ML20236P810
| ML20236P810 | |
| Person / Time | |
|---|---|
| Issue date: | 09/21/1987 |
| From: | Chilk S NRC OFFICE OF THE SECRETARY (SECY) |
| To: | |
| References | |
| CON-#487-4832 CLI-87-09, CLI-87-9, NUDOCS 8711190017 | |
| Download: ML20236P810 (21) | |
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. UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
'87 SEP 21 A?39 COMMISSIONERS:
1 Lando W. Zech, Jr., Chairman g,g,
Thomas M. Roberts Frederick M. Bernthal 1
Kenneth M.'Carr Kenneth C. Rogers g
L j-In the Matter of ADVANCED NUCLEAR FUELS CORP.
Docket No. 11003928 License Application (Import of. South African No. ISNM-87005 Enriched Uranium Hexafluoride) l In the Matter of I'
EDLOW INTERNATIONAL CO.
Docket No. 11003929 i
License Application l
i (Import of South African No. 10-87006
[
Uranium Ore Concentrate)
In the Matter of EDLOW INTERNATIONAL CO.
)
Docket No. 11003930 License Application (Import of South African No. 10-87007 Uranium Hexafluoride)
In the Matter of EDLOW INTERNATIONAL CO.
)
Docket No. 11003931 License Application (Import of South African No. ISNM-87008 Enriched Uranium Hexafluoride)
DECISION CLI-87-9
1. Background
On February 17, 1987 seven members of the United States House of Representatives (CongressmenRonaldV.Dellums,MervynM.Dymally,
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William H. Gray, III, Edward J. Markey, Charles B. Rangel, Bill Richardson and Howard Wolpe), the Oil, Chemical and Atomic Workers kDd1Illgj7B70921 IS W B7005 PDR
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International Union,I The Nuclear Control Institute, 'Anerican Comittee on Africa, Transafrica Inc., and the Washington Office of Africa
(" petitioners") filed a Petition for Leave to Intervene and Request for Hearing on eight import license applications.2. Each of the applicants seeks a license to import South African-origin uranium in various forms.
Petitioners sought to intervene principally to argue that issuance of the proposed' licenses would:
(1) violate the Comprehensive Anti-Apartheid Act of.1986 (Public L. No.99-440, 22 U.S.C.
1 965001-5116) (" Anti-Apartheid Act"); (2) be inimical to the common I
defense and security of the United States; and (3) violate the international legal obligations of the United States with respect to Namibia.
On June 12, 1987, the Comission granted the petition for leave to intervene and hearing request. CLI-87-6, 25 NRC
, 52 Fed. Reg.
i 23091(June 17,1987). The Comission invited the petitioners, applicants, Executive Branch, and any other member of the public to submit written comments to the Comission by July 13, 1987, on the issues raised by the eight import license applications.3 Participants i
could file reply coments responding to the views of other participants IThe Union subsequently withdrew from the petition.
2 Petitioners subsequently amended their petition to include three additional parties--Robert L. Chavez, New Mexico State Senator Carlos Cisneros, and Henry Isaacs.
3 0n July 29, 1987 Braunkohle Transport, USA withdrew three of its applications, Numbers 10-87001, 10-87002 and ISNM-87003. Previously, on March 13, 1987, it had withdrawn Application Number ISNM-87004.
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3 by July'28, 1987..The Comission, at the request of Atlas Corporation, subsequently extended the date for submitting reply coments to August 4, 1987.
. Although the Commission invited participants to address any issue they deemed relevant, the Commission indicated that it was particularly interested in receiving detailed legal analyses, based on a ' review of w
the legislative history of the Anti-Apartheid Act, on four questions:
1
-(1) Did Congress bar only the import of uranium ore and uranium oxide, or did Congress intend to bar all forms of uranium?; (2) Does the-
'1 import bar cover imported uranium regardless of its intended end use, or does it bar only the import of uranium which will be used I
domestically and not reexported?; (3) Did Congress bar South African-origin uranium ore and uranium oxide which has been "substantially transformed" into another form of uranium in countries other than South Africa?; and (4) Did Congress assign to the Executive
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Branch, or to the NRC, or to both, the responsibility fcr interpreting the scope of section 309(a) of the Anti-Apartheid Act and for implementing that section?
The Comission received 14 timely filed initial comments and 2 timely filed reply comments.4 Only three participants--petitior.ers, 4The Commission has not considered comments that were not timely filed.
For example, Taiwan Power Company submitted initial comments on July 29, 1987, and the U.S. Committee on Energy Awareness submitted its initial comments on August 7,1987, long after the July 13 deadline for submitting initial coments.
It would be unfair to petitioners and the other commenters to consider these late comments because they were not given a reasonable (FootnoteContinued) l
)
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. Atlas Corporation (" Atlas") and Advanced Nuclear Fuels Corporation L
("ANF") provided the detailed legal analysis requested by the Comission.
The other participants, with the exception of the Sequoyah l
Fuels-Corporation, submitted short statements asserting that consistent with'the objectives of the Anti-Apartheid Act, all imports of South
'i' African-origin uranium should be barred.
Sequoyah fuels Corporation argued that all uranium imports for domestic consumption should be barred.
In its view, uranium imports for the purposes of processing and reexport should be pennitted.
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II. Request for Oral Argument In their comments, petitioners requested that the Comission hold oral argument to permit them to explicate their positions on the legal issues raised by these applications and to permit them to respond to any questions that the Commission might have. The Comission has 1
l concluded that oral presentations are unnecessary.
The participants have set forth their views in writing and the Commission believes that based on these submissions it fully understands the positions of the (FootnoteContinued) opportunity to reply to them. The U.S. Comittee on Energy Awareness coments in fact were not submitted until after the other participants had submitted their reply coments. Although Atlas had requested and received an extension until August 4 to submit its reply coments, it did not submit them until August 6.
It should have sought another extension prior to August 4.
The Comission has made clear that parties to its proceedings are expected to comply with applicable time limits.
If parties cannot act within the specified time period, extensions are to be sought prior to the expiration date.
See philadelphia Electric Company (Limerick Generating Station, Units 1 and 10-CLI-86-5, 23 NRC 125, 126 (1986).
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5 participants and has sufficient information upon which to base its decision. Accordingly, the request for oral argument is ' denied.
I III. Sumary of Decision For reasons' stated out in this Decision, the Comission has concluded that section 309(a) of the Anti-Apartheid Act, 22 U.S.C.
55059(a), bars the import of uranium ore and uranium oxide, regardless of its intended end use.
Importation of other forms of uranium is not barredbysection309(a). South African-origin uranium ore and uranium l
I oxide which is transformed into uranium hexafluoride or other substantially transformed uranium compounds before it is imported into the United States is also not barred. Because the Comission's interpretation of the scope of section 309(a) of the Anti-Apartheid Act-is identical to that adopted by the Department of the Treasury, the Commission has not found it necessary to address issues that would have arisen had the two agencies adopted different interpretations of the Act.
The NRC staff is directed to act on'the four pending import license applications in accordance with this decision.
IV. Analysis of Pertinent Issues Our analysis begins with a discussion of the four questions posed in the Commission's June 12, 1987 Order.
A.
Did Congress bar only the import of uranium ore and uranium oxide, or did Congress intend to bar all forms of uranium?
1
1 i-6 (1) Arguments of the Parties Section 309(a) of the Anti-Apartheid Act provides that i
"...no-(1) uranium ore, (2) uranium oxide (3) coal, or (4) textiles, that is produced or manufactured in South Africa may.be imported into l
the United States."
L A majority of the participants, including petitioners and Atlas, contend that the literal language of the statute does not reflect Congressional intent.
They argue that Congress intended to bar all uranium imports, not just imports of uranium ore and uranium oxide.
I They contend that such an interpretation furthers the spirit, objectives, and. policies of the Anti-Apartheid Act.
Petitioners argue that there is no rationale for limiting the scope of section 309(a) to the forms of uranium found only at the beginning and the end of the conversion and enrichment process, while allowing imports of intermediate forms of uranium, such as uranium herafluoxide(UF).
Petitioners submit that all that matters is 6
whether the raw material originated in South Africa. Petitioners further argue that oxide and hexafluoride forms of uranium are essentially interchangeable in the marketplace.
In this regard, petitioners note that in 1985 most of the South African uranium entered the United States in oxide form, but that in 1986, in anticipation of the Anti-Apartheid Act, importers brought in most of the imported uranium as a hexafluoride. Accordingly, petitioners assert that a narrow reading of section 309(a) would permit the imports of UF6
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7 thereby effectively nullifying the Congressional prohibitions, something Congress could not have intended.
Atlas also argues that Congress did not intend the terms uranium oxide and uranium ore to mean only ore in its natural state or chemical oxides, but instead used these tenns to mean " processed" and
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" unprocessed" uranium. Atlas asserts that no other meaning can be rationally imputed, noting that uranium ore is typically processed into a nitrite or oxide form known generically as yellow cake (and referred to generally as uranium oxide (U 0 ).
After conversion to uranium l
38 I
hexafluoride (UF ) for enrichment, the uranium is returned after 6
enrichment to an oxide form for fuel fabrication. Atlas argues the l
oxide step covers the entire fuel cycle from the extraction of the ore from the mine to the insertion of the fuel into the reactor core.
In j
1 support of its position, Atlas cites floor statements of various i
Congressmen, which do not explicitly address the scope of the import bar, but which in Atlas' view can be reasonably construed to mean that the Congressmen thought the bar extended to all forms of uranium.
Finally, petitioners and Atlas both note that in the Senate debate on the Dole Amendment, which would have deleted section 309, 132 Cong.
Rec. S11851-53 (daily ed. August 15,1986), Senators Ferd and McConnell of Kentucky spoke in favor of the amendment, claiming that a uranium import bar would eliminate jobs at government enrichment facilities in c
Kentucky and Ohio. The plant in Paducah, Kentucky is an enrichment as feed.
Petitioners argue that if the bar did plant which uses UF6 not apply to UF, then there would be no reason for Senators Ford and 6
__m.
8 McConnell to oppose section 309 in order to protect the jobs of plant l-workers.
ANF reaches a different conclusion, arguing that Congress intended to bar only the import of uranium ore and uranium oxide, as reflected in the plain language of the statute. ANF argues that in the Anti-Apartheid Act when Congress wanted to har a product and aU of its by-products and derivatives it did so, quite explicitly. For example, in Section 319 of the Act, Congress specified that no " agricultural commodity, product, by-product, or derivative thereof" may be imported from South Africa. ANF asserts that the United States Court of International Trade in Springfield Industries Corp. v. United States, SlipOp.No.87-56(May11,1987) had adopted this analytical approach in interpreting another section of the Anti-Apartheid Act.5 There the Court held that Section 320 of the Act, which bars imports of iron and steel, did not bar imports of South African wire strand, which is an advanced product made from steel.
(2) Commission Decision After evaluating the comments, the Commission has concluded that the proper interpretation of Section 309(a) is one that gives effect to the plain language of the statute--that Congress only intended to bar uranium ore and uranium oxide; the bar does not extend to other forms of uranium. The Supreme Court has held that the plain meaning of a
.1 5The Government's appeal of this decision is pending. United States v. Springfield Industries No. 87-1469 (Fed. Cir.).
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statute must prevail unless there is " clear evidence" of a " clearly expressed legislative. intention" to.the contrary. Bread Political-Action Committee v. Federal Election Commission, 455 U.S. 577, 581 (1982).
See. Chevron, U.S. A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 842-43 (1983); American Civil Liberties i
Union v. FCC, No. 85-1666, slip op at 37-40 (D.C. Cir., July.17, 1987).
Here Congress' explicit prohibition of uranium ore and uranium
- oxide, contrasted with its failure to include uranium hexafluoride 1
(UF ), cannot simply be regarded as mere happenstance or oversight.
6 are commonly used and Uranium ore, uranium oxide (U 0 ) and UF6 38 understood technical tenns which are accepted throughout the nuclear j
industry. They precisely and unambiguously. identify completely
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different forms of uranium utilized at separate stages of the. nuclear fuel cycle. Uranium ore consists of the raw mineral, which must be
]
milled in order to produce uranium oxide, U 0
- U0 is then converted 38 38 in a separate process to uranium hexafluoride (UF ).
As Petitioners, 6
' Atlas and ANF all recognize, UF is an entirely different compound from 6
U0. UF is enriched to increase the concentration of the 3g 6
radioisotope U-235.
Enriched UF is then converted to an oxide form 6
for subsequent compression and machining into fuel pellets. Entirely 1
different industrial processes are utilized at each stage in the 4
refining and enrichment chain of the fuel cycle.
In fact, as Sequoyah l
Fuels Corporation, one of the two U.S. companies that converts U 038 to UF, not'ed in its comments, the user of nuclear fuel must obtain from j
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fuel elements. Thus, uranium oxide and uranium hexafluoride are not 1
essentially interchangeable as petitioners contend.
When Congress uses technical terms with clear and precise meanings such as uranium ore and uranium oxide, it must be presu:ned that Congress intended to use the tenns in accordance with their traditional meanings. See Corning Glass Works v. Brennan, 417 U.S.188, 201 (1974); In Re Ann Arbor Railroad Co., 414 F. Supp. 812.(E.D. Mich.
1976). Accordingly, we cannot presume based on the facts set.forth I
above, that Congress used the tenns to include uranium hexafluoride.
Even if one looked beyond the text of the statute to ascertain Congressional intent, the legislative history does not persuasively reveal that Congress intended to bar all uranium imports, as petitioners and Atlas contend. The legislative history contains no references to uranium hexafluoride or to " processed" or " unprocessed u rani um".
The pertinent Committee Reports stated that the ban would extend to imports of " uranium ore and uranium oxide". There is no indication in these reports that these terms included all forms of uranium.
See H.R. Rep. No. 638, Part 2, 99th Cong. 2d Sess. at 6 (1986); 3. Rep. No. 370, 99th Cong., 2d Sess, at 14 (1986).
Various statements made by Congressmen during the floor debates before Congress initially passed the legislation or after the President vetoed the legislation, but before Congress overrode his veto, are inconclusive.
In some instances the proposed sanctions were described to include " uranium", e.g.132 Cong. Rec. H3873-74 (daily ed. June 18,
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11
.1986) (Remarks of_ Representative Richardson); 132 Cong. Rec. H6778 a)
(daily ed. Sept. 12,1986)'(RemarksofRepresentativeWolpe);'atother times, the bar was described to cover " uranium ore" and " uranium-oxide."
132 Cong. Rec. 8660 (daily ed. September 29,1986)(Remarksof Representative Richardson). The legislative history cannot fairly be read to express a clear Congressional intent different from the plain meaning of the statute. Under these circumstances, the plain meaning of the statute must prevail. The Comission thus concludes that only imports of uranium ore and uranium. oxide are barred by section 309(a).6 b
The-Treasury Department has reached the same conclusion. See 31 C.F.R.
9S45.211(a).
B.
Does the import bar cover imported uranium regardless of its intended end use, or does it bar only the. import of uranium which will be used domestically and not reexported?
At the time the Comission issued its June 12,1987 Order f
soliciting public comments, this was a significant unresolved issue.
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In interim regulations published on March 10, 1987, the Treasury Department adopted a preliminary view that the import bar applied only to uranium ore and uranium oxide intended for domestic consumption.
52 Fed. Reg. 7272 (March 10, 1987).
However, after receiving public coments and more fully considering this matter, the Treasury Department allowed its interim regulations to expire. Accordingly, as 6The Comission notes that section 303 of the Anti-Apartheid Act prohibits the import of an article grown, produced or manufactured by(a "parastatalFootno l
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thin'gs now stand, all uranium ore and oxide is barred pursuant to
-31 C.F.R. I 545.211(a) regardless of its endause.
-(July 7, 1987).
Because Treasury Department regulations bar the import of South 7
African-origin uranium ore and uranium oxide, regardless of its I
. intended end use, the issue is now moot. Even if the Commission were e
to conclude that' Congress did not intend to bar uranium ore and oxide imports if the material is brought in solely for further processing and L
reexport, the Treasury Department's current regulations would bar such 1
-imports. Accordingly, there is no live issue for the Commission to resolve. Moreover, our own review of this issue convinces us that the Treasury Department's interpretation is correct. The plain language of the statute bars the importation of uranium ore and uranium oxide regardless of its intended end. Nothing in the legislative' history compels us to adopt a contrary interpretation.
C.
Did Congress bar South African-origin uranium ore and uranium oxide which has been "substantially transformed" into another form of uranium in countries other than South Africa?
(1) Arguments of the Parties The question before the Commission is whether South African-origin uranium ore or uranium oxide that is transformed into uranium hexafluoride or into enriched uranium hexafluoride in other countries (Footnote Continued) organization" of South Africa.
Incontrasttosection303(a),thissection bars all uranium imports from parastatal organizations.
q, c.
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. should be considered South African uranium ore or uranium oxide and' L
thereby barred from importation.
In its regulations implementing the.
.. Anti-Apartheid Act, the Treasury Department has concluded that uranium hexafluoride and other articles which are produced from uranium ore or uranium oxide have been "substantially transfonned" and are no't subject to the import bar.
31.C.F.R. 9545.425.
The petitioners and Atlas disagree with this Treasury Department finding.
Petitioners argue that the substantial transformation
~ doctrine cannot be invoked to evade the. Anti-Apartheid Act'sLimport prohibitions. _ They further contend that even if the doctrine were applicable UF is not a-substantially transformed product if the 6
traditional three-part test used by. the Customs Service is applied.
They argue that conversion of uranium oxide into uranium hexafluoride is~not a sufficient change in character to meet this part of the test;.
that uranium hexafluoride does not have a use that is distinct from its precursors because it is part of a continuous process that eventually leads to nuclear fuel fabrication; and that the change in name,
'normally the weakest evidence of substantial transformation, should not be given great weight.
Atlas asserts that there is nothing in the legislative history suggesting that South African material can be imported into the United States so long as it is processed abroad.- It then argues that UF is 6
e not a substantially transformed product because the conversion of uranium ore to uranium hexafluoride is relatively easily done, this i
conversion is a trivial part of the cost of manufacturing nuclear fuel, 4
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14 and does not change the end use of the uranium from its original state.
Atlas further contends that to the extent that the Commission' intends a l
is a substantially transformed technical inquiry into whether UF6 product, this is a factual issue that can only be resolved through use of formal adjudicatory procedures. Accordingly, Atlas requests that the Commission order a formal adjudicatory proceeding to resolve this issue.
ANF takes a contrary position.
It contends that to bar substantially transformed forms of uranium ore and uranium oxide would be contrary to the plain meaning of the statute, and that there is no legislative history to support a bar of substantially transformed uranium.
It further argues that converting uranium oxide to uranium l
hexafluoride constitutes substantial transformation of the material.
i With respect to this point, ANF argues that the conversion of U 038 to UF is a significant step in the process of the eventual manufacture of 6
1 nuclear fuel, noting that the conversion is performed in large chemical complexes. The cost of converting uranium oxide into enriched uranium hexafluoride according to ANF is higher than the cost of mining and milling the uranium. ANF states that the cost of converting and enriching uranium constitutes more than 50 percent of the final value of the enriched uranium, and that this fifty percent is normally added in Western Europe. ANF further asserts that uranium from various countries is commingled during the physical processing stage so that in o
nomal circumstances enriched uranium hexafluoride produced in Western Europe cannot be physically traced to uranium of South African origin.
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1 15 Thus, it argues that uranium hexafluoride emerges from the manufacturing process as a substantially transformed product with a name, character and use differing from the original material.
ANF also argues that petitioners erroneously view the Anti-Apartheid Act as legislation imposing comprehensive and complete economic sanctions.
In contrast, ANF views the Act as imposing only.
carefully selected, limited sanctions which do not encompass uranium hexafluoride imports.
It asserts that if Congress had intended to impose comprehensive sanctions it would have enacted a complete trade embargo.
Instead, Congress selected a limited number of products whose I
importation would be barred, as evidenced by the more than $350 million worth of United States products that were imported from South Africa during the first quarter of 1987.
Petitioners in their reply comments claim that ANF provided misleading cost data because the ANF analysis includes the costs of both conversion and enrichment.
Petitioners contend that it is only the cost of conversion which is relevant to this proceeding, and that conversion costs are generally between two and four percent of the cost of producing nuclear fuel.
Petitioners assert that the cost of is or is not a enriching uranium has no bearing on whether UF6 substantially transformed product.
(2) Comission Decision Under United States Customs Service regulations, absent a statutory exemption, every article of foreign origin imported into the United States must contain a conspicuous marking identifying the
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. country of origin of the article.
19 C.F.R. 5 134.11. The Customs l
Service. defines the country of. origin to be the country that manufactures, produces or grows the article of foreign origin entering l
the United States.
Further work or material added to an article in another country must effect a " substantial tran.sformation" in order to render such other country the " country of origin".
19 C.F.R.
v 6134.1(b).
4 There is no litmus test for determining whether a product has been substantially transformed; each case must be decided on its own facts.
I The Customs Service and the courts have, however, consonly employed a three-part test in detennining whether a product has been substantially transformed. They look to see whether as a result of the manufacturing processes a new and different article emerges, having a (1) distinctive name, (2) character, or (3) use, which is different from that L
originally possessed by the article or material before being subject to the manufacturing process.
See e.g., 19 C.F.R. 5 10.14(b); Anheuser-j Busch Brewing Association v. United States, 207 U.S. 556 (1908);
Torrington Co. v. United States 764 F.2d 1563 (Fed. Cir.1985);
Texas Instruments, Inc. v. United States, 681 F.2d 778 (C.C.P.A.1982);
Uniroyal Inc. v. United States, 542 F. Supp.1026 (Ct. Int'l Trade 1982), aff'd 702 F.2d 1022 (Fed. Cir. 1983),
The Commission has concluded that the Treasury Department's i
is a substantially transformed product is a sound one finding that UF6 and has reached the same conclusion. As discussed earlier, the plain language of section 309(a) bars the importation of uranium ore and l
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- uranium oxide. The legislative history does not reveal a Congressional intent to bar the import of e potentially transformed uranium product from countries other than South Africa. Moreover, there is no indication that traditional customs law, including the substantial transformation doctrine described above, is not to be' applied in i
implementing the Anti-Apartheid Act.
Furthermore, the Connission believes the doctrine of substantial transformation applies to uranium regardless of its chemical or physical form, when the commonly-employed criteria for determining substantial transformation are met.
l The Treasury Department, the Executive Branch agency responsible
,for implementing Section 309(a) of the Anti-Apartheid Act under Executive Order 12571,(51 Fed. Reg. 39505 (1986)), has concluded that UF meets the traditional tests for determining whether a product has 6
been substantially transformed.
The Connission should and will give great deference to that finding since the Treasury Department has long experience and great expertise in applying the substantial transformation doctrine; the NRC has never previously been called upon to apply that doctrine.
Moreover, based on its familiarity with the uranium fuel cycle, the Commission believes that the Treasury Department finding is a reasonable one. Uranium oxide must be converted into uranium j
hexafluoride before it is enriched.
In our view this is an independent i
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step in the fuel fabrication process which changes the name, character, t
and use of the uranium. The technical, chemical name of the product is changed from uranium oxide to uranium hexafluoride.
Its character also t
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l 18 changes. At room temperature, UF is a white, volatile solid. At a 6
temperature approximately 147* F and a pressure of 22 pounds per square inch, UF melts to form a colorless liquid of high density.
At 6
changes into a gaseous physical somewhat higher temperatures the UF6 form. At this point the material has a new use.
It can be used for uranium enrichment. The product of uranium enrichment, enriched uranium, could not have been made if the material had been left as uranium oxide.7 l
Several of the participants have commented on the costs of l
I conversion, noting that some courts have taken this factor into account in applying the substantial transformation doctrine.
See e.g.,
Uniroyal v. United S+.ates, supra. The record generated on this issue contains conflicting information. However, the Commission believes that it is not necessary to make a finding on this matter, because that i
information is not essential to our analysis. Because it is so clear that the name, character, and use of the product have been changed, we find that UF is a substantially transformed product. No formal 6
adjudicatory hearing is necessary to reach this factual conclusion.
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7We further note that for purposes of the Tariff Schedules of the United l
States ("TSUS") uranium ore, uranium oxide and uranium hexafluoride are treated as separate products. Uranium ore is classified as a metal and is under Schedule 6, TSUS ITEM No. 601.57. Uranium oxide and uranium hexafluoride are classified as chemicals under Schedule 4 TSUS ITEM Nos. 422.50 (oxide) and 422.5220 (hexafluoride).
l' 19 R
D.
Did Congress assign to the Executive Branch.or to the NRC, or to both'the responsibility for interpreting the scope of section 309(a).of the Anti-Apartheid Act and for implementing that section?
-The Connission's interpretation of Section 309(a) of.the Anti-Apartheid Act'is fully consistent with that of the Treasury J
q l
Department, as reflected in that agency's regulations, 31 C.F.R.
- l Part 545. Accordingly, the Conunission need not resolve questions that -
would have been presented regarding the two agency's respective b
authorities had the NRC's interpretation of Section 309(a) differed from that of the Treasury Department, l
E.
Other Issues Petitionersassertthatevenifsection309(a)doesnotforma basis for denying the pending import license applications, their issuance would be inimical to the common defense and security of the United States and would violate U.S. international legal obligations with respect to Namibia.
The Commission disagrees with the petitioners and refuses to make l
an inimicality finding. Congress has carefully considered the scope of i
the sanctions that are to be imposed against South Africa because of apartheid.
It has not chosen to impose a trade embargo on all South African goods; instead it carefully selected those items that would be j
subject to import restrictions.
The Commission finds no justification for making findings that neither Congress nor the Executive Branch have made. Congress and the Executive Branch are in a far better position i
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20 than the Commission to detennine _whether South African imports are inimical to the common defense and security of the United States or should be barred to promote foreign policy objectives. Under the circumstances, the Coninission is unwilling.to find that imports not g
- barred by the Anti-Apartheid Act are inimical to the common defense and
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security of the United States.
With respect to Namibia, under Section 3(6)(B) of the E
Anti-ApartheidAct,22U.S.C.E5001(6)(B),Namibiaistreatedaspart of South Africa. Accordingly, under the Commission's interpretation of l
section 309(a) of the Anti-Apartheid Act set forth above, imports of uranium ore and uranium oxide from Namibia are barred. Again, Congress has made a judgment regarding which imports from Namibia are barred and the Commission refuses to act in a manner inconsistent with Congressional intent.
.I One other matter merits comment.
In Western Nuclear v. Huffman,
.F.2d
,(10thCir, July 20,1987), the Court of Appeals
]
affirmed a lower Court opinion enjoining the Department of Energy from 1
i enriching foreign source uranium'for domestic end use.
That decision i
l has no legal bearing on the Commission's decision today.
The issues I
before the Commission involve what forms of South African-origin uranium can be imported under section 309(a) of the Anti-Apartheid l
l Act--not whether uranium that is pennitted to be imported can be o
i further processed by the Department of Energy.
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' Directions to the NRC Staff Based on the conclusions set forth above, the Director, Office of Governmental and Public Affairs, is directed to act promptly in accord with-this Decision on each of the four pending import license applications.- The Director is not required to consult with the Commission on this matter befce acting.-
' Commissioner Roberts was unavailable to participate in this Order.
It is so ORDERED.
- Frthe1 emission.
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Een jg"sMr h,,D w ggy.6 Samuel J.
- ilk, Secretary f the Comissi Dated af W u hiagton D.C..
.this 21st day of September, 1987 l
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- Chairman Zech was not present for the affirmation of this Order.
If he had been present, he would have approved it.
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