Laboratory, a prime contractor of the Ocpartment of Energy exempt from facility license requirements by NRC regulations in 10 C.F.R. 9 $0.11.
The Topaz 11 Reactor System is, in the United States, subject to the provisions of those sections of the Atomic Energy Act applicable to utilization facilities, including Sections 101 and 104.
Section 101 reads as follows:
Sec.101.
License Required. -
It shall be unlawful, except as provided in section 91, for any person within the United States to transfer or receive in interstate commerce, manufacture, produce, transfer, acquire, possess, use, import, or export any utilization or production facility except under and in accordance with a license issued by the Commission pursuant to section 103 or 104.
Section 104d. provides, in pertinent part:
Sec. 104 Medical Theraov and Research and Development d.
No license under this section may be given to any person for activities which are not under or within the jurisdiction of the United States, except for the export of production or utilization facilities under terms of an agreement for cooperation arranged pursuant to section 123 or except under the provisions of section jng,.....
Section ll.cc. of the Atomic Energy Act of 1954, as amended, defines
" utilization facility", in pertinent part, as any equipment or device, except an atomic weapon, determined by rule of the Commission to be capable of making use of
I special nuclear material in such Quantity as to be of g
significance to the comon defer.se and security, or in such a manner as to affect the health and safety of the public, or peculiarly adapted for making use of atomic energy in such quantities as to be of significance to the common defense and security or in a manner as to affect the health and safety of the public..
Commission regulations in 10 CIR 50.2 define " utilization f acility" as any nuclear reactor other than one designed or used primarily for the formation of plutonium cr U-233.
Commissicn regulations in 10 CFR 110.2 define " utilization f acility" as any nuclear reactor, "other than one that is a production facility, and the following rajor components of a nuclear reactor.
Even though presently unfueled, the Topar 11 Reactor is a reactor peculiarly adapted to making use of atomic energy and was imported under NRC import license, fio. IR 90002, issued January 4, 1991.
That license contained a condition to the effect that it would "become effective only upon written acknowledgement, by an authorized represent'ative of the Union of Soviet Socialist Republics, that any export from the United States of the TOPAZ 11 Peactor Systen must meci the requirements of the U.S. Atomic Energy Act of 1954, as amended. Under the law, at present, these requirements include the need for an Agreement for Cooperation in the Peaceful Uses of Atomic Energy."
The authorized representative of the USSR ackncaledged this condition.
There is currently no such Agreement for Cooperation. However, the Soviet agency which developed, and owns, the Topaz 11 Reactor System desires its return to the Soviet Union.
Although capable of making use of special nuclear material and peculiarly
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adapted for making use of atomic energy, taking into account the absence of fuel, moderator or coolant, the intended short stay and limited use as a moael f or exhibition purposes in the United States, and its return in the near future to the country of origin, the Commission has determined that, in connect t' with the export of the dev'ce, the Topaz 11 Reactor System imported under NPC License
- 40. IR90002 is not a " utilization facility" and is amending tt-def 'ition of that term in 10 CfR 110.2.
Thus, this device may be exported w;thou. issuance of a Commission export license.
Since this matter involves a device which is the praperty of the Soviet Gove.rnment transferred for exhibition purposas to the Department of En2rgy and involves a matter of interest to the Department of Defense and the Department of State, the Commission has determined that this amendment involves a foreign aff airs function of the United States. Thus, the notice and comment provisions of the Administrative Frocedure Act do not apply, pursuant to 5 USC 553(a)(1).
Environmental impact: Cateaorical Exclusion The NRC has determined that, pursuant to 55 51.10 and 51.22(c)(1) of this
- chapter, the amendments to Part 110 which follow requira neither an environmental impact statement nor an environmental assessment.
f.y erwork Reduction Act State ent l
This final rule does not contain a new or amended information collection i
requirement subject to the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 g1 I
5-itL ).
[xisting requirements were approved by the Of fice of Management and Evoget under approval number 3150-0036.
Pequlatory Analylli:
Adoption af these amendments is necessary in order to enable return of the Tcpaz 11 Reactor System to the Soviet Union.
No other NRC regulatory actions or alternative actions by other agencies, to the best of the Commission's knowledge, address this matter nor, in view of the desired time frame, are any alternative courses of action feasible.
It is not expected in result in any increased regulatory burden.
Pequlatgry flex _ibilit y Cert i ficat ion As required by the Regulatory flexibility Act (5 U.S.C.
605(b)), the Commissf on certifies that this rule does not have a significant number of small entities. The final rule does not impose additional obligations on the public.
Backfit Analysis The NRC has determined that the backfit rule,10 CFR 50.109, does not apply to this final rule, and, therefore, a b )kfit analysis is not required for this final ruie because these amendments do not involve any provisions which would impose backfits as defined in 1.0 CFR 50.109(a)(1).
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+6-List of_Subh ets in 10 CFR Part 110 l
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Administrative practice and procedures, Classified info ntion Criminal penalty, Export, import, incorporation by reference, Intergovernmental relations.
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Nuclear materials, Nuclear power plants and reactors, Reporting and recordkeeping l
requirements, Scientific equipment.
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f or the reasons set out in the f.reamble and under the authority of the l
Atcmic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, t
as amended, and 5 U.S.C.
552 and 553, the NRC is adopting the following j
amendments to 10 CFR Part 110.
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- 1. The authority citation for Part 110 cont.inues to read as follows:
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l AUTHORITY: Secs. 51, 53, 54, 57, 63, 64, 65, 81, 82, 103, 104, 109, Ill, i
126, 127, 128, 129, 16), 181, 182, 18.2, 187, 189, 68 Stat. 929, 930, 931, j
932, 933, 936, 937, 948, 953, 954, MS, 956, as amended (42 U.S.C. 2071, i
2073, 2074, 2077, 2092-2095, 2111,1u'12, 2133, 2134, 2139, 2139a, 2141, 2154-2158, 2201, 2231 2233, 2237, 2;cs); sec. 201, 88 Stat.1242, as amended (42 U.S.C. 5841).
Section 110.l(b)(2) 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 (U.S.C. 2074).
Section s
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).
3ections 110.80-110.113 also issued under 5 U.S.C. 552, 554.
Sections 110.30 110.35 also issued under 5 U.S.C. 553.
For the purposes of sec. 223, 68 Stat. 958, as amended (42 0,S.C. 2273);
%f 110.20 110.29,-110.50, and 110.120-110.129 also issued under secs. 161 b and 1,-68 Stat. 948, 949, as amended (42 U.S.C. 2201 (b) and (i); and 55 110.7a and 110.53 are also issued under sec.161(o), 68 Stat. 950, as amended (42 U.S.C. 2201(o)).
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The definition of " utilization facility" in s 110.2 is amended to read as
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follows:
s 110.2 Definitions
{
As used in this part,
" Utilization facility" means any nuclear reactor, other than one that is a production facility, and the following m:jor components of a
=
nuclear reactor:
(1)
Pressure vessels designed to contain the core of a nuclear reactor:
(2) Primary coolant pumps; (3) fuel charging or discharging machines; and d)
(4) Lontrol rods.
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A utilization facility does not include the steam turbine generator portion of e nuclear power plant. [utilizationfacilitydoesnotinclude tha Topaz 11 Rer r System owned by the Union of Soviet Socialist Republics and imported into the United States pursuant to NRC License No.
3 IR90002, issued January 4, 1991.
0 3.
Section 110.5 is amended to read as follows:
i s 110.5 Licensina recuirements Except as provided under Subpart B and the definition of utilization facility in s 110.2 of this part, no person may export any nuclear
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. <f equipment or material listed in @ 110.8 and @ 110.9, or import any nuclear equipment or material listed in @ 110.9a, unless authorized by a general or specific license issued under this part.
Dated at Rockville, MD, this day of May, 1991.
For the Naclear Regulatory Commission L
Samuel J. Chilk, Secretary of the Commission b
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I Commiccioner Curtiss' comments on SECY-91-136:
Based upon the assurances frcm the office of General Counsel that there ale no precedential ramifications, either domestic or international, of the approach that the staff has recommended in the subject SECY paper, I have no objection to ruch an approach, subject to the understanding that the Department of State will assume jurisdiction over the Topa II device forthwith and arrange for return of the device to the Soviet Union by a date certain.
In this regard, given the reliance that the staff's interpretation places on the fact that the device will remain in this co-ntry for a " limited time" and that return to the Soviet Union is " imminent", I believe that it is important to specify that date as a condition of whatever action we take on this matter.'
Additionally, in view of the novel legal theory that is being advanced in support of the staff's recommendation,' as well as the fact that the action will become effective without an opportunity for public comment, I believe it would be prudent to consult with the relevant Congreccional oversight committees on the approach that is being proposed.
Additional minor editorial comments are attached.
t Under the approach recommended by the staff, if the device were to remain in the country beyond that period of time, I assume an export license would be required.
2 Looking to the elements of the definition of " utilization facility" in Section ll.cc. of the Atomic Energy Act of 1954, as amended, the Commission would assume that the return of the TOPAZ device to the Soviets will occur in such a short time period that the device could not be made operational in a manner that could affect the health and safety of the public in tne United States.
In addition, since the device would be returned to its original designer and owner, the Commission would assume that the return would not be of significance to the common defense and Jecurity of the United States.
These assumptions, in turn, wculd lead the Commission to conclude that the TOPAZ device need not be defined as a utilization facility for purposes of its return to the Soviets.
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