ML20207T570
| ML20207T570 | |
| Person / Time | |
|---|---|
| Issue date: | 03/19/1987 |
| From: | Lewis S, Rutberg J NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | NRC COMMISSION (OCM) |
| References | |
| CON-#187-2841 NUDOCS 8703240140 | |
| Download: ML20207T570 (35) | |
Text
_ _ _ _ _ - - _ _
~
2f-Y/ ,
D0j s
I UNITED STATES OF AMERICA NUCLEAR REOULATORY COMMISSION N g$
~
1 BEFORE THE COMMISSION OfNb36 00 3hj ICB In the Matter of )
)
BRAUNKOllLE TRANSPORT, USA, ) Docket Nos. 11003919-22 ET AL ) License Application
) Nos. IU-87001-02
) Nos. ISNM-87003-04 )
)
In the Matter of )
)
ADVANCED NUCLEAR FUELS CORP. ) Docket No. 11003928
) License Application
) No. ISNM-87004
)
In the Matter of )
)
EDLOW INTERNATIONAL CO. ) Docket Nos. 11003929-31
) License Application
) Nos. 10-87006-07
) No. ISNM-87008 NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARINO Joseph Rutherg Deputy Assistant Oeneral Counsel Dk lk$h 070319 10-87003 PDR Stephen H. Lewis Senior Supervisory Trial Attorney March 19,1987 D307
J UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION DEFORE THE COMMISSION In the Matter of )
6
)
BRAUNKOllLE TRANSPORT, USA, ) Docket Nos. 11003919-22 ET AL ) License Appifcation
) Nos. 10-87001-02
) Nos. ISNM-87003-04
)
In the Matter of )
)
ADVANCED NUCLEAR FUELS CORP. ) Docket No. 11003928
) License Application
) No. ISNM-87004
)
In the Matter of )
)
EDLOW INTERNATIONAL CO, ) Docket Nos. 11003929-31
, ) License Application
) Nos. 1U-87006-07
) No. ISNM-87008 NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING l
Joseph Rutberg Deputy Assistant General Counsel 4
Stephen H. Lewis Senior Supervisory Trial Attorney ;
! March 19,1987 l
. ._-.__---....____.---.,..--._____._----,-----.-,_..,..._-.--.-_4_ - . . _ _ . - . . - -- -
, ('
.. - -s, 1
TADLE OF OCNI1NT Page, m
I. INIHtT10CTI N .................................................. 1s II. D I SQJSS IGi . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. I nt erest arat S t andirut . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Interes t and Starxiing of Pet i t ioners . . . . . . . . . . . . . . . . . . . . . 6
- 1. 'Ihe Congress ional Pet i t ioners . . . . . . . . . . . . . . . . . . . . . . . 6
- 2. 'Ihe Inst i tut ional Pe t i t ioners . . . . . . . . . . . . . . . . . . . . . . . 11 III. DISOtETI N 7pa rm ............................*............ 12 IV. GNCLUS IN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 i
I s
1 O
1 e
I
]
1 4
i
(
d
- - - - - ~,--,...---.-.,_--------,-_--..-.m. . . - , _ . , _ - . , _ , , _ - - - - e,,-_.--m .- ~_-c. .- ,.1m._--. ,- _. ,,-
6-
TABIR OF AUIHRITIES
't CASES P,, age _
Barnes v. Kline, 759 F.2d 21 (D.C. Cir. 1985) .................... 6 Bread Political Action Ccarmittee v. Federal Election Ctomission, 455 U.S. 577 (1982) ............................... 15,16 City of Wat 011cago v. NRC, 701 F.2d 632 (7th Cir.1983) . . . . . .. . 22 Greg v. Barret t , 771 F.2d 539 ' (D.C. Cir. 1985) . . . . . . . . . . . . . . . . . . . 5,6,10 Harrington v. Bush, 553 F.2d 190 (D.C. Cir. 1977) ................ 10
- Holtanan v. Schlesinger, 484 F.2d 1307 (2d Cir. 1973) . . . . . . . . . . . . 5 Kennedy v. Sanpson, 511 F.2d 430 (D.C. C' ?. 1974) ................ 6
. Tegional Rail Reorganisation Cases, 419 U.S. 102 (1974) .......... 16 i
Synar v. thi ted States , 626 F. Supp. 1374 (D.D.C. 1986) . . . . . . . . . . 5,9,10 Thited Presbyterian Onirch in the U.S.A. v. Reagan,
' 783 F.2d 1375 (D.C. Cir. 1984) ................................ 5,9,10 i United States v. Monasche, 348 U.S. 528 (1955) ................... 17
, ADifNISTRATIVE IECISIO3S Pditm futernational Conpany (Arent for the Governnent of India on Application to Dcport Special Nclear Material), CLI-76-6, 3 NIC 563 (1976) ......................... 3,4,6,13,18,22 q
Exxon Nuclear Otmpany, Inc. (Ten Applications for Iow
{
~Tlched Uranitsn Exports to Euratom Meter Nations),
i CLI-77-24, 61% 525 (1977) ................................... 4,12 Hounton Lirhting & Power Co. (Allens Creek Nuclear Generat ng Station, Uhit 1), AIAB-535, 9 NRC 377 (1979) ....... 6
,' I* err-McGee Corp. (West 011cago Rare Earths Facility),
CLI-82-2, 15 NRC 232 (1982) ................................... 22 4
font fr. land Lighting Capany (Jamesport Nuclear Power 1 3tation, Uht ts 1 and 2), AIAD-292, 2 NRC 631 (1975) . . . . . . . . . . . 7,9 4
r, o
s ;
Yj 'k g,
1
)3 _ gg
,s Public Service Electric & Gas Co. (Salem Nuclear C & nerating Station, Uhits 1 and 2), ALAB-136, 6 ABC 487 (1973) .............................................. 6
'i tbstinghouse Electric Corp. (Export to South Korea),
CLI-80-30, 12 N C 253 (1980) .................................. 4,13,20 ffrA'IUIES Mninistrative Procedure Act,-
5 U.S.C. sec. 554(a)(4) ....................................... 22 Atomic Energy Act, Section 189(a) 42 U.S.C. sec. 2239(a) ........................................ 4 Ostprehensive Anti-Apartheid Act of 1986 Pub. L.99-440, 100 Stat. 1086 ................................ 2 l
l l
RBmKATICNS 10 C.F.R. 51.22(c)(15) ........................................... 13 1
10 c'.F.R. 110.31 .................................................
^
20 1
10 C.F.R. 110.44 ................................................. 5,10 10 C.F.R. 110.44(h) .............................................. 13 i
' ' + '
10 C.F.R. 110.70 ................................................. 2 10 C.F.R. 110.71 ................................................. 21 10 C.F.R. 110.81 ................................................. 21 I i l, 10 C.F.R. 110.82(c) .............................................. 2,5 10 C.F.R.'110.84 ................................................. 5,5 10 C.F.R. 110.84(a) .............................................. 12 10 C.F.R. 110.84(b)(2) and (3) ................................... 4 10 C.F.R. 110.85 ................................................. 22 10 C.F.R. 110.86 ................................................. 22 10 C.F.R. 110.105-110.107 ........................................ 22 31 C.F.R. 545.425 ................................................ 16 I< -
- r- _ _ _ _ _ _
- 111 -
MISmrJANIKKE Executive Order 12571 of October 27, 1980 hplementation of the Conprehensive Anti-Apartheid Act, Fed. Reg. 39505 (October 29, 1986) ............................ 16 H. Rep. No.99-638, Part 2 at 7 .................................. 17 Inports of Uraniun from South Africa, 4 51 red. Reg. 47,207 (December 31, 1986) ....................... 3,20 South African Transactions Regulations, Fed. Reg. 7273-7276 (March 10, 1987) ............................. 16,18 9
6 9
0 I
-- - n. ,- . , - - , - - .. . .-, - . . , , , , - - - - . . - - - - , . . - - - - , , . -,-. ,.,-- - . , ,. r - - ,,,a
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
. ) l BRAUNKOIILE TRANSPORT, USA, ) Docket Nos. 11003919-22 I
) License Application j
. ) Nos. IU-87001-02
) Nos. ISNM-87003-04
)
In the i.Iatter of )
) ,
ADVANCED NUCLEAR FUELS CORP. ) Docket No. 11003928
) License Application
) No. ISNM-87004
)
In the Matter of )
)
EDLOW INTERNATIONAL CO. ) Docket Nos. 11003929-31
) License Application
) Nos. 10-87006-07
) No. ISNM-87008 NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING I. INTRODUCTION On February 17, 1987, a Petition for Leave to Intervene and Request for Hearing (hereafter " petition") was filed on behalf of seven individu-als, all United States Congressmen, and five organizations in the matter of eight pending import license applications. II The petition was timely
-1/ On February 20, 1987, the Oil, Chemical and Atomic Workers l International Union (OCAW) withdrew as a Petitioner. Subsequently, on March 10, 1987, Petitioners filed a " Motion to Amend Petition to Add New Parties" (" motion") . The proposed new parties are Robert L. Chavez, a uranium miner, New Mexico State Senator Carlos P. Cianeros and IIenry Eric Isaacs, an exiled South African.
. The NRC staff believes that the discussion of standing in this pleading is applicable to the proposed new parties. (See particularly n.7.) Furthermore, with regard to Mr. Isaacs, while asserting that (FOOTNOTE CONTINUED ON NEXT PAGE)
filed in response to a Federal Register notice of the receipt of the- four applications of Braunkohle Transport, USA, one of three applicants that are the subject of the petition. 2_/ The petitioners assert the position that the applications should be denied on the basis of I 309(a) of the Comprehensive Anti-Apartheid Act of 1986 (hereafter, Anti-Apartheid
. Act) , - Pub. L.99-440, 100 Stat. 1086, as amended. That Section provides, in pertinent part, that:
Notwithstanding any other provision of law, no -
(1) uranium ore (2) uranium oxide that is produced or manufactured in South Africa may be imported into the United States.
(FOOTNOTE CONTINUED FROM PREVIOUS PAGE) his ability . to return home is adversely affected by South ' African imports, he has failed to establish a clear nexus between the potential outcome of this proceeding and his interest in being free to return to South Africa. hiotion , at 5; Memorandum of Points and Authorities in Support of Petitioners' Motion to Amend and Add New Parties, at 3. the motion also relies upon 10 C.F.R. Part 2 as establishing the procedures applicable to the filing and consideration
- of the motion. Part 2 is not, however, applicable to this l proceeding. The Staff concludes that the new petitioners have not demonstrated standing to intervene in this proceeding.
~
2/ The Commission's regulations provide that notice of receipt of an export or import license application will be accomplished by placing the application in the Commission's Public Document Room (PDR).
10 C.F.R. I 110.70. Although the regulations do not require publi-cation of notice of receipt of applications for import licenses in the Federal Register, the Director, Office of International Programs,
. caused the four Braunkohle applications to be so published. 52 Fed.
3Re . 1990 (January 16, 1987). The other four applications have been noticed by placement in the PDR. The Commission should find the petition to be timely with respect to all eight applications. See
~
10 C.F.R. I 110.82(c).
t i-y.--.4 ,m_._,,m,,__,.,-.._.,.-___,.y ,.y.,, ,,.,__,..m_, _% ., , , __-.--,-,.,,.,m ..,-,,-_m,-
- Pctitioners .'also assert other grounds in -support of their petition. For the reasons set forth in this response, the NRC- staff believes that peti-tioner's request for a hearing as a matter of right should be denied. 3 -
II. DISCUSSION A. Interest and Standing The issue of the standing of the parties is jurisdictional and, there-fore , must be determined at the start of every proceeding. Edlow International Company (Agent for the Government of India on Application to Export Special Nuclear Material), CLI-76-6, 3 NRC 563 (1976). In this case the resolution of the issue is unique because some of the petitioners as members of Congress participated in the development of the Anti-Apartheid legislation which is involved in this proceeding and which formed the basis for' changes to the Commission's regulations involving import licenses. 4I -
If it is determined that the individuals and organizations petitioning in this matter do not have the requisite standing, then there would be no I entitlement to a hearing as of right. The Commission has determined that in proceedings involving licenses of the type at issue an expansive application of standing would be undesirable, since such a reading would involve sensitive questions of the nation's conduct of foreign policy which l* are not appropriate for Commission consideration. Edlow International l Company, 3 NRC at 570 (1976).
l'
(
-3/ Even if the Commission determines that none of the petitioners have
. the requisite standing, it can still provide for a discretionary
, hearing. 10 C.F.R. I 110.84.
1 4/ See, Imports of Uranium from South Africa. 51 Fed. Reg. 47,207 Ufecember 31,1986) (amending 10 C.F.R. Part 110).
1 l
4-In resolving the question of standing.in an NRC proceeding the first thing to be considered is Section 189a of the Atomic Energy Act, as amended, 42 U.S.C. I 2239(a), which provides in pertinent part:
In any proceeding under [the] Act, for the granting ... of
, any license ... the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to
, such proceeding. (emphasis added)
Thus a ' person requesting a hearing must, among other things, set forth facts pertaining to that interest and how it may be affected so that the Commission can determine whether there is a basis for finding that there is standing. Westinghouse Electric Corp. (Export to South Korea),
CLI-80-30,12 NRC 253 (1980). In determining whether there is standing in this type of licensing matter, particular attention should be paid to the factors set forth in 10 C.F.R. I 110.84(b). These factors include how that interest relates to issuance or denial and the possible effect of any order on that interest, including whether the relief requested is within the Commission's authority. See, 10 C.F.R. I 110.84(b)(2) and (3).
The Commission has determined that a petitioner's requisite interest will be resolved by relying upon judicial precedents. Edlow International Company, CLI-76-6, 3 NRC 563 (1976); Exxon Nuclear Company, Inc.
(Ten Applications for Low Enriched Uranium Exports to Euratom Member I
Nations), CL1-77-24, 6 NRC 525 (1977); Westinghouse Electric Corp. (Ex port to South Korea), supra. These cases hold that in order to establish standing there must be an allegation of an " injury in fact" and that the injury is fairly traceable to the agency action. Westinghouse Electric, supra. 12 NRC at 258. Thus, a petitioner seeking a proceeding as a matter of right must set forth an interest and how that interest may be t.
affected 5_( See,10 C.F.R. Il 110.82, 110.84. The federal courts have consistently held that a Member of Congress as well as any other member of the public, in order to participate in a proceeding, can establish standing by showing that he personally would suffer some actual or threatened injury as a result of the contemplated action. United
. Presbyterian Church in the U.S. A. v. Reagan, 783 F.2d 1375, 1378 ,
(D.C. Cir. 1984). The harm must be both real and immediate, not conjectural or hypothetical. Id. An interest in preventing unlawful executive enforcement of a statute would not qualify as establishing such interest. Id. at 1382. One court has stated that " permitting lawmakers to assert the latter interest [ preventing unlawful enforcement of a statute] would be tantamount to giving them standing to challenge the lawfulness of all executive action taken under a statute...." Synar v.
United States, 626 F. Supp.1374,1382 (D.D.C.1986), affirmed sub nom Bowsher v. Synar, U.S. (1986), 92 L.Ed 2d. 583, 54 U.S.L.W.
5064,106 S. Ct. 3181. 6/ See also, Holtzman v. Schlesinger 484 F. 2d.
- 1307,1315 (Second Cir. 1973), Gregg v. Barrett, 771 F. 2d 539 (D.C.
- 5) In addition, a petitioner must comply with all the requirements of
, 10 C.F.R. I 110.82, which includes, among other things, that the petitioner must set forth the issues and explain why a hearing or intervention would be in the public interest and how a hearing or intervention would assist the Commission in making the determina-
- tions by 10 C.F.R. I 110.44.
-6/ In Synar v. United States, the court determined that Congressman Synar had established the requisite injury and thus established standing. The court held that Congressman Synar had standing when he alleged a " specific and cognizable [ injury] arising out of an interest positively identified by the Constitution." 626 F. Supp at 1382. The Congressman alleged that the action in controversy un-
- constitutionally gave to the Comptroller General and the President formal power to amend or repeal appropriations legislation that was lawfully enacted.
1
- ,.-,.- =* ---- - , , . , . , . - - , _ _ , - , , _,
Cire. 1985). C_f. Kennedy v. Sampson, 511 F.2d 430 (D.C. Cir. 1974) !
and Barnes v. Kline, 759 F.2d 21 (D.C. Cir.1985).
A number of organizations have also petitioned the Commission to hold a hearing in connection with the subject import license applications.
~
As with the Members of Congress we must determine whether these organ-
. Izations have the requisite standing to participate in this proceeding. An organization may establish standing based upon an injury to itself or through members of the organization who have interests which may be ,
affected by the outcome of the proceeding. O Edlow, at 573-74. When an organization claims standing based on the interests of its members, at least one of its members must have standing in his or her own right.
Houston Lighting & Power Co. (Allens Creek Nuclear Generating Station, Unit 1), ALAB-535, 9 NRC 377, 393-97 (1979); Public Service Electric
& Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 488-89 (1973). The organization must identify by name and address the specific individual member whose interests may be affected, and further must demonstrate that such members have authorized the or-ganization to represent his or her interest in the proceeding. Id.
B. Interest and Standing of Petitioners
- 1. The Congressional Petitioners The seven members of Congress who have petitioned to inter-vene in this matter have exhibited a wide ranging interest in a number of
-7/ It should be noted that competitive interest of its members is not an interest that would come within the " zone of interest" considered in an NRC proceeding. In the Jamesport proceeding the opinion of
. Chairman Rosenthal, which was concurred in by a majority of the panel, was that the economic interest asserted by the petitioner
[ competition from nuclear energy] does not come within the " zone of (FOOTNOTE CONTINUED ON NEXT PAGE)
areas dealing with southern Africa and in particular the Comprehensive Anti-Apartheid Act of 1986 (An ti-Apartheid Act).
Congressman Dellums la a member of the House Committee on Armed Services, a member of tie Congressional Black Caucus and has a Iong-standing interest in the problems of southern Africa. Petition at 9.
. The Congressman's interest in this proceeding is to fulfill his "special obligation to protect the American Public from the danger posed to the common defense and security by these imports- and to ensure the proper enforcement of the Anti-Apartheid Act." .Id .
Congressman Dymally is a member of the House Committee on Foreign Affairs and chairs the Congressional Black Caucus. Petition at 10. The Congressman submits that the granting of these licenses would adversely affect the interest of the Congressional Black Caucus in changing the racial policies of the South African government and would negatively impact the Congressman's responsibilities on the Foreign Af-fairs Committee. Id. In addition Congressman Dymally believes that his
" status as a member of Congress entitles him to represent the public in-terest in these license applications insofar as they affect the common de-fense and security." Id.
Congressman Gray is a member of the House Foreign Affairs Committee's Subcommittee on Africa, the Subcommittee on Foreign Opera-
~
tions of the House Committee on Appropriations, and chairs the House Budget Committee. Petition at 11. The Congressman is also a member of (FOOTNOTE CONTINUED FROM PREVIOUS PAGE) interest" protected or regulated by either the Atomic Energy Act or NEPA. Long Island Lighting Company, (Jamesport Nuclear Power Station, Units 1 and 2), ALAB-292, 2 NRC 631, 643 (1975).
t
. the Congressional Black Caucus. Congressman Gray's interest in this proceeding is to ensure that U.S. government policy does not lend sup-port to apartheid in South Africa and to ensure that the public interest in the common defense and security is not negatively affected by the pro-posed imports. Id.
. Congressman Markey is a member of the Subcommittee on Ener-gy Conservation and Power of the House Energy and Commerce Committee, a member of the House Committee on Interior and Insular Affairs and that l
Committee's Subcommittee on Wnergy and the Environment. Petition at 12.
The Congressman's interest in this proceeding is to fulfill "his duties and responsibilities as a Committee member and Representative" in that the granting of these licenses would impair the common defense and security which he is obliged to protect. M.
Congressman Rangel is a member of the Congressional Black Caucus and seeks to intervene to ensure that the interests of Congress 1
are considered fully by the Commission and to protect the public interest in the common defense and security. Petition at 13.
Congressman Richardson is a member of the House Committee on Energy and Commerce and the Committee on Interior and Insular Affairs.
l Petition at 13. The Congressman's interest in this proceeding is based upon a concern that "the proposed imports could damage the uranium in-dustry in his district and cause economic hardship for a significant num-ber of his constituents". M. The Congressman also seeks intervention "to protect the common defense and security and to ensure implementation l
of Congressional policy in regard to South Africa. M.
l*
Congressman Wolpe is Chairman of the Subcommittee on Africa of the House Foreign Affairs Committee, a member of the Subcommittee on
International Economic Policy and Trade of the Committee on Foreign Af-
. fairs, and sits on the Defense and International Affairs Task Force of the liouse Budget Committee. Petition at 14. His interest in this proceeding is that this proceeding may affect his responsibility for monitoring the impact of U.S. energy policies and trade agreements on human rights and
. racial policies in Southern Africa.
' All of these Members of Congress have exhibited a keen interest and involvement in the policies and practices of ~ the South African government. Each has established an interest in the enforcement of'the Anti-Apartheid Act and of the potential impact the import of the subject material will have upon southern Africa. However, none of the Members of Congress has suggested how the Commission in fulfilling its obligation under the Atomic Energy Act will cause specific and cognizabl'e injury to him. U See, United Presbyterian Church in the United States, supra; Synsr v. United States, supra.
The Commission's responsibility in this proceeding, consistent with the Anti-Apartheid Act, the Atomic Energy Act of 1954, as amended,
- and the Commission's regulations set forth in 10 C.F.R. Part 110, is to i
- determine whether the material sought to be imported is precluded by law I from being imported into the United States and, if it is not precluded, l
l
-8/ Congressman Richardson also asserts that the proposed imports could damage the uranium industry in his district. In the first place this economic question is not normally considered by the Commission in
~
its licensing proceedings as it is not within the " zone of interest" protected or regulated by either the Atomic Energy Act or NEPA.
Long Island Lighting Company (Jamesport Nuclear Power Station ,
i Units 1 and 2), ALAB-292, 2 NRC 631 (1975). Furthermore, the
!- injury is not to the Congressman but is more in the nature of a
, generalized concern about employment conditions in his district.
These are not matters that would normally be considered by the Commission. Id. This same argument applies equally to the alleged
! interests of thTproposed new parties, Messrs. Chavez and Cisneros.
f
- - - . ,, _ , , , ~ - _ , _ , _ , . , , _ _ . , , - , , , , , . , - _ , _ , . , , , - - - . , . . , - _ ~ . , . , . , ---, , , , -, _ , - . . , _ , , - _ . , , , , - , , . . . - . , . , , , - - - - , . . , - ,
... whether "the proposed import will be inimical to the common defense and security or constitute an unreasonable risk to the public health and safe-ty." 10 C.F.R. I 110.44. While all of the petitioning Members of Con-gress have indicated an interest in participating in this decision process, their generalized concerns fall short of the requirements for participation
, as a party. The interest of the petitioning Members of Congress is an abstract and generalized interest in influencing how the Commission en-forces the Anti-Apartheid Act. It appears that the Members of Congress want to assure that the Commission in fulfilling its obligations does not diminish the effectiveness of the legislation. If the Members of Congress were permitted to participate under these circumstances as a matter of right it would in effect give them standing to challenge as a party to a proceeding all Commission implementation of its responsibilities. This interest is not the type of interest that is required to obtain standing in a proceeding. United Presbyterian Church in the U.S. A. v. Reagan, 738 F. 2d 1375 (D.C. Cir.1984), Harrington v. Bush, 553 F. 2d 190 (D.C.
Cir.1977), Synar, supra at 626 F. Supp. at 1382.
The concerns expressed by the members of Congress do not present the type of injury that is required to establish standing. These Members of Congress do heve an alternative to pursue in the event that i
they are not satisfied with the decision by the Commission with respect i to these license applications. They can pursue, through the Congress, the amendment of the Anti-Apartheid Act to reflect what they believe to be the true Congressional intent. See, eg, Gregg v. Barrett, supra.
Accordingly, the petitioners who are Members of Congress do
, not have the requisite standing to participate in this proceeding as a mat-
- ter of right.
- 2. The Institutional Petitioners b The Nuclear Control Institute asserts that its iterest in oppos-ing nuclear proliferation and ensuring proper safeguards for nuclear en-ergy is threatened by the instant application. Petition at 16.
The American Committee on Africa asserts that its interest in
. this proceeding is its institutional commitment to effecting change in South Africa and ending South Africa's illegal occupation of Namibia. Petition at 17. It also states that it has an interest in ensuring that issues relat-ing to the U.S. role in South Africa's nuclear program are fully explored by the Commission. Id.
TransAfrica, In c. 's b interest is in its belief that the granting of the import licenses requested in this matter would harm its efforts to redress the racial situation in South Africa, to work peacefully for Namibian independence and to end the ongoing warfare in southern Africa. Petition at 18.
The Washington Office of Africa, which is sponsored by a num-ber of religious organizations, seeks to protect its investment of resoure-es in persuading Congress to implement necessary sanctions against the
. South African Government. This interest is asserted to be threatened by the proposed imports. Petition at 19.
While the Institutional petitioners have generally expressed hu-manitarian concerns , none has set forth the necessary threatened or 9/
~
None of the institutional petitioners purport to be representing any individual member.
-10/ Although TransAfrica indicates that it is petitioning on behalf of its members and as an organization, it does not identify names of any individual member that it might represent. Thus for the purpose of this response the Staff will address TransAfrica only in its institu-tional capacity.
- actual injury which it would suffer from the issuance of the import licens-es being considered. See, Exxon Nuclear Company, supra.. at 6 NRC at 530. Their concerns are a generalfred disagreement with the -policies of South Africa, which are shared by a large segment of the United States population. However, this generalized concern is not adequate to support
. standing in this proceeding. What they must show, but have not, is a distinct and palpable harm to themselves. Id. The interest they raise concerning the impact of the importation of the material in question involves wide ranging economic, racial and political questions and is not the type matter that the Commission would consider in determining wheth-er to issue the licenses in question. Edlow, supra. The Commission has addressed this type of issue in other licensing matters and has stated that as a matter of policy "an expansive rule of standing would be unde-sirable in the export licensing context which involves sensitive questions of the nation's conduct of foreign policy." Id. 3 NRC at 570. The Coa-mission's jurisdiction is limited to the public health and safety, common defense and security and environmental aspects of nuclear facilities and materials.
III. DISCRETIONARY HEARING The Staff's conclusion that petitioners have not demonstrated stand-ing to intervene with respect to these applications does not end the con-sideration of whether a hearing should be held. The Commission may grant a hearing as a matter of discretion where petitioners do not have standing if it concludes that a hearing would be in the public interest and would assist the Commission in making the statutory determinations
,- required for the issuance of import licenses. 10 C.F.R. I 110.84(a);
I
- Westinghouse 1:lectric, supra,12 NRC at 260-61; Edlow, supra, 3 NRC at 580, 584, 587-88. For an imoort license the Commission must find that license issuance would not be inimical to the common defense and security and would not constitute an unreasonable risk to the public health .and safety. 10 C.F.R. I 110.44(b). b With respect to import of uranium
. products from South ' Africa, the Commission must also determine whether the proposed import is prohibited under I 309 of the Anti-Apartheid Act.
The public interest standard is best determined after consideration of whether a hearing would assist the Commission in making the required determinations regarding the issuance of these licenses. This question turns to a large degree on the Commission's assessment of whether the petitioners' input would assist it in reaching a determination on the re-quired findings. Westinghouse Electric, supra,12 NRC at 260-61. The Commission would be influenced by whether it believed the petitioners were prepared to introduce into a proceeding information beyond that already available to it that could have a significant beering on the deter-minations to be made regarding license issuance. Edlow,' supra, 3 NRC at 584; Westingrhouse Electric, supra,12 NRC at 260-61.
The Staff has reviewed the petition from this perspective and com-pared the matters asserted therein against the information already avail-able to the Commission to assist it in making the necessary statutory j* determinations. Petitioners here do not raise any issues regarding the f
-11/ Section 110.44(b) also requires the Commission to determine that any applicable provisions of 10 C.F.R. Part 51, Subpart A have been satisfied. Issuance of licenses for import of source or special nucle-ar material, except for import of spent power reactor fuel, are, how-ever, excluded from the requirement to prepare an environmental 4
impact statement or environmental assessment. 10 C.F.R.
I 51.22(c)(15).
impact of issuance. of the licenses on the public health and safety. Rath-er, they pose legal arguments in the following four areas:
the scope of the prohibition in Section 309 (Petition, at 20-23);
inimicality to the common defense and security (Petition, at 23-27);
whether the proposed imports would violate international legal obligations with respect to Namibia (Petition , at 28-30); and whether applicants have failed to provide information in their applications required under 10 C.F.R. I 110.31 and, if so, the proper remedy for that failure (Petition, at 31-34).
As will be noted in the discussion of Petitioner's arguments below, there ,
is no dispute of fact raised by these argumente which would require an evidentiary hearing to resolve. Since the issues are primarily Icgal, they can best be resolved by the Commission after considering the briefs presented. Of course, should the Commission desire oral presentation of these arguments it may order a session for that purpose.
Petitioners identify three issues related to the scope of I 309 which
- they perceive are raised by these applications. Those issues are
(1) Whether the ban on imports contained in the [ Anti-Apartheid] Act reaches all forms of uranium, including i uranium hexafluoride; i
- (2) Whether the Act prohibits the import of South African-origin uranium which has been processed in a third country; l (3) Whether the import of South African uranium for the purpose of conversion, enrichment or other processing in
- the United States and subsequent re-export to a third country is banned under the Act.
Petition at 8. These three legal issues are raised by the applications because of the variation in the form of the uranium proposed to be
- imported, the work to be performed on the uranium in the United States,
and the ' aspect .of whether the resulting product will be used in the -
United States or exported to other countries. Petition at 21.
As noted above, R 309 specifies two forms of uranium whose import
_ from South Africa are prohibited, uranium ore and uranium oxide.
Petitioners argue, however, that import of all forms of uranium should be prohibited because to do otherwise ". . . . would effectively nullify the Congressional prohibition on import of South African uranium." Petition at 22. It is noteworthy that although the petitioners include seven mem-bers of Congress, they have not cited any legislative history in support of their interpretation of the scope of 5 309. The Staff has not identified any legislative history regarding the Anti-Apartheid Act that would sup-port petitioners' position as to the scope of f 309(a). With respect to the issue of whether f 309(a) bans imports of uranium hexafluoride (hereaf-ter, "UF ") , there are two letters from Members of Cong::'ess to the 6
Executive Branch b, which could be characterized as post-enactment
" legislative history." One letter stated that Congress had not intended to include UF6 in the list of banned items, the other letter took the contrary view . Not only are these letters conflicting, but they are entitled to littic or no weight because statements made by Congressmen after the passage of legislation cannot serve to change the intent of Congress expressed before an act's passage. Rather, such statements represent
. only the personal views of the legislators. Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577, 582 n.3 (1982);
. W Letter dated October 14, 1966, from Senator Lugar to Secretary Shultz stating that Congress had not intended to ban imports of UF Letter dated October 31, 1986, from Senators Bingaman and
. Ke$n.edy and Congressmen Richardson, Wolpe, Dellums, Leland, and Markey expressing the contrary view.
. Regional Rail Recrganization Cases 419 U.S.102,132 (1974). Since the text of 8 309(a) is clear, and there is no " clear evidence" of a " clearly expressed legislative intention" to the contrary, the plain meaning of I 309(s) (i.e. , that only import of uranium ore and uranium oxide is banned) should prevail. Bread Political Action Committee, supra, 455
, U.S. at 581.
Since the applications involved here do not entsil conversion of ura-nium ore concentrate into UF , n r enrichment of that UF , in S uth 6 6 Africa, the issue of whether 8 309(a) bans import of UF is interrelated 6
with the question of whether import of uranium ore that has been pro-cessed outside South Africa into natural or enriched UF is6 banned. In this regard, the Treasury Department published on March 10, 1987, I3/ -
South African Transaction Regulations which state, inter alia, that:
Articles such as uranium hexaflorido, which are produced from uranium ore or uranium oxide and which the U.S. Cus-toms Service determines to have been substantially trans-formed outside the United States, are not subject to the import prohibition of 5 545.211.
52 Fed. Reg. at 7274, new section 31 C.F.R. I 545.425. While the Trea-sury regulations are only binding on Executive Branch agencies (see Ex-ecutive Order 12571, supra), they are entitled to substantial weight since they constitute the position of the Department responsible for implementation of the import prchibitions in the Anti-Apartheid Act. The Staff understands that this provision of the regulations reflects a sub-l stantial body of Customs Service case law that stands for the proposition l -13/ 52 Fed. Reg. 7273-75 (copy enclosed). Pursuant to Executive Order
. 12571 of October 27, 1986, the President delegated authority to the Secretary of the Treasury to implement the Anti-Apartheid Act's prohibitions on imports of certain products (including uranium ore and uranium oxide) from South Africa. 51 Fed. Reg. 39505 (October 29, 1986).
that if a product originating in one country has been "substantially transformed" in another country, the transformed product is not consid-ered to be from the originating country. This would be so even where an application to the NRC for import of UF identified 6 the original source
~
of the uranium as South Africa but conversion to UF , an n some cases 6
. enrichment, has occurred in another country. A contrary result would have far-reaching implications beyond the interpretation of the Anti-Apartheid Act.
The second issue concerning interpretation of f 309 raised by petitioners is whether the import bar extends to uranium ore or uranium
, oxide imported for enrichment or other processing and subsequent re-export (hereafter, " temporary imports"). Again a reading of I 309(a) would lead one to conclude that temporary imports are included within the prohibition. The Staff understanding is that most of the uranium ore and uranium oxide that is imported into the United States from South Africa is subsequently re-exported. In these circumstances, 8 309(a) should be construed in such a way as to best carry out the overall Congressional objective of banning imports of uranium ore and uranium oxide from South Africa. United States v. Menasche, 348 U.S. 528-538-39 (1955). EI The position of the Treasury Department, however, is somewhat i
different. Treasury published an interim rule (which will lapse on l
l -
July 1, 1987 unless it is published as a final rule before that date) permitting the importation of uranium ore or uranium oxide produced or manufactured in South Africa when such importation is solely for processing in the United States and export of the products of that i
M/ See H. Rep. No.99-638, Part 2 at 7.
I l
l l
processing. 52 Fed. Rg . 7274-75 (March 10, 1987), (copy enclosed).
l Noting that there is some dispute as to what the legislative history contains on this issue, the Treasury Department requested written l comments from interested parties as to the intended scope of I 309(a).
In the interim, Treasury reasoned 'that the domestic uranium conversion
. industry could be significantly harmed by implementation of I 309(a) in a manner unintended by Congress. The Commission should weigh these considerations in determining the action to be taken on those applications that request licenses to import uranium ore concentrate directly from South Africa, for further processing in the United States and subsequent re-export to other countries.
The legal issues with respect to the scope of I 309(a) can be resolved by the Commission on the basis of the analysis presented above and its own review of the legislative history. It does not appear that petitioners' are prepared to introduce into the proceeding any factual information beyond that already available on this issue. Edlow, supra.
What remains for the Commission to determine is the proper interpretation of I 309(a) in light of the existing factual situation.
For similar reasons, petitioners' arguments on (1) common defense and security, (2) international legal obligations, and (3) the completeness of the applications do not warrant a discretionary hearing.
Conceptually, petitioners might be able to demonstrate to the Com-mission that even if import of UF 6 rom South Africa is not prohibited by I 309, the applications should be denied on the ground of inimicality to the common defense and security. The four arguments raised by petitioners regarding the effect of issuance of these import licenses on the common defense and security are:
d
- 1) United States imports of uranium from South Africa . !
would provide substantial sums of money which could be i used by South - Africa for military initiatives in defense l of apartheid. Petition at 24.
- 2) By importation of South African uranium into the United States, this countrv effectively promotes the South
. African uranium industry and thus support Pretoria's nuclear weapons program. Petition at 26.
- 3) Continued. importation of South African uranium risks creating a United States dependence on a potentially unstable source of supply. Petition at 26-27.
- 4) Denial of these license opplications will result in little adverse effect on the United Stens because most of the uranium imported from South Africa is merely processed here and then exported to other nations. Petition at 27.
In view of the distinction between (1) uranium ore and uranium oxide and (2) other forms of uranium that appears to be reflected in f 309, petitioners have a substantial burden to demonstrate that there are common defense and security issues regarding these epplications that warrant grant of a discretionary hearing. The Staff has reviewed the points that petitioners wish to raise regarding the impact of permitting these imports on the common defense and security and concludes that petitioners have not met this hurden.
With respect to international legal obligations, petitioners argue that:
To permit importation of Namibian uranium in any form would be violative of the United States' international legal obligation to refrain from any dealings with South Africa which would impliedly recognize or lend support to its occupation or ad-ministration of Namibia.
Petition at 28. The Staff does not believe that a hearing is warranted on this issue, since the Anti-Apartheid Act and the Commission's regulations implementing that Act already treat Namibia as part of South Africa for O
. i the purpose of prohibiting importation of uranium produced or manufac-tured in that territory. b Petitioners assert certain failures on the part of the applicants to provide information required .under 10 C.F.R. I 110.31 to be included in the applications. Any required information that is missing from the
. applications, can be supplied by amendment of the applications without the need for any hearing. Petitioners argue, but fail to provide any support for,' the proposition that:
As applicants' failure to initially provide the requisite infor-mation prejudices the interests of any parties who would wish to contest their applications, applicants should not be permit-ted to avail themselves of expedited amendment procedures :
and should instead be required to re-file their app 3 cations.
Petition at 34. Petitioners have not demonstrated that any deficiencies that may exist in the information provided are of such significance as to warrant a discretionary hearing to inquire into such matters.
i Based upon its consideration of the petition, the Staff concludes that a hearing would not assist the Commission in making the required deter-minations regarding whether to issue these licenses. This factor weighs heavily in the Commission's determination of whether to grant a discre-tionary hearing in the public interest. Westinghouse Electric, supra,12 NRC at 260-61. Petitioners seek to demonstrate to the Commission that the prohibition of I 309 should be given a broader interpretation than is apparent on its face. The Staff believes that the Commission has ample information before it to decide this basic legal issue raised in the petition and that the public interest does not necessitate holding a hearing on
~
15/ See Public Law 99-440, 8 3(6)(B) and Commission's statement of con-siderations accompanying its final rule on Imports of Uranium from South Africa. 51 Fed. M. 47207 (December 31, 1986).
__ ._. . - _ _ . _ . ~ _ _ _ . - _ - _ _ _ _ _ _ _._.-
l
. l
)
1 these applications. Nevertheless, the Commission may wish to utilize its l discretionary authority to allow petitioners to express their views on the l issues raised in the petition.
Petitioners argue that a formal adjudicatory hearing should be held to consider these Ifeense applications. Petition at 34-37. They request ;
. that the hearing provide for:
o full participation by not only petitioners, but also other interested members of the public; o cross-examination by the parties of adverse witnesses;
, and o discovery.
Petition at 37. Petitioners assert that this is necessary in order to afford them and members of the pub!!c the opportunity to inspect and analyze all pertinent data on which the Commission may rely in reaching its decision
, on licensing. Id. , at 34. The applications for these licenses and other pertinent public documents have been, or will be, made available in the Commission's Public Document Room in Washington, D.C. for review by any member of the public. See 10 C.F.R. I 110.71. The Commission
, encourages written comments from the public on import license applications and will consider and, if appropriate, respond to these comments.
10 C.F.R. I 110.81. Petitioners have not demonstrated why this mecha-nism is insufficient to enable members of the public to comment on these applications.
Additionally, petitioners have not addressed Commission case law holding that full adjudicatory hearing procedures (of the type provided in 10 C.F.R. Part 2, Subpart G) are not appropriate in nuclear materials licensing actions , which includes the consideration of these licenses.
- - - - - - - -- , -- - - - - - - - , - - , - - - - - - - - . - , - . - - - - - , . , . , - _ _ - , ,n,
- Edlow, supra, 3 NRC at 589-00. EI Part 110 also does not provide for discovery or cross-examination in import licensing proceedings. See, 10 C.F.R. 55 110.105 - 110.107. El Petitioners have failed to address these regulations. Finally, Petitioners have not identified a factual as
[ opposed to a legal dispute on which evidentiary hearing procedures would be appropriate.
For the above reasons, if the Commission decides to grant a hearing on these applications, that hearing would be conducted pursuant to one of the options provided in 10 C.F.R. Part 110. See 10 C.F.R. I 110.85 providing for hearing on written comments; 5 110.86 providing for oral hearing.
Petitioners request that any hearings granted with respect to these applications be consolidated with any hearings granted in response to their Petition for Commencement of License Revocation Proceedings, also filed on February 17, 1987. The Staff believes it is premature to grant 16/ There is no entitlement to a formal, trial-type hearing under either the Atomic Energy Act or NRC regulations with regard to meterials licensing actions. Kerr-McGee Corp. (West Chicago Rare Earths Facility), CLI-82-2,15 NRC 232 (1982), aff'd, City of West Chicago
- v. NRC, 701 F.2d 632 (7th Cir. 1983). See also 5 U.S.C.
I 554(a)(4), which exempts from the adjudicatory hearing procedures of the Administrative Procedure Act administrative actions involving "the conduct of military or foreign affairs functions." Edlow, supra, 3 NRC at 589-90.
~
17/ There is one exception to this general prohibition on the use of Part 2, Subpart G type procedures in import licensing proceedings.
Where petitioners raise " domestic factual issues regarding the public health, safety and environment of the United States, and the protec-tion of the United States public against domestic theft, diversion or sabotage, to the extent that such issues are separable from the nondomestic issues associated with the license application",
. petitioners may be entitled to additional procedural rights under 10 C.F.R. I 110.105(c). Such issues have, however, not been raised by petitioners here.
this request, since the Commission has not yet acted on either of the petitions. While the facts raised in the two petitions may be the same, some different legal issues appear to be involved. The Commission should act to grant or deny consolidation after it has decided the legal issues in the petitions and determined whether there are any factual disputes which would be appropriate for evidentiary hearing.
IV. CONCLUSION As set forth in this response, the Commission should decline to grant a hearing as a matter of right on these applicatfons. While the Staff does not believe that the circumstances necessitate grant of a hear-ing as a matter of discretion, the Commission has the authority to order a hearing in order to permit petitioners to pursue the matters raised in their petition. If the Commission decides that a hearing should be held, it should not be the formal adjudicatory type of proceeding petitioners request. Rather, it should be conducted pursuant to one of the options l
provided in 10 C.F.R. Part 110. Since the petitions appear to raise legal
- issues of interpretation, if any proceeding is ordered it should be solely for purposes or oral argument.
Respectfully sutnitted, p Y r.
J p Rutberg
. puty Assistant General unsel f
7V. M Stephen H. Iewis Senior Supervisory Trial Attorney Dated at Bethesda, Maryland this 19th day of March,1987
h s._ .
_ FId;ral R:gister / Vd. 52 Nf461 Tu sday. March '10,198f.f Rute) a,d'Regula' tic'nU *:Y2$9,'
(3) The financing or funding of any . ACT oN: Final ruta.1 4& e' In additionian laterim rule is publis' hed.b.
, direct or indirect sale, shipment or : - ' elsewhere in this issue ~of the Federal ' '?
transfer referred to in paragraph (a) (1)
SUMMARY
- This rule amends the South -
[ or (2) of this section: - - ., African Transactions Regulations.119.importation'into ' Register permitting'the teinporary W'"
the United StatesEfIE" (4)The diversionof the proceeds from CFR Part 545 ("the Regulations"), to.. .
- any transaction described in paragraph t implement Section 309 of the ' v .a n South African uranium ore and oxidt for (a) (1) or (2) of this section to or for any . Comprehensive Anti.Aparthd Act of " processing and immediate exp'o'rtation.7 "* ' '
person, organization, foreign 1986 ("the Act"), Pub. I. 99-4@.100 Stat. These regulallons also contain an ' " .
interpretation indicating that U.S.-origin-government, or any faction or body of 1088, as amended by H.J. Res. >58, Pub.
insurgents in any foreign country,
- L 99431.100 Stat. 3515, and to add an * . goods imported temporarily from Septhi'.
including, but not limited to Nicaragua: interpretation relating to Section 303 of African parastatal organizations for f" ' C (5) The provision or coordination of repair or servicing in the United States .
the Act. Section 309 of the Act.which - are not goods marketed or otherwise Y support for persons or entities engaged . became effective at 12.01 a.m. Eastern as military insurgents in armed conflict Standard Time, December 31,1986, - exported by a parastatal organization ,
- with n the meaning of Section 303 of the with the Government of Nicaragua since prohibits the importation into the United Act, and therefore are exempt from the 1984. .. States of uranium cre, uranium oxide, prohibition of i 545.208.The U.S.-
(b) The Independent Counsel. iranf coal,or textiles produced or - '" =
, Contra shall have jurisdiction and . Customs Service will allowsuch l ~ " ' '
manufactured in South Africa. The rule - importations to be made under bond.
authoiity to investigate other allegations . also includes a clarifying amendment .
or evidence of violation of any federal The Treasury Department is also 1 f under Section 303 with respect to U.S ' - amending the Regulations to reflect ' ' ' "
criminallaw by Oliver L North, and any origin goods imported temporarily from approval by the Office of Managenient - :
person or entity heretofore referred to. . South African parastatal organizations - . .,
developed during the Independent , . and' Budget of the information collection i '
, for servicing or repair. .." provisions cientained in il 545.603 and' ^
l Counsel's investigation referred to . . rFFECTIVE DATE:12:01 a.m. Eastern ....,
above, and connected with or arising out Standard Time December 31.1986, 545.604 of regulations Since these the Regulations.
inv ! 'olve -a- ,.1 of that investigation, and to seek
' except that i 545.426 is effective as of' foreign affairs function, the provisic.nsLof. '
Indictments and to prosecute any. October 2,1986, and the aniendment to persons or entitfes involved in any of the Administrative Procedura Act.5 . .
~ l 545.901 is effective as of January 27 U S C. 553, requidng notice of proposed .
the foregoing events or transactions who 1937, .
- are reasonably believed to have rulemaking, opportunity for poblic ..
committed a violation of any federal Fon FunTHEn INFonMAT1oM CONTACT: participation, and delay in effectiva 5 . .
Marilyn I. Muench, Chief Counsel, date, are inapplicable.Because no criminallaw (other than a violation . Office of Foreign Assets Control,
. constituting a Class B or C . notice of proposed rulemaking is . ' -.
misdemeanor, or an infraction, or a Department of the Treasury,1331 G required for this rule, the Regulatory petty offense) arising out of such events. Street NW., Washington. DC 20220 Flexibility Act.5 U.S.C. 601 et seg, does .
including persons or entities who have (telephone: 202/376-0408). . not apply.Because these regulations are '
, enga ed in an unlawful conspiracy or sVPPMMENTr.nY INFORMAT1oN:In .. Issued with respect to a foreign affaim
. o ave aided or abetted any crimmal Executive Order 12571 of Octobe- 27'- function of the United States, they are
- 1988,51 FR 39505 [Oct. 29,1986), u ' ' not subject to Executive Order 12291 of '
(c 5eIndependent Counsel. Iran / President delegated authority to the February 17.198L dealing w(th Federal Contra shall have prosecutorial: Secretary of the Treasury to implement regu ations. )
jurisdiction to initiate and conduct ~ the Act's prohibitions on imports of Ust of Subjects in 31 CFR Part 545 prosecutions in any court of competent certain products from South Africa.. -
- Coal. Imports Namibia,Yarastatal 8 of t$e obh t ayes fe o o e r a adons hMca, qu, Code, or any obstruction of the due ' - 1986, nd we imp! men dpursua to , , pg g ggg- "
administration of justice, or any- 7 material false testimony or statement in 980, at 51 41 . In addl 1o , the A'ct preamble. 31 CFR Part 545 is amended violation of the federal criminallaws,in continued restrictions on loans to the . as roljows:. ~ g, )
connection with the investigation South, African Government, which were likewise implemented in the November - PART 545-SOUTH AFRICAN authorized by Part 600 of this chapter, TRANSACTIONS REGUL.ATIONS 19,1988 rule. Restrictions on new Dated: March 5.1987. .
F.dwin Meese HI, Investment bs South Africa (including 1.The Authority citation for Part 545 loans to the private sector) and a continues to read as follows:.
Atrorney General. prchibition on South African-
[FR Doc. 87-5064 Filed u-e7; a:45 am] ~ Authority: 50 U.S C.1701 et seq.:E.O.-
Government bank accounts in U.S. 12532. 50 FR 36881. Sept.10,1985; F O 12535.
sumo coes anon a depositoryinstitutions, effective ' 50 FR 40325. Oct. 3,1985; Pub. L 99-440,100 '
November 16,1988, were implemented Stat.1086. Pub. L 99-631.100 Stat. 3515 E.D.
)
in a final rule published on December 125M 51 FR 395o5 Oct.29.1986. <
DEPARTMENT OF THE TREASURY 29.1986, at 51 FR 46853.
- 2. Section 545.2111s added to read as )
Office of Foreign Assets Control Guidelines are published today in a - goi; * . '
separate notice related to this final rule 3t CFR Part 545 delineating the products subject to the - I 545.211 Prohibition on importation of i ban on importation into the United . south African uranium ore, uranium oxide, coat, and tertiles.
South AfricanTransactions States of uranium cre, uranium oxide, ,
e l
Regulations textiles, and coal. The U.S. Customs - (a)Notwithstandmg any,other , 1 Service will determine whether provision of law. no (1) uranium ore,(2) aCENCY: Office of Forelgo Asseta particular merchandise is subject to, uranium oxide,(3) coal, or (4) textiles Control. Treasury. . exclusion pursuant to these guidelines, that are produced or manufactured in'
2 -yR
- . m '
Feder:1 Reglst:r / W1. 52, No. 46 / Tuesday Mitch 10, 1987 / Rules cnd'Reguhtlins' . ~. .
i 7274
- L g South Africa may be imported into the . . i.j . Street NW., Washington.DC 20220rtel.:, : - . , .,
31 CFR Part 545.
United States. 202/376-0408.-
~ '-
. . ?. ,i
^
- (b) For purposes of this section, the South' African Transactions.', , .- SUPPLEMENTARY INFOMIM100s: S ,I LI
. term " textiles" does not include any - Regulations . ' Amendments to the Regulations. . . ' .
c rticle provided for in item 812.10 or ActNcY: Office of Foreign Assets, implementing provistens of the Act theta.. 4 g 813.10 of the Tariff Schedules of the . became effective on enactment or 45 9 - l1 y Tress"'M j
~
Y 6 United States.19 U.S.C.1202. - daya thereafter,were pubbshed on - 'j sq Control November 19,1986 (51 FR 41906) and c , .f l 545.203 iAmendedl
SUMMARY
- This rule, efrective through . December 29,1986 (51 FR 46353). A finall(c . -j i-
' ,u July 1,1987, amends the South African rule containing amendments 1
- 3. Section 545.203lf) is added to read -
Transactions Regulations,31 CFR Part implementing section 309 cf the Act. s-'F .
ts follows: effective December 31.1988,is pubrahed,+ , - ? l
- * * *
- 545 (the " Regulations"), to interpret the prohibition on importation of South elsewhere in this issue of the Fedent l-, f, (f)ne effective date of the African uranium ore and uranium oxide Register. %e amendment pub!!shed in-prohibition in i 545.211 is 12:01 a.m. r **
contained in section 309(a) (1) and (2) of this interim rule interprets the South, Eastem Standard Time, December 31 -
.the Comprehensive Anti. Apartheid Act African uranium ore and oxide
'1986 4.Section 545.425 is added to read as of 1986, Pub. L 99440,100 Stat.1086, as . Importation prohibitions in section 309 d . -[j amended by H.} Res. 756, Pub. L 99-431. of the Act, effective December 31.1936. -
hHows- .
100 Stat. 6515 ("the Act"), as - If not published as a finalrule on or - .
implemented in 4 545.211 of the, - before July L 1987, this interim rule will ? . h;!
I 545.425 substantial treneformation of,. . lapse at midnight on that date. l, Regulations. ' . .
I uranium ore and oxide.
The uranium ore and oxide import Section 309(a)(1) and (2)'of the Act '.
Articles such as uranium
.h:xafluoride, which are produced from prohibition in section 309 of the Act was (i 545.211 of the Regulations) prohibits - .
'~ accompanied by certain legislative ' the importation of uranium ore and . ..
,2 uranium ore or uranium oxide and history, not accepted by all Senators, which the U.S. Customs Service uranium oxide produced or . . .
determines to have been substantially indicating a Congressionalintent to manufactured in South Africa, effectis '
tr nsformed outside the United States, permit the temporary importation into - December 31,1986. On August 15,1986, .,
the United States of South African - Senate floor debate took place on an '~j cre not subject to the import prohibition uranium ore and oxide for processing ef 6 545.211.
unsuccessful amendment (No. 2766) to and immediate exportation. Because of section 311 of Senate bill S. 2701 (whle.h . !-
- 5. Section 545.426 is added to read as the uncutainty concernir:g .-
follows: became section 300 of the Act) to -
interpretation of this section, and the remove this ban on uranium . . ~
substantia!, irrevocable harm that importation. Congressional Reconf. -
5 545.42t Pepair of U.S.-origin 9ooda '
caported ty swth African parastatats, parties in the United States might suffer S11851-52 (daily ed., Aug.15,1986). A 4 through a potentia!Iy mistaken ' portion of this debate was net reported The tem orary return from South Africa to t$e United States of U.S.-origin prohibition, Treasury has determinedin to the daily edition of the Congnessimal- ,.
publish this interim rule. The interim Record, but was later furnished by ' <.' ft goods for repair or servicing and re, rule allows temporary importation of Senator McConnell to the Treasury export is not considered anoexbristion uranim me and urenim oxide subject Department, and by Senator Lugar to the -
by a parastatal organization outh to certain conditions. Simultaneously. State Department. in the inrm of galley.
Africa pursuant to i 545.208 of this part. * " "E "' "*' pmofs fw ths permanent edition of the
- 6. Section 545.901 is revised to read as and pubh."S"'"c comment ca the applicability Au st 15,1986 CongressionalReco ti ggows., of section 309 to imports of uranium ore In t e course of this debate, Senator and oxide fw U.S mcessing and McConnell noted the employment 5 545.901 Paperwork Reduction Act exportation to thi countries. Impact of the bill on industries which -
notice. import, process. and reexport natural D ATEs:%Is interim rule is effective as The information collection of1201 a.m. Eastern Standard Time resources from South Africa. Senator
, tsquirements in Il 545.503,545.504. [EST), December 31.1986. The interim L ar,Chairmanof theForeign 545.601. and 545.602 have been approved rule willlapse at 12:00 a.m. Eastern RNations Comrnittee, rul onded to this by the Office of Management and Daylight Time, july 1.19c7. Comments concern, stating:". . .He bhlis not.
Budget (OMB) and have been assigned on the interim ru!e must be received by designed to have any punitive impact control number 1505-0091.%e 5:30 p.m. EST, May 11.1987, except on products which are imported information collection requirements of ADDRESSES: Comments on this interim into the United States for consumption i 545.807 have been approved by OMB rule should be addressed to Unit SA427, in the United States. I think economists Office of Foreign Assets Control. have defined a distinction between nf r a i n c le t$n qu r Departmentof theTreasury,1331G temporary imports and imports for cf il 545.603 and 545.604 have been Street NW., Washington,DC 20220. consumption. It is the latter that we are approved by OMB and assigned control Comments received will be available for targeting when we refer to imports in L-nebu 1505-0098. public inspection on working days this bill." Senator Ford then stated to Dated: February 13.1987. between the hours of 9:30 a.m. and 4:30 Senator Lugar:". . .Ihave had *'
R. Richard Newcomb. .
. p.m. at the Office of Foreign Assets discussions with the lesdership on my .
Control.1331 G Street NW side of the aisle and we share your .
Drector. Office of ferrign Assets Control.
Approved: February 26,1987. Washington, DC: tel.:202/376-0395. i interpretation of the bill's intention." ' ;
FOR FURTHER INFORMATION CONTACT: The interpretation of the section 309' ytands A.Keating H. _.~'
Marilyn I. Muench, Chief Counsel, uranium import ban contained in the ,
A ssistant Secretary (Enforcemen t).
Office of Foreign Assets Control.- colloquy among ?ccators Lugar, (FR Doc. 87 5072 Filed S-6-87;12:::9 pm) McConnell and Ford was disputed by .
a coo, ,,,,,, Department of the Treasury,1331 G f, .
A' .
q
.. )
- + *5 g .
~ ., --.- . A
l l
,' Fedsr:1 Register /;Vil. 52, N146"/ Tue'sday,' Marcli 10l1987/'R'ulesind Regulitf6iFi 3275?d other Senate members after passage of function of the United States, they are
- 31 CFR Part 545% ' " 0 '* "N -
the Act. See, for example, Congressional. not subject to Executive Order 12291 of ' ' * * * ' '
?
Record, S17319 (daily ed., Oct.18,1988). ' February 17,1981, dealing with Federal South African Transactions .. .
Therefore, the Treasury epartment has regulations. Regulations--Product Guidelines ,sta nten e se e o the ura m rt List of Subjects in 31 CFR Part 545 AGENCY:
ban through publication of this interim Office o'f 5Nr'elMlseth
' Exports, Imports', Namibia, South ntml. Treasury. ., :s rule, and a request for written comments Africa, Uranium. ACTION: Notice ofInterpretation. : . .
from interested parties by May 11.1987.
"Ite domestic uranium conversion PART 545-(AMENDED)
SUMMARY
- Not!ce is hereb 'given that - "
' the Idelines set forth be ow will be -
nric en in us o d s ous y f gseb e S rvice of the '
y 8 Au , , ,ori y, ci a on for Part 545 ,,s, toms injured in a manner unintended by the -
Congress if the section 309 import ban Authority: 50 U.S.C.1701 et uq.:E.O. detemining which products are subject on uranium ore and oxide were . 12532,50 FR 38881, Sept.10.1985; E.O.12535, ~ to the ban imposed by section 309 of the' implemented to barimports for 50 FR 40325. Oct. 3.1985; Pub. L 9S-440,100 - Comprehensive Anti-Apartheid Act of
.. processing and export through a Stat.1088; Pub. L 99 631,100 Stat. 35ts: F.O. 1988, Publ 99-40,100 StatdO88 [**the'
~
mistakeninterpretation of the Act.lf 12571. 51 FR 39505,0ct. 29,1988. Act"), as amended by H.J. Res. 758, Pub.
imports for processing and reexport 1.99-831.100 Stat. 3515, on importations were prohibited, foreign electric utilities 2. Interim l' 545.427 is added to read from South Africa of uranium ore, .
as follows; .
'~
might divert their South African origia uranium oxide, coal, and textiles.
uranium ore and oxide to other I 545A27 Temporary importsin bond of Section 309 of the Act is implemente' d in .
countries, including ths Soviet Union, urs dum ora and oxiae for processing and the South AfricanTransactions .
for conversion, enrichment, or other exp ntatbn. Regulations (" Regulations"),31 CFR Part '-
processing. Uranium paces:Ing is 545, at i 545.211, as set forth in a fmal (a)The prohibition is I $45.211 does normally done under long. term contract, not spply to importation in bond of rule regarding South Africa that is being so that the trade lost due to an published in conjunction with this uranium ore or uranlun oxide produced notice.
erroneous interpretation of the Act or manuNetured in South Africa, when might be foreclosed to the domestic industry well into the future. During the comment period and Treasury such importation is made solely for processing in the United States and .
exportation of the products of that
$Q[D e r's ADDRESSES: Copies of this notice and consideration of comments received, the processing. provided that the following the South AfricanTransactions .
Treasury Department will preserve the requirements are met: -
Regulations are available at the Office position of the public and private (1) The importation of the uranium ore o reign Anets Control,U.S.
demestic industry with respect to Department of the Treasury,1331 C or oxide has been authorized by license contracts covering uranium processing Street NW., Washington, DC 20220.
for export. issued by the U.S. Nuclear Regulatory Commission (NRC), satisfactory FOR FURWER INFORMATION CONTACTt Under interim section 545.427, South evidence of which is presented to the Harrison C.Feese or Louis Alfano U.S.
African uranium ore or oxide may be U.S. Customs Service prior to or at the Customs Service, Office of Commercial imported in bond for proces:Ing and time ofimportationt Operations,1301 Constitution Avenue reexport pursuant to Item No. 864.05 of . NW., Washington, DC 20229 (telephone:
the Tariff Schedules of the United (2) The importation is properly 20 # 586-8651).
States. provided that the imported ore or classified under Item No. 884.05 of the oxide is accompanied by a license for Tariff Schedules of the United States as SUPPLEMENTARY INFCRMATION:Section an importation in bond for processing 309 of the Act (Regulations,5 545.211)
Importation issued by the Nuclear and reexport; and prohibits the importation of uranium cre, Regulatory Commission (the NRC"). uranium oxide, coal, and textiles See 10 CFR 110.27(b)(2). 51 FR 47207 (3)If the uranium ore or oxide was
'd 'd produced or manufactured in South (Dec. 31,1986). In the case of uranium ore or oxide produced, marketed, or ted arasta(1 rg don of Africa. A final rule implementing section South Africa,t eimportationis 309 of the Act, as delegated to the otherwise exported by a parastatal Secretary of the Treasury pursuant to organization of South Africa, the . d
[,"Au st 519 and o no a er Exemtive Order 12571 of October 27
[ importation must be pursuant to a H BB,51 R 39505 p c W . W ,is centract entered into prior to August 15, than Aprill,1987.
published elsewhere in this issue of the 1988 and occur by April 1,1987.See 31 (b)This interim rule shalllapse at midnight on July 1.1987,except with Federal Register.This notice is CFR 545.208(a)(2),51 FR 41907 (Nov.19 published in conjunction with that final 1986). respect to importations made prior to that Mme pursuant to this interim mle, rule to inform interested persons of the Since these regulations involve a guidelines to be employed by the U.S.
foreign affairs function, the provisions of which shall continue to be subject to its Customs Service in determining which the Administrative Procedure Act.5 requirements.
products are subject to the ban of -
i U.S.C. 553, requiring notice of proposed Dated: February 13,1987. section 309. The guidelines are drawn I
rulemaking, opportunity for public R. Richard Newcomb, from the Tariff Schedules of the United participation, and delay in effective p/fector, offic, ofroteign Assets Control. States ("TSUS").19 U.S.C.1202, and l ,
( date, are mapplicable. Because no - include the appropriate ~13US numbers notice of proposed rulemaking is . APPed February 26,1987.
for each prohibited item. Persons with
( required for this rule, the Regulatory Francis Aleating.!L questions concerning product - -
Flexibility Act. 5 U.S.C. 601 et seq., does A ssistant Secretary fEnforcement)-
i classifications should contact the local -
not apply. Because these regulations are (FR Doc. 87-5o73 Filed 3-&87;12.29 pm)
U.S. Customs Service district office or.
l Issued with respect to a foreign affairs sumas coes esto ss.es the office indicated above. In addition, t ! -
_ME_*y_ T __ TA A "
x.. e 4
4 DOLKETED USHRC UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSI% Mt 20 N0 56 BEFORE THE COMMISSION 1< OFflCE OF 3E A M #
00CKETING A S&VICI-In the Matter of ) BRANCH
)
BRAUNKOIILE TRANSPORT, USA, ) Docket Nos. 11003919-22
) License Application
) Nos. IU-87001-02
-) Nos. ISNM-87003-04
)
1 In the Matter of )
)
ADVANCED MUCLEAR FUELS CORP. ) Docket No. 11003928
) License Application
) No. ISNM-87004
)
In the Matter of \
)
)
EDLOW INTERNATIONAL CO. ) Docket Nos. 11003929-31
) License Application
) Nos. IU-87006-07 x ) No. ISNM-87008 1 CERTIFICATE OF SERVICE I hereby certify that copies of "NRC STAFF RESPONSE TO PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING" in the above-captioned proceeding have been served on the following by deposit in the United States mail, first class, or as indicated' by an asterisk through deposit in the Nuclear Fegulatory Commission's internal mail sys-tem, this 19th day of March,1987:
Samuel J. Chilk William L. Robinson, Esq.
Office of the Secretary Gay J. McDougall, Esq.
i U.S. Nuclear Regulatory Commission Kenneth B. Nunn, Esq.
I Washington, D.C. 20555* Lawyers' Committee for Civil Rights Under Law
~ Eldon V. C. Greenberg, Esq. 1400 Eye Street, N.W.
Galloway and Greenberg Washington, D.C. 20005 1835 K Street, N.W.
Suite 801 M. Charles Hill Washington, D.C. 20006 Executive Secretary U.S. Department of State
. 2201 C Street, N.W.
Washington, D.C. 20520 9
0~
R. H. Fisk, Manager Christie M. Clark International Affairs Operations Man 6ger Edlow International Company Braunkohle Transport, USA 1815 H Street, N.W. 3602-B Forest Drive Suite 910 Alexandria, VA 22302 Washington, D.C. 20006 Leonard M. Trosten, Esq. C.W. Malody, Manager Harry II. Voigt, Esq. Corporate Licensing James W. Moeller, Esq. Advanced Nuclear Fuels Corp.
LeBoeuf, Lamb, Leiby a MacRae 2101 Horn Rapids Road Suite 1100 P.O. Box 130 1333 New Hampshire Avenue, N.W. Richland, WA 99352 Washington, D.C. 20036 William Hoffman, Esq. Docketing and Service Section Office of Foreign Assert Control Office of the Secretary U.S. Department of the Trecsury U.S. Nuclear Regulatory Commission 1331 G Street, N.W. Washington, D.C. 20555*
Room 500 Washington, D.C. 20220
< - YY Stephdh H. Lewis Senior Supervisory Trial Attorney 4 .
___ ._.