ML20040G516
| ML20040G516 | |
| Person / Time | |
|---|---|
| Issue date: | 12/04/1981 |
| From: | Dircks W NRC OFFICE OF THE EXECUTIVE DIRECTOR FOR OPERATIONS (EDO) |
| To: | |
| Shared Package | |
| ML20040G503 | List: |
| References | |
| REF-10CFR9.7, TASK-RIA, TASK-SE SECY-81-679, NUDOCS 8202160205 | |
| Download: ML20040G516 (13) | |
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December 4, 1981 RULEMAKING ISSUE sEcv-81-679 (Affirmation) l For:
The Comissioners From:
William J. Dircks Executive Director for Operations
Subject:
AMENDMENT TO 10 CFR PART 110:
EXPORT OF IAEA SAFEGUARDS SAMPLES
Purpose:
To obtain Commission approval for publication in effective form of an amendment to 10 CFR Part 110 implementing an obligation from the US/IAEA Safeguards Agreement.
Discussion:
On July 29, 1980,NRC published in the FEDERAL REGISTER a final rule adding a new Part 75 and amending Parts 40, 50, 70 and 150 of Title 10, Code of Federal Regulations.
Part 75 and the conforming amendments established the primary means by which the US/IAEA Safeguards Agreement (the Agreement) will be implemented with respect to NRC and Agreement State licensees.
The purpose of the proposed amendment to Part 110 (Enclosure A) is to facilitate certain safeguards. activities, required by the Agreement,which will involve the export of IAEA safeguards samples of special nuclear material from some facilities designated by the IAEA for the application of safeguards.
An integral part of the safeguards approach for bulk handling facilities under IAEA safeguards is the destructive analysis (e.g., mass spectrometry and chemical titration) of representa-tive samples drawn from the facility's inventory. This analysis is necessary to verify the element and isotopic content of a representative portion of the facility's inventory in order to establish confidence in the facility's reported inventory.
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Contact:
David A. Myers, IP (49-28155)
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e The Commissioners 2
Discussion:
(Commissioners should note that such material sampling and (Continued) analysis is not normally included in the IAEA safeguards approach for most types of reactors. At reactor facilities and/or counting discrete items.)primarily upon identifying inventory verification is based Article 73 of the Agreement enables the IAEA to make arrange-ments with the U.S. for the shipment of samples taken for the Agency's use. Consistent with this provision, H 75.42(e)(1) requires each licensee, at the request of an IAEA inspector, to:
Ship samples taken for the -IAEA's use in accordance with applicable packaging and export licensing regulations, by the method of carriage and to the address specified by the inspector.
On September 25,1980, the staff requested Executive Branch views regarding an amendment to Part 110 to permit the export and import of nuclear material, pursuant to the US/IAEA Safe-guards Agreement, under general license. The Executive Branch response of June 12,1981 (Enclosure B) states, inter alia, that while favorable Executive Branch views were conveyed on February 10, 1981 with respect to certain proposed amendments, including a proposed general license to permit the export of up to 100 grams per year of special nuclear material (SNM) in the form of IAEA safeguards samples, the Executive Branch "has given further consideration...and concluded that, in view of the special circumstances surrounding such shipments for IAEA safeguards use, it would be appropriate to exempt the export of gram quantities of special nuclear material for use as IAEA safeguards samples from the requirements of a license under the authority provided in section 57d. of the Atomic Energy Act as amended," and "...that the requirements of section 57d. are met...". Since that time, the Executive Branch has provided additional views (Enclosure C) clarifying that the quantity of material to be exempted under section 57d. should not be 100 grams of special nuclear material but rather "100 grams of contained plutonium, U-233 or U-235." In addition, the Executive Branch has clarified that the finding of non-inimicality would apply equally to exports of safeguards samples to any authorized IAEA facility (i.e., to the IAEA's Network of Analytical Laboratories).
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The Comissioners 3
Discussion:
The staff is in agreement with the Executive Branch that, (Continued) in view of the special circumstances involved, an exemption from the requirements for a license would be appropriate.
As the Commission is aware, there are various options available in the consideration of exports of nuclear material, including whether the intended end-use of the material is judged-to be nuclear or non-nuclear in nature.
(The Comission has, in the past, concluded that exports of nuclear material for a non-nuclear end-use are. not required to meet the criteria in sections 127 and 128 of the Atomic Energy Act.) The staff originally suggested to the Executive Branch that the end-use of the material in question was non-nuclear. This suggestion was based upon an understanding that the samples would undergo destructive analysis techniques such as mass spectrometry and chemical titration. The staff has been infomed that not all Executive Branch agencies agreed with the ch1racterization of these analyses as non-nuclear and, although the.xecutive c
Branch views are not explicit on this subject, the staff has not based its analysis of such exports on the understanding that the end-use of the samples is non-nuclear. Thus,we have reviewed the export in tems of the criteria in sections 127 and 128 and included our analysis in Enclosure D.
Exempting exports of IAEA sdfeguards samples from the requirement for a license will avoid (1) a burden on licensees who otherwise would have to file. applications for licenses; (2) possible delays which might result from NRC processing of a license application; and (3) the problems which would arise if the operator of a safeguarded facility did not apply promptly for a license.
In addition, exempting these exports from the requirement for a license is consistent with the provision in section 122 of the Atomic Energy Act, as amended, that the Comission "give maximum effect to the policies contained in any international arrangement" and with NRC's policy of minimizing the burden on licensees of implementing the Agreement.
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Conclusion:==
In accordance with sections 57d. and 54c. of the Atomic Energy Act, the staff has concluded that exemption from the require-ments for a license for the export of IAEA safeguards samples would not. be inimical to the comon defense and security, and would not constitute an unreasonable risk to the public health and safety (Enclosure D).
e The Commissioners 4
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Conclusion:==
The staff has concluded that the criteria in section 127 of (Continueo) the Atomic Energy Act, or their equivalent, are met and notes that sectio,n 128 is not applicable (Enclosure D).
The staff also notes that because this amendment involves the foreign affairs functions of the United States, notice of proposed rulemaking and public procedures thereon are not required by section 553 of Title 5 of the United States Code.
Recornendation:
That the Commission:
1.
Find:
a.
Pursuant to sections 57d. and 54c. of the Atomic Energy Act, that exemption from the requirements for a license for the export of IAEA safeguards samples would not be inimical to the common defense and security, and would not constitute an unreasonable risk to the public health and safety.
b.
That the criteria in section 127 of the Atomic Energy Act, or their equivalent, are met by the exemption provided in Enclosure A.
2.
Approve publication in the FEDERAL REGISTER in effective form of the amendment to Part 110 set forth in Enclosure A.
3.
Approve the staff's conclusions set forth in Enclosure E, which provides the analysis called for by the Periodic and Systematic Review of the Regulations. The criteria used were derived from Executive Order 12044 which was rescinded on February 17, 1981 by Executive Order 12291 (see memorandum i
from Bickwit to the Commission, February 27, 1981). This approach is proposed as an interim procedure until the staff i
can make recommendations and the Commission decides what to do in response to Executive Order 12291.
4.
Note:
l a.
Section 128 of the Atomic Energy Act is not applicable to the exemption in Enclosure A.
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b.
The Executive Branch has provided favorable Executive Branch views in Enclosure B (clarified in Enclosure C).
c.
Pursuant to section 4 of the Administrative Pr',riure Act and 9110.135(b), the amendment to Part 110 set orth in
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Enclosur'e A will be published in the FEDERAL REGISTER, Effective upon publication.
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The Comissioners 5
l Recommendation:
d.
Pursuant to 9 51.5(d) of the Comission's regulations, (Continued) neither an environmental impact statement nor a negative declaration need be prepared in connection with the amendment since the amendment is nonsubstantive and insignificant from the standpoint of environmental impact and,further, would be consistent with the Comission's decision in the Philippine reactor and fuel export licensing cases.
e.
A separate value-impact analysis has not been prepared since the amendment will not result in any increased requirements or expense to the public.
f.
The final rule contains no new or amended requirements for recordkeeping, reporting, plans or procedt.Jes, applications, or any other information collection subject to the Papenvork Reduction Act of 1980.
g.
The Subcomittee on Nuclear Regulation of the Senate Committee on Environment and Public Works; the Subcomittee on Energy and the Environment of the House Comittee on Interior and Insular Affairs; the Subcomittee on Energy Conservation and Power of the House Comittee on Energy and Comerce; the Subcommittee on Environment, Energy and Natural Resources of the House Committee on Government Operations; the House Committee on Foreign Affairs; the Subcomittee on Arms Control, Oceans, International Operations, and Environ-ment of the Senate Committee on Foreign Relations; the Subcomittee on Energy, Nuclear Proliferation and Government Processes of the Senate Comittee on Governmental Affairs; and ranking minority members of those subcommittees will be informed by letter such as Enclosure F.
h.
The FEDERAL REGISTER notice of the effective rule will be distributed directly to affected licensees.
William J. Dircks Executive Director for Operations
Enclosures:
See page S
The Commissioners 6
Enclosures:
A - Draft FEDERAL REGISTER NOTICE B - Ltr of June 12, 1981 from the Department of State to JRShea C - Ltr of August 10, 1981 from the Department of State to MRPeterson D
" Analysis of the Findings Required 1
to Exempt the Export of Safeguards Samples from the Requirements for a License" E - Periodic and Systematic Review Analysis F - Draft congressional ltr Commissioners' comments or consent should be provided directly to the Office of the Secretary by c.o.b. Thursday, December 23, 1981.
Commission Staff Office comments, if any, should be submitted to the Commissioners NLT December 16, 1981, with an information copy to the Office of the Secretary.
If the paper is of such a nature that it requires additional time for analytical review and comment, the Commissioners and the Secretariat should be apprised of when comments may be expected.
This paper is tentatively scheduled for affirmation at an open meeting during the week of January 4, 1982.
Please refer to the appropriate Weekly Commission Schedule, when published, for a specific date and time.
DISTRIBUTION l
Commissioners Commission Staff Offices Exec Dir for Operations l
Exec Legal Director Secretariat j
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ENCLOSURE A 5
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s NUCLEAR REGULATORY COMMISSION 10 CFR Part 110 EXPORT OF SAFEGUARDS SAMPLES PURSUANT TO THE US/IAEA SAFEGUARDS AGREEMENT AGENCY:
, Nuclear Regulatory Commission.
ACTION:
Final Rule.
SUMMARY
The Nuclear Regulatory Commission is amending its qegulations to exempt the export of IAEA safeguards samples from the requirements for a license.;. This amendment will permit the United States to implement that portion of th'e US/IAEN Safeguards Agreement which involves the. export of IAEA safeguards samples of special nuclear material ' rom facilities designated by the IAEA for the application of safeguards.
The amendment will permit the export of these samples. without an export license, by NRC licensees, Agreement State licensees, and the -U.S. Department of Energy.
s EFFECTIVE DATE: [Date of Publication.]'
FOR FURTHER INFORMATION CONTACT:
Joanna M. Becker Office of the Executive Legal Director U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (301) 492-7630; or J. Christian Kessler Office of International Programs U.S. Nuclear Regulatory Commission Washington, D.C.
20555 (301) 492-8155 Y
2 SUPPLEMENTARY INFORMATION:
The US/IAEA Agreement for the Application of Safeguards in the United States (the Agreement) provides for the application of IAEA safeguards to selected U.S. nuclear facilities.
On July 29, 1980, the Nuclear Regulatory Comission published in the FEDERAL REGISTER (45 FR 50705) a final rule adding a new Part 75, and amending Parts 40, 50,70 and 150 of the Conrnission's regulations.
Part 75 and the conforming amendments establish the primary means by which the Agreement will be implemented with respect to NRC and Agreement State licensees.
The purpose of the following amendment to Part 110 is to facilitate certain safeguards activities, required by the Agreement; which will involve the export of IAEA safeguards samples of special nuclear material from those facilities designated by the IAEA for the application of safeguards.
An integral part of the safeguards approach at bulk handling facilities under IAEA safeguards is the destructive analysis of representative samples, drawn
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from the facility's inventory.
This analysis is necessary to verify the element and isotopic content of a representative portion of the facility's 1
inventory in order to establish confidence in the facility's reported inventory.
This material sampling and analysis is not nonnally included in the IAEA l
safeguards approach for most types of reactors.
l The total annual quantity of safeguards samples is anticipated to be 100 grams l
or less of contained fissile material (Pu, U-233 and U-235) per facility.
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3 While it would be administratively possible for each NRC and Agreement State licensee selected by the IAEA for the application of safeguards and for the Department of Energy (DOE), to apply for a specific license to export IAEA safeguards samples, exempting these exports from the requirements for a license will avoid (1) an administrative burden on licensees or DOE who other-wise would have to file applications for specific licenses; (2) possible delays which might result from NRC processing of specific license applications; and (3) the problems which would arise if the operator of a sa eguarded facility did not apply promptly for a specific license.
Exempting these exports from the requirements for a license is consistent with the provision in section 122 of the. Atomic Energy Act, as amended, that the Commission "give maximum effect to the policies contained in any international arrangement" and with NRC's policy to minimize the burden on licensees of implementing the Agreement.
Pursuant to sections 57d. and 54c. of the Atomic Energy Act of 1954, as amended, the Commission has concluded that exemption from the requirements for a license for the e'xport of IAEA safeguards samples is not inimica'l to the common defense and security, and does not constitute an unreasonable risk to the public '
health and safety.
Furthermore, the amendment is consistent with~other provisions of the Atomic Energy Act, as amended by the Nuclear Nonproliferation Act of 1978, with the Treaty on the Nonproliferation of Nuclear Weapons, and with the obligations of the United States under the US/IAEA Safeguards Agreement.
4 The Comission has not prepared an environmental impact s'tatement or a negative declaration since the' amendment is non-substantive and insignificant from the standpoint of environmental impact.
The final rule contains no new or amended requirements for recordkeeping, reporting, plans or procedures, applications, or any other type of information collection. subject to the Paperwork Reduction Act of 1980.
Since the amendment will not result in any increased requirements or expense to.
the public, the Commission has not prepared a separate value-impact analysis.
Based on preliminary estimates, the amendment should reduce the Nmber of specific export licenses required for implementation of the US/IAEA Safeguards Agreement by approximately Elicenses per bulk handling. facility per year, j
Licensees should note that nothing in the amendment is intended to relieve any person from complying with~ other U.S. government agencies' regulations applicable to exports under their authority, any pertinent requirement in Parts 71 and 73 of litle 10 of the Code of Federal Regulations, or any Commission order pursuant to se: tion 201(a) of the Energy Reorganization Act of 1974, as amended, pertaining to shipment of plutonium by air.
i Because this amendment involves the foreign affairs fur.ctions of the United States, notice of proposed rulemaking and public procedure thereon are not required by Section 553 of Title 5 of the United States Code. Since the amendment grants an exemption from regulations currently in effect, it will become effective without the customary 30-day notice.
Pursuant to the Atomic Energy Act of 1954, as amended, the Energy Reorganization Act of 1974, as amended, and sections 552 and 553 of Title 5 of the United States Code, the following amendment to 10 CFR Part 110 is' published as a document subject to codification.
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5 PART 110 - EXPORT AND IMPORT s
0F NUCLEAR. EQUIPMENT AND MATERIAL 1.
The authority citation for Part 110 is revised to read as follows:
Authority:
51, 53, 54, 57, 62, 63, 64, 65, 81, 82, 103, 104, 109, 111,
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126, 127, 128, 129, 161
- b. and.i.,181, 182, 183, 187, 189, Pub. L.83-703, 68 Stat. 929, 930, 931, 932, 933, 936,:937, 948, 954, 955, 956; Pub. L.88-489, 78 Stat. 603, 604; Pub. L.91-560, 84 Stat. 1472; 70 Stat.
1069-1071, Pub. L.85-256, 71 Stat. 579; Pub. L.87-615, '76. Stat. 409; Pub. L.93-377, 88 Stat. 473, 475, Pub. L.95-242, 92 StatT 125,126, 131-139, 141 (42 U.S.C. 2071,2073, 2074, 2077, 2092-2095, 2111, 2112, 2133, 2134, 2139, 2139a, 2141, 2154-2158, 2201 (b); and (i), 2231-2233, 2237, 2239); Sec. 201, 202, Pub. L.93-438,. 88 Stat.1242, Pub. L. 94-79', 89'
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. _...._ Stat.413,_414_(4203.C'.5841,5842).],
Section 110.13 also issued under Sec. 122, Pub. L.83-703, 68 Stat. 939 (42 U.S.C. 2152)
Section 110.51 also issued under Sec.184, Pub. L.83-703, 63 Stat. 954; I-
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Pub. 'L.88-489, 78 Stat. 307._ (.42. U.S C.323)T._T_, _l Section 110.52 also issued under Sec.186; Pub. L.83-703, 58 Stat." 955
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(42 U.S.C. 2236).
For the purposes of sec. 223, Pub. L.83-703, 68 Stat. 958, Pub. L.90-190, 81 Stat. 578; Pub. L.91-161, 83 Stat. 445 (42 U.S.C. 2273):
55110.50 and 110.120-110.126 fl,soissuedunderSec.161i., Pub.L.83-703, r:.
68 Stat. 948 (42. U.S.C. 220I(ij).
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Section 110.53 also issued under Sec.161o., Pub. L.83-703, 68 Stat.
950, Pub. L.85-507, 72 Stat. 337 (42 U.S.C. 2201(o)).
Sections 110.80-110.113 also issued under 5 U.S.C. 552, 554.
Sections 110.130-110.135 also issued under 5 U.S.C. 553.
2.
A new 5110.13 is added to read as follows:
5110.13 Export of IAEA safeauards samoles.
Any person is exempt from the requirements for a license to export special v
nuclear material set forth in sections 53 and 54d. of the Atomic Energy Act and from the regulations in this part to the extent that the person exports special nuclear material in IAEA safeguards samples, if the samples are exported in accordance with 575.42(e)(1) of this chapter, or a comparable Department of Energy order, and are in quantities not exceeding a combined total of 100 grams of contained plutonium, U-233 and U-235 per facility per year. This exemption does not relieve any person from complying with Parts 71 or 73 of this chapter or any Commission order pursuant to section 201(a) of the Energy Reorganization Act of 1974 (42 U.S.C. 5841(a)).
Dated at Washington, D.C. this day of
, 1981.'~
For the Nuclear Rsgulatory Commission Samuel J. Chilk Secretary of the Commission
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ENCLOSURE B i
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