ML20209C191
| ML20209C191 | |
| Person / Time | |
|---|---|
| Issue date: | 11/26/1986 |
| From: | Parler W NRC OFFICE OF THE GENERAL COUNSEL (OGC) |
| To: | Asselstine NRC COMMISSION (OCM) |
| Shared Package | |
| ML20209A941 | List: |
| References | |
| NUDOCS 8704280614 | |
| Download: ML20209C191 (15) | |
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November 26, 1986 MEMORANDUM FOR: Commissioner Asselstine FR'OM: William C. Parler Q
. General Counsel
SUBJECT:
LEGAL-ANALYSIS OF SECTION 309(a) OF THE COMPREHENSIVE ANTI-APARTHEID ACT OF 1986 (P.L.99-440)
' Section 309fa) of the Comprehensive Anti-Apartheid Act of 1986 .
I
{ oxide from South Africa into the United States after December 31, i
1985 In a memorandum to me dated November 19, 1986, you asked
- the' Office of the General Counsel to analyze section 309(a) focusing specifically on whether the import of uranium hexafluoride or other non-oxide forms of uranium ore from South Africa is permitted under the Act. For reasons set forth in the enclosed legal analysis, OGC concludes that imports of uranium hexafluoride or other non-oxide forms of uranium ore are not barred under Section 309(a) of this Act.
! In our analysis we also address two other significant questions i regarding the interpretation of Section 309 (a) . The first is whether the bar extends to South African uranium ore or uranium oxide that is imported into the United States for further
. processing, such as transformation into uranium hexafluoride or enriched uranium, and then exported to another country. We
- believe the better reading of the law is that such imports are barred.
Finally, we address the question whether the bar covers South ;
African uranium ore or uranium oxide that is exported to
- a country other than the United States where it is converted to uranium hexafluoride or enriched, and then sent by the processing country to the United States. We state that under our present understanding of Customs Service law, if a product originating in
- one country has been "substantially transformed" in another country the transformed product is not considered to hav'e come from the originating country. The question to be resolved 8704280614 B70422 PDR COMMS NRCC CORRESPONDENCE PDR
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therefore is whether uranium hexafluoride or enriched uranium is a substantially different product than uranium ore or uranium oxide. It is our understEnding that these products may be viewed as being substantially different.
In any event, before promulgating our regulations implementing the Anti-Apartheid Act, it is our understanding that we will have the benefit of the Executive Branch's views on these matters.
Enclosure:
Legal Analysis cc: Chairman Zech Commissioner Roberts Commission &r Bernthal Commissioner Carr EDO
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LEGAL ANALYSIS Section 309(a) of the Comprehensive Anti-Apartheid Act of 1986 (P.L.99-440) provides that "...no- (1) uranium ore, (1) uranium oxide (3) coal, or (4) textiles, that is produced or manufactured in South Africa may be imported into the United States." There are several questions raised regardino the scope of this prohibition. The first question we will address is whether the import of uranium hexafluoride or other non-oxide forms of uranium ore from South Africa is permitted under the Act. For reasons set forth in this memorandum, OGC concludes that imports of'hexafluoride permitted.
or other non-oxide forms of uranium ore are The text of Section 309 (a). is clear. Read literally it only bars the importation of uranium ore and uranium oxide. Even though the statute is clear on its face, in construing the section an
examination of the leaislative history is warranted. The Supreme Court has repeatedly asserted that "[w] hen aid to construction of the meanina' of words, as used in the statute, is available, there certainly can be no ' rule of law' which forbids its use, however clear the words may appear on ' superficial examination'."
Train v. Colorado Public Interest Research Group, 426 U.S. 1, 10 (1976), quoting United States v. American Truckina Associations, 310 U.S. 534, 543-544 (1940). In evaluating a clearly worded
^
statutory provision in light of its legislative history, the plain meaning of the statutory provision is to 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). Here, there is no pre-enactment leaislative history indicating that Congress intended the bar to include uranium hexafluoride or 4
other non-oxide forms of uranium.
The House Bill, J.R. 4868, as introduced, contained no reference to uranium hexafluoride in its section banning the import of uranium ore and uranium oxide.y No hearings were held on the bill in the House Foreign Affairs Committee or in the House Ways and Means Tommittee. Hearings were held in the House Committee on Banking, Finance and Urban Affairs and in the House Rules Committee. The House Committee on Foreign Affairs in its report on H.R. 4648 (H.R. REP.99-638, Part 1) did not discuss the
- prohibition in detail.
That discussion did not indicate that the
- bar extended to uranium hexafluoride or other non-oxide forms of uranium. Thereafter, H.R. 4868 was debated in the House on
, June 18, 1986. No references to the import ban, except for The NRC staff has advised OGC that from a technical i
perspective, uranium hexafluoride is not uranium oxide.
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restatement of the statutory proviNion, were made. The House passed the bill tha.t day.
The Senate Bill, S.2701, as introduced by Senator Lucar, (132 CONG. REC. S9889-9898, daily ed.' July 30, 1986), contained no provision equivalent to Section 309 (a) , although it did contain a provision, Section 303, prohibiting the import of an. l article grown, produced or manufactured by a "parastatal !
organization" of South Africa.# Senator Lugar noted in his introductory remarks that the prohibition would cover uranium, among other things. After hearings, S.2701 was reported out by the Senate Foreign Relations Committee. As reported, it contained in Section 311 a ban on the import of uranium ore and uranium oxide. 'The Report (S. REP. No.99-370) contained no indication that uranium hexafluoride fell within the scope of the import bar. The Senate Bill was debated in the Senate on .
Auaust 13, 14, and 15, 1986. No reference to a ban on the import
,# of ura.nium hexafluoride or other non-oxide forms of uranium can be found in the debates.
After the President vetoed the legislation, the House and Senate debates on whether the veto should be overridden did not address l the uranium hexafluoride issue. (132 CONG. REC. H.8649-8672, l daily ed. September 29, 1986; 132 CONG. REC. S.14629-14660,
, daily ed. October 2, 1986.)
There is some post-enactment " legislative history". After Congress had overridden the President's veto and the leaislation i
became law, Senator Lugar sent a letter on October 14, 1986 to Secretary of State Shultz in which he stated that Conaress had not intended to include uranium hexafluoride in the list of banned items. Senators Bingaman and Kennedy and Congressmen Richardson, Wolpe, Dellums, Leland and Markey took a contrary position in a letter they jointly sent to President Reagan on -
} October 31, 1986. They expressed concern about reports that the j
Treasury Department intended to bar only uranium in the form of raw ore or in a specifi~c oxide compound. The authors argued that such an interpretation would be contrary to Congressional intent
' and that to apply the ban only to ore or to. oxide allows easy circumvention of the sanctions, since concentrates can be readily converted to uranium hexafluoride elsewhere and then imported into the United States. The Congressmen asserted that both the House and the Senate intende,d to bar the importation of all South African uranium. -
l Not only are these letters conflicting and thus not conclusive, i they are entitled to little or no weight in interpreting Section '
l 2"Parastatal organization" was defined as a corporation or partnership owned or controlled by the South African Government.
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I 309(a). Statements made by Congrsssmen after the passage of legislation, however explicit, cannot serve to change the legislative intent of Congress expressed before an act's passage.
Rather, such statements represent only the personal. views of the legislators since the statements were made after passage of the statute.
Bread Political Action Committee v. Federal Election Commission, 455 U.S. 577, 582.n3 (1982); Regional Rail Reorganization Cases, 419 U.S. 102, 132 (1974).
Because the text of the statute clearly indicates that the import bar is applicable only to uranium ore and uranium oxide and we found no pre-enactment legislative history'to the contrary, OGC concludes that.the Section 309(a) bar does not app hexafluorideandothernon-oxideformsofuranium.}ytouranium Perhaps the most significant question concerning the scope of Section 309(a) is whether the import bar extends to uranium ore or uranium oxide that is imported for enrichment or other i
processing.and subsequent re-export. Again a natural reading of the text of Section 309(a) would lead one to conclude that there are no exceptions to the imporg bar. However, there is some pertinent legislative history 1
The Senate Foreign Relations Committee in describing the import
- ban stated
l Imports of South African uranium ore, uranium oxide and coal are banned. The ban takes effect 90 days after enactment-to l permit goods already purchased and in transit to be l imported. After this date, nowever, no South African uranium ore, uranium oxide, or coal can be imported into the United States.'
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! 3 We note though that import of such substances would be barred by section 303 if the material came from a "parastatal organization
- of South Africa. That section, which is broader i than section 309, bars the import of any article (with a few specified exceptions not applicable here) which is grown, i
produced, manufactured by, marketed, or otherwise exported by a parastatal organization. A list of parastatal organizations has been published by the State Department in the Federal Register (51 Fed. Reg. 41912, November 19, 1986).
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The Senate legislative history is more authoritative than that of the House in interpreting this legislation. After the j Senate passed S. 2701, the House adopted the Senate version, rather than the version it had previously passed. This obviated the need for a conference committee. :
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. 4 This language can be construed to indicate that there are to be no imports of uranium ore or uranium oxide into the United States after December 31, 1966, regardless of the intended end-use cf the material. However, a contrary view can be found in Senate debates.
Senator McConnell offered an amendment on the Senate floor that
' would have eliminated the bar on the import of uranium ore and uranium oxide. 132 CONG. REC. S. 11851 (daily ed. August 15,
. 1986). During the course of the debate on the amendment, a colloquy purportedly occurred between Senate Foreion Relat CommitteeChairmanLugar,andSenatorsMcConnellandFord.gonsIn the colloquy Senator Lugar in discussing the proposed import ban stated:
i
.' The bill is not designed to have any punitive impact except on products which are imported into the United States for consumption in the United States. I think economists have defined a distinction between temporary imports and imports i
for consumption. It is the latter that we are targeting when we refer to imports in this bill. '
Sena' tor Ford, a Democrat, responded:
I appreciate the chairman's reassurance. I have had j discussions with the leadership on my side of the aisle and we share your interpretation of the bill's intention.
Senator McConnell concluded the dialogue by assertina:
I thank the Senator from Indiana [Lucar) for his indulgence and his thoughts.
After that colloquy and before the Senate vote on the McConnell amendment, Senator Sarbanes asserted that the amendment should be defeated because it would undo the import bar, which had been overwhelmingly adopted by the Senate Foreign Relations Committee.
I This collo,uy did not ' appear in the Congressional Record of i
August 15, 1986. Sometime thereafter, the Senators discovered its absence and asked that the colloquy be included in the permanent bound edition of the Congressional Record. It is our understanding that the colloquy will be published in the bound version. Senator Kennedy argues that the colloquy never took place, that it is not_ valid legislative history, and that the l views expressed there do not represent the will of Congress.
1 132 CONG. REC. S17319 (daily ed. October 18, 1986). For purposes j of this memorandum, we presume the colloquy took place.
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The McConnell amendment was then defeated 56-40.6 The question is how much weight should be given-to the Lugar-Ford-McConnell colloquy. Traditionally, floor Etatements made by the chairman of the committee managing the bill on the floor, here Senator Lugar, are regarded as being like supplemental committee reports and are accorded similar weight.
Sutherland Stat const S48.14 (4th Ed. 1984). Because there is conflicting legislative history, one could conclude that the plain meaning of the statute along with the consistent explanation in the Foreign Relation Committee's Report, should be given effect because there is no " clear evidence" of a " clearly expressed legislative intention" to the contrary. Bread Political Actibn Committee v. Federal Election Commission, 455 U.S. 577 (1982).
" This same conclusion can be reached by analyzing whether the natural reading of the text as reflected in.the Senate Committee Repcrt or the view reflected in the Lugar-Ford-McConnell s
l colloquy, best effectuates the purposes of the legislation. !
In our view the purposes of the legislation are cogently articulated by the House Ways and Means Committee in its Report {
on the legislation. The committee in explaining the rationale for 1
the import sanctions asserted:
The import prohibitions are considered to be an important element of the overall package of economic sanctions included in H.R. 4868 to exert pressure on the Government of South Africa to eliminate the apartheid system and its illegal occupation of Namibia. The particular products subject to the import ban were selected because they are 3 important to the economies of South Africa and Namibia and i are major components of their overall foreign exchange 6
Here again there is some post-enactment legislative history that should be given little, if any, weight. Senator Lugar in his October 14, 1986 letter to Secretary Shultz, mentioned earlier, stated that it was the mutual understanding of Senators
' McConnell, Ford and Lugar that the ban did not reach uranium imported only for reprocessing and subsequent export and that any 4
other interpretation would clearly be at odds with our "
discussion *.
In the Senate debate on a Resolution (H.J. Res. 756) making technical corrections to the legislation, after the President's veto had been overridden, Senator Kennedy stated that he interpreted the Act differently. He stated that Section 309 banned all imports, regardless of whether they were intended for consumption in the United States or re-export to other countries.
1 132 CONG. REC. S17319 (daily ed. October 18, 1986).
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earnings, and are not materials which may be needed for U.S.
national security. A prohibition of imports from South Africa and Namibia of the particular products covered will i not have an adverse impact on the United States economy or on supplies of strategic materialm, given the existence of adequate domestic production or other more important foreign sources of supply.
H. REP. No.99-638, Part 2 at 7.
After discussions with the NRC staff, OGC has concluded that if the Lugar interpretation of the provision-is adopted, the uranium
' import ban contained in section 309(a) would for practical purposes'have no effect. It is our understanding that virtually all, if not all, uranium ore and uranium oxide that is imported into the United States from South Africa is re-exported. If uranium may be imported as long as it is not for domestic consumption, the statutory provision would be meaningless.
ca cartinal rule that in construing a statute, effect is to beIt is given to every clause and word of a statute and that interpretations should be avoided which emasculate an entire portion thereof. United States v. Manasche, 348 U.S. 528, 538-39 (1955). Moreover, in the absence of clear legislative history to the' contrary, which we do not have here, we believe the statute should be construed to best carry out the overall congressional objective which was to bar imports from South Africa.
Accordingly, we believe the better view of the law is that the ban includes all uranium ore and u9anium oxide, not just that intended for domestic consumption Another question relating to the scope of Section 309(a) is whether the import bar covers South African uranium ore or uranium oxide that is exported to a country other than the United States where it is converted to hexafluoride or enriched, and
! then sent by the processing country to the United States. Such l transformation of South African uranium could, and does, take !
place in other countries, such as those in the European Economic Community. l of Congress. This either House 1 Weissue understand was not thatdirectly there isaddressed a substant by'ial body of Custom Service case law that provides that if a product i
originating in one country has been "substantially transformed' in another country, the transformed product is not considered to be from the originating country. A contrary result would have f ar reaching implications beyond the Anti-Apartheid Act. For 4
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! We note that the law firm of Shaw, Pittman, Potts &'
Trowbridge, has submitted a memorandum to the NRC staff dated j
~ November 5, 1986 which reaches the contrary conclusion. That
' memorandum was prepared by the firm on behalf of the Taiwan Power Company.
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7 example, the Anti-Apartheid Act ba~rs the import of South African steel. If South Africa exported steel to a European Economic Community c'ountry for use in manufacturing a car, under such a theory the automobile could not be imported into the United States. We found no indication that Congress intended to reach so far in the Anti-Apartheid Act. The question in the uranium context is therefore whether, for example, uranium hexafluoride or enriched uranium is a substantially different product.than uranium ore or uranium oxide. It is our present understanding that these products may be viewed as being substantially different. Under such an interpretation, substantially transformed South African uranium ore or uranium oxide would not f all within the. prohibitions of Section 309 (a) .
We note that the NRC needs to promulaate reaulations implementing the Anti-Apartheid Act which will clearly need to delineate the scope of Section 309(a). However, we are not the only agency with
_', responsibilities for making that determination. Executive Order 12571 of Oc.tober 27, 1986 (51 Fed. Reg. 39505) delegated to the Secretary of Treasury the authority to implement the Act's prohibition on imports of products subject to section 309, among others. With the assistance of other Executive Branch agencies, the sTreasury Department is now analyzing the issues discussed in this' memorandum so that it can givy guidance to the Customs Service, which is part of that Department, on what South African products can be imported. The Executive Branch intends to provide its views to the NRC on the scope of Section 309(a) in the near future so that we can take their views in account in developing our implementing regulation.
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ATTACHMENT 2 1
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Existing Licenses Authorizing the Importation of South African Uranium License No./ Licensee Expires
- 1) IU78019 Edlow International Co. December 31, 1988 Unlimited Quantities of Source Material in any form
- 2) ISNM81001 Westinghouse Electric Corp. December 31, 1990 25,225 Kilograms U enriched to 3.6%
- 3) ISNM81017 Transnuclear, Inc. January 1,1988 241.252 Kgs U enriched to 90% and 5.746 Kgs Pu in spent fuel
- 4) ISNM82015 Phibro-Salomon, Inc. October 1,1987 500,000 Kgs V, including normal U and U enriched to 5%, in any form except spent fuel
- 5) ISNM82016 Separative Work Unit Corp. October 1,1987 a) 2,000,000 pounds natural U in any form b) 300,000 kilograms enriched U to 5% in any form
- 6) ISNM82020 Edlow International Co. December 1,1992 4
l 5,000,000 kilograms V enriched to 5% as UF6 and UO 2
- 7) ISNM83003 New York Nuclear Corp. February 4, 1988
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5,000,000 kilograms U enriched to j
5%. No form specified. l 1
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2 License No./ Licensee Expires
- 8) ISNM83005 Transnuclear, Inc. April 1, 1988 500,000 kilograms U enriched to 5%.
No form specified.
- 9) ISNM83011 Braunkohle Transport, USA July 1,1988 5,000,000 kilograms U natural and enriched to 4%
- 10) ISNM83025 Exxon Nuclear Co., Inc. January 1,1989 925,000 kilograms U enriched to 5%
- 11) ISNM84012 International Energy Assoc., Ltd. January 1,1988 1600 Kilograms V enriched to 5%
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ATTACHMENT 3
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I a , j t' IDports of South African' Uranium During 1985 and 1986 Month UF6 (nonnal) UF6 (enriched) Ore /0xide Ore /0xide 3 (normal) (enriched) 1/85 -30,528 Kgs 20,320 2/85 '/ 292,846 3/85 38,314 38,293- ,
4/85 -71,725 538,390 5/85 355,959 6/85 6,319 228,336-7/85 8,875 Kgs. 49,694 8/65 17,026 43,881 Kgs. 156,143 9/85 227,646 '21 Kgs.
10/85 10,504 Kgs. .189,368 11/85 887 12/85 69,751 Total 1985 164,799 63,260 Kgs. 2,166,752 Kgs. 21 Kgs.
1/86 162,044 Kgs.
2/86 3 Kgs. 10,544 Kgs. 382,051 3/86 2,050 Kgs. 30,586 Kgs. 274,211 4/86 101,290 Kgs. 25,263 Kgs. 161,975 5/85 08,885 '420,587 6/86 30,877 7/86 8,868 Kgs. 531,213.
8/86 182,684 263 Kgs.
9/86 100,129' 10/86 241,162 12,805 134,628 11/86 36,512 284,819 12/86 79,386 ~3,891,339. 237 Kgs.
Total 1986 549,288 Kgs. 88,066 Kgs. 6,556,518- 500 Kgs.
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6 Imports of South African-Origin Uranium Through Other Countries Country 1985/ Description 1986/ Description
- 2. FRG 13,455 Kgs. UF6 (enriched 23,349 Kgs. UF6 (enriched) 68,613 Kgs. U 03 8 (n rmal) 486 Kgs. UO2(enriched)
- 5. Taiwan 14 Kgs. UO2 (enriched)
Totals 286,683 Kgs. (1985) 902,082 Kgs. (1986) l i
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