[Federal Register: November 20, 2002 (Volume 67, Number 224)]
[Notices]
[Page 70049-70053]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20no02-38]
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DEPARTMENT OF COMMERCE
Bureau of Industry and Security
[Docket No. 020904209-2209-01]
Protocol Additional to the Agreement Between the United States of
America and the International Atomic Energy Agency Concerning the
Application of Safeguards in the United States of America (short title
``U.S. Additional Protocol'')
AGENCY: Bureau of Industry and Security, Commerce.
ACTION: Notice of inquiry.
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SUMMARY: On May 9, 2002, the President transmitted the Protocol
Additional to the Agreement Between the United States and the
International Atomic Energy Agency (IAEA) for the Application of
Safeguards in the United States of America (hereinafter referred to as
the U.S. Additional Protocol), signed by the United States in 1998, to
the Senate for its advice and consent to ratification. The requirements
of the U.S. Additional Protocol would supplement the existing Agreement
Between the United States of America and the International Atomic
Energy Agency for the Application of Safeguards in the United States
(U.S.-IAEA Safeguards Agreement) by expanding the declaration,
reporting and on-site access requirements of the U.S.-IAEA Safeguards
Agreement to capture elements of the domestic nuclear fuel-cycle
additional to those covered by the present U.S.-IAEA Safeguards
Agreement. These elements include mining and milling of nuclear
materials, nuclear-related equipment manufacturing, nuclear-related
imports and exports, nuclear fuel cycle research and development not
involving nuclear material, and forms of nuclear material not currently
subject to the U.S.-IAEA Safeguards Agreement. The Department of
Commerce, in consultation with other Executive Branch agencies, is
working to reach an understanding of the universe of commercial
locations that would be affected by implementation of the Additional
Protocol. This Notice of Inquiry is part of an effort to collect
information to estimate the potential impact that the implementation of
the U.S. Additional Protocol will have on U.S. industry and to gain a
better understanding of the universe of locations that may be affected
by implementation, should the Additional Protocol enter into effect.
DATES: Comments are due on or before January 21, 2003.
ADDRESSES: Written comments (four copies) should be submitted to
Willard Fisher, Regulatory Policy Division, Office of Exporter
Services, Bureau of Industry and Security, U.S. Department of Commerce,
14th Street and Pennsylvania Avenue, NW., Room 2705, Washington, DC
20230. In order to meet the due date for comments, single copies may be
faxed to (202) 482-3355, provided that you follow up by submitting the
appropriate number (four copies) of written comments.
FOR FURTHER INFORMATION CONTACT: For questions on the U.S. Additional
Protocol, contact Brandon Williams, Treaty Compliance Division, Office
of Nonproliferation Controls and Treaty Compliance, Bureau of Industry
and Security, U.S. Department of Commerce, Phone: (703) 605-4400. For
questions on the submission of comments, contact Willard Fisher,
Regulatory Policy Division, Office of Exporter Services, Bureau of
Industry and Security, U.S. Department of Commerce, Phone: (202) 482-
2440.
[[Page 70050]]
SUPPLEMENTARY INFORMATION:
Background
The requirement for a comprehensive international safeguards system
to prevent the spread of nuclear weapons was first established by the
Treaty on the Non-Proliferation of Nuclear Weapons (NPT). The NPT was
signed by the United States on July 1, 1968, and entered into force on
March 5, 1970. The treaty banned nuclear weapon states (NWS) from
transferring nuclear weapons to non-nuclear weapon states (NNWS) or
assisting NNWS to acquire such weapons, and stipulated that each non-
nuclear weapon State Party to the NPT would undertake to accept
safeguards as set forth in an agreement to be negotiated and concluded
with the IAEA. Although the NPT required the establishment of
safeguards, the formulation of detailed provisions for a model NPT
Safeguards Agreement was not completed by the IAEA until 1971. These
safeguards were designed to provide assurance that the nuclear material
of States Parties which had not already developed nuclear weapons would
not be diverted from peaceful use to making nuclear weapons.
During deliberations of the NPT, several major industrialized
nations expressed concern that the absence of requirements for IAEA
safeguards in NWS would place NNWS at a commercial and industrial
disadvantage in developing nuclear energy for peaceful purposes.
Specifically, the NNWS were concerned that application of safeguards
would interfere with the efficient operations of their commercial
activities and would possibly compromise industrial and trade secrets
as a result of access by IAEA inspectors to their facilities and
records. In order to allay these concerns, the United States
voluntarily offered in 1967 to permit the IAEA to apply safeguards to
all nuclear facilities in the United States except only for those
associated with activities of direct national security significance.
Since then, the other four NWS recognized under the NPT (China, France,
the Russian Federation and the United Kingdom) have also agreed to
subject all or part of their civil nuclear activities to IAEA
safeguards.
The U.S.-IAEA Safeguards Agreement was signed on November 18, 1977,
and entered into force on December 9, 1980. At that time the United
States submitted to the IAEA a list of more than 200 eligible
facilities for which safeguards could be applied if selected by the
IAEA. This list included facilities licensed by the NRC and eligible
Department of Energy facilities. The United States has added additional
facilities to the eligible facilities list since that time. Under the
U.S.-IAEA Safeguards Agreement, about a dozen commercial facilities
have been selected for inspection since 1980.
Although the U.S.-IAEA Safeguards Agreement is based on the model
safeguards agreement developed by the IAEA, the terms of the U.S. offer
and the obligations of NNWS party to the NPT differ in several
respects. First, the U.S. offer excludes nuclear facilities associated
with activities of direct national security significance and does not
contain any limitations on use of nuclear material by the United
States. Also, the United States decides which U.S. facilities are
eligible for safeguards and the IAEA decides which eligible facilities
will be selected for application of safeguards, although the IAEA need
not select any. Furthermore, the United States has made separate
commitments to provide to the IAEA, for safeguards purposes,
information on exports of nuclear material.
In the aftermath of the 1991 Persian Gulf War, international
inspectors determined that Iraq had been engaged in a clandestine
nuclear weapon development program at locations not directly subject to
IAEA safeguards, despite inspections. The international community
determined that the safeguards system needed to be strengthened and
negotiated a model Additional Protocol to amend existing bilateral
safeguards agreements. The model Additional Protocol requires enhanced
information collection and access to provide IAEA inspectors with
greater ability to detect clandestine nuclear activities in NNWS, and
covers almost all of a state's nuclear fuel cycle. The United States,
as a NWS party to the NPT, is not obligated to accept IAEA safeguards
on its nuclear activities. However, the United States voluntarily
signed the U.S. Additional Protocol on June 12, 1998. By submitting
itself to the same safeguards on all of its civil nuclear activities
that NNWS parties to the NPT are subject to, the United States intends
to demonstrate that adherence to the model Additional Protocol does not
place other countries at a commercial disadvantage. In this Additional
Protocol, the United States accepts all of the measures of the Model
Protocol except where their application would result in access by the
IAEA to activiites with direct national security significance to the
United States or to locations or information associated with such
activities.
On May 9, 2002, the President transmitted the U.S. Additional
Protocol to the Senate for its advice and consent to ratification. The
U.S. Additional Protocol will not enter into force until the United
States notifies the IAEA that the statutory and constitutional
requirements for entry into force have been met. These requirements
include ratification, implementing legislation, and issuance of
regulations.
Declarations submitted under the U.S. Additional Protocol would
provide the IAEA with information about additional aspects of the U.S.
nuclear fuel cycle, including mining and milling of nuclear materials,
nuclear-related equipment manufacturing, nuclear-related imports and
exports, research and development not involving nuclear material, and
other nuclear material activities not currently subject to the U.S.-
Safeguards Agreement. There are no routine inspections under the
Additional Protocol, but IAEA inspectors may be provided access
(referred to as ``complementary access'') to the U.S. nuclear fuel
cycle where there is a question or an inconsistency about the
completeness or correctness of the U.S. declaration, which could relate
to declared or undeclared industrial locations. Access to industrial
locations is predicated upon an IAEA request for clarification of a
declaration and may be exercised by the IAEA with a minimum of 24-hours
notice. As with the U.S.-IAEA Safeguards Agreement, the IAEA would not
be required to seek access to any U.S. locations. In carrying out
responsibilities delegated to it for implementation of the U.S.
Additional Protocol, the Department would apply a philosophy of
ensuring compliance while minimizing intrusion and the burden on
commercial activities.
Discussion and Request for Comments
The U.S. Additional Protocol is based on the model Additional
Protocol (INFCIRC/540) which is organized into eighteen different
Articles. INFCIRC/540 is available on the IAEA website (www.iaea.org).
Article 2 describes the information required in a U.S. declaration to
be submitted to the IAEA and in periodic reports and updates. The
Department recognizes that some of this information is already being
reported by commercial entities to U.S. Government agencies under U.S.
Government regulations but is seeking to gain a better understanding of
the number and type of locations that may be impacted by the
declaration requirements of the U.S. Additional Protocol in order to
refine estimates of the potential burden on U.S. industry and design
future information collection systems. Where practical, the intent is
to avoid redundancy in reporting required under an existing legislative
mandate. However, in some of these instances, the
[[Page 70051]]
Additional Protocol may require more information than is currently
being provided, such as mining capacity or the scale of operations of
equipment manufactured but not exported. Such cases would require
additional submission of information. Also, for example, in cases where
the data has been previously collected by voluntary survey, submissions
to the Department would be mandated under the U.S. Additional Protocol.
Data submissions related to activities such as public and private
research and development are expected to comprise predominantly
information previously unreported under any existing regulatory
authority. There are some instances, such as the U.S. right to exclude
activities or locations with direct national security significance
under the U.S. Additional Protocol, where the model Additional
Protocol, designed for NNWS, does not have relevance in the United
States. This notice takes those instances into account.
It is the intent of the Department, by publishing this Notice of
Inquiry, to gauge the scope of the impact of the Additional Protocol,
both in newly reportable entities and additional impacts on those
already reporting similar information under existing regulations.
Information received will be used by the Executive Branch agencies who
are given responsibility to implement the Additional Protocol a better
understanding of the universe of commercial locations that will be
affected. It would be most useful for the Department to receive
comments on: (1) Estimated numbers of commercial locations that would
be subject to reporting under the specific declaration elements and (2)
whether this information is already reported to U.S. Government
agencies and if so, to whom. For the purpose of this Notice of Inquiry,
commercial locations are those not owned by or leased to the U.S.
Government. The Department also welcomes discussion regarding: (1) Any
concerns with the potential release of proprietary or confidential
business information; (2) what information should not be subject to
disclosure; (3) the type of information that could best satisfy the
Additional Protocol requirements; (4) redundancy of reporting and data
requirements; (5) the degree to which impacted companies would have new
reporting requirements; and (6) the burden, including cost estimates,
represented by requirements for companies to collect and report new
information both initially and for annual updates. The specific
elements to be reported to the IAEA in the U.S. declaration and a
general discussion of the expected sources of this information are
described below.
1. Research and Development Activities (Public and Private)
Article 2.a(i) of the model Additional Protocol requires a general
description and information specifying the location of nuclear fuel
cycle-related research and development activities not involving nuclear
material, carried out anywhere, that are funded, specifically
authorized or controlled by, or carried out on behalf of, the
government of the United States. Article 2.b(i) requires this
information for nuclear fuel cycle-related research and development
activities not involving nuclear material that are not funded,
specifically authorized or controlled by, or carried out on behalf of,
the government of the United States. General description requirements
are expected to include brief information regarding the fuel cycle
stage to which the project is related, title of the project, the
project number or other unique designation, description of work being
performed, objectives of the project, degree of project completion, and
intended application of the project results.
For the purpose of the Additional Protocol, ``nuclear material'' is
defined as any source or special fissionable material (i.e., enriched,
natural, and depleted uranium and thorium--processed beyond the raw ore
stage; i.e., mill products and subsequent materials) it does not
include ore or ore residue. ``Nuclear fuel cycle-related research and
development activities'' are defined in the Additional Protocol as
those activities which are specifically related to any process or
system development aspect of any of the following: conversion (from one
chemical species to another) of nuclear material, enrichment of nuclear
material, nuclear fuel fabrication, reactors, critical facilities,
reprocessing of nuclear fuel, processing (not including repackaging or
conditioning not involving the separation of elements, for storage or
disposal) of intermediate or high-level waste containing plutonium,
high enriched uranium or uranium-233.
Declaration requirements exclude activities related to theoretical
or basic scientific research or to research and development on
industrial radioisotope applications, medical, hydrological and
agricultural applications, health and environmental effects and
improved maintenance.
2. Operational Activities of Safeguards Relevance
Article 2.a(ii) of the model Additional Protocol requires
information identified by the IAEA on operational activities of
safeguards relevance at facilities and locations outside facilities
where nuclear material is customarily used. In the United States, this
element will apply only at nuclear facilities where the IAEA is
applying safeguards in the United States and where agreed to by the
United States Government. At the present time, only four facilities are
subject to safeguards. Examples of such operational activities include,
but are not limited to, nuclear material transfers, empty spent fuel
cask transfers, crane movement records, reactor fuel production,
isotope production, and maintenance activities. A ``facility'' is
defined in the Additional Protocol as a reactor, critical facility,
conversion plant, fabrication plant, reprocessing plant, isotope
separation plant or separate storage installation, or any location
where nuclear material in amounts greater than one effective kilogram
is customarily used.
The Department expects that these activities are subject to license
by the NRC and the collection of this information will be the
responsibility of the NRC.
3. Nuclear Facility Site Descriptions and Site Maps
Article 2.a(iii) of the model Additional Protocol requires a
general description of each building on a site, including the
building's use and, if not apparent from that description, its
contents. In the United States, this element will apply only in
instances where the United States has provided to the IAEA the relevant
design information. Under the terms of the U.S.-IAEA Safeguards
Agreement, the U.S. has provided such information on the nuclear
facilities that have been inspected in the United States. The
description is expected to include a building number or other
unambiguous identification, approximate size of the building (i.e.,
number of floors and total area), use of the building, and the main
contents of the building. A map of the site is also required.
A ``site'' is defined in the model Additional Protocol as that area
delimited by the United States in the relevant design information for a
facility, including a closed-down facility, and in the relevant
information on a location outside facilities where nuclear material is
customarily used, including a closed-down location outside facilities
where nuclear material
[[Page 70052]]
was customarily used (this is limited to locations with hot cells or
where activities related to conversion, enrichment, fuel fabrication or
reprocessing were carried out). A ``site'' also includes all
installations, co-located with the facility or location, for the
provision or use of essential services, including: hot cells for
processing irradiated materials not containing nuclear material;
installations for the treatment, storage and disposal of waste; and
buildings associated with specified activities identified by the United
States under Article 2.a(iv) (see discussion below under Equipment
Manufacturers).
The Department expects that the collection of information
pertaining to facilities licensed by the NRC will be the responsibility
of the NRC. However, the definition of ``site'' extends beyond areas
involving nuclear material activities.
4. Equipment Manufacturers
Article 2.a(iv) of the model Additional Protocol requires a
description of the scale of operations for each location engaged in
certain nuclear-related manufacturing and/or assembly activities
described in detail in Annex I to the model Additional Protocol and
listed below (items a-s). The activities relate to equipment and non-
nuclear material listed in Annex II to the model Additional Protocol.
Scale of operations could mean, for example, approximate production
capacity and capacity utilization during a declaration period. Although
information is already being reported to the U.S. Government on the
export of such equipment, the Department is not aware of any regulatory
authorities currently collecting information on the scale of operations
for manufacturing such equipment.
The model Additional Protocol requires declaration and reporting
for the following nuclear-related manufacturing activities which are
focused primarily on the manufacture of items ``especially designed or
prepared'' for uranium enrichment (a-k) or other items related to the
nuclear fuel cycle:
(a) The manufacture of centrifuge rotor tubes or the assembly of
gas centrifuges that are especially designed or prepared for the
separation of isotopes of uranium;
(b) The manufacture of gaseous diffusion barriers with thin, porous
filters which are especially designed or prepared for the enrichment of
uranium;
(c) The manufacture or assembly of laser-based isotope separation
systems especially designed or prepared for enrichment of uranium;
(d) The manufacture or assembly of electromagnetic isotope
separators especially designed or prepared for enrichment of uranium;
(e) The manufacture or assembly of columns or extraction equipment
especially designed or prepared for enrichment of uranium;
(f) Uranium oxidation systems (chemical exchange) especially
designed or prepared for enrichment of uranium;
(g) Fast-reacting ion exchange resins/adsorbents (ion exchange)
especially designed or prepared for enrichment of uranium;
(h) Ion exchange columns (ion exchange) for isotope separation
especially designed or prepared for enrichment of uranium;
(i) Ion exchange reflux systems (ion exchange) for isotope
separation especially designed or prepared for enrichment of uranium;
(j) The manufacture of aerodynamic separation nozzles or vortex
tubes especially designed or prepared for enrichment of uranium;
(k) The manufacture or assembly of uranium plasma generation
systems especially designed or prepared for enrichment of uranium;
(l) The manufacture of zirconium tubes especially designed or
prepared for use in a reactor;
(m) The manufacture or upgrading of heavy water or deuterium in
which the ration of deuterium to hydrogen atoms exceeds 1:5000;
(n) The manufacture of nuclear grade graphite at a purity level
better than 5 parts per million boron equivalent and with a density
greater than 1.50 g/cm \3\
(o) The manufacture of flasks for irradiated fuel;
(p) The manufacture of reactor control rods especially designed or
prepared for the control of the reaction rate in a nuclear reactor;
(q) The manufacture of criticality safe tanks and vessels
especially designed or prepared for use in a reprocessing plant;
(r) The manufacture of irradiated fuel element chopping machines
especially designed or prepared for use in a reprocessing plant; and
(s) The construction of hot cells with a cell or interconnected
cells totaling at least 6 cubic meters in volume with shielding equal
to or greater than the equivalent of 0.5 meters of concrete, with a
density of 3.2 g/cm \3\ or greater, outfitted with equipment for remote
operations.
5. Uranium and Thorium Mines and Mills
Article 2.a(v) of the model Additional Protocol requires
information on the location, operational status and the estimated
annual production capacity of uranium mines and concentration plants
and thorium concentration plants, and the current annual production of
such mines and concentration plants in the United States. Uranium and
thorium concentration plants engage in the processing and milling of
ore. Currently, the Department of Energy collects information via the
Energy Information Agency regarding uranium mines. This includes some
but not all of the required information regarding ore processing. The
NRC licenses uranium and thorium mills, and the Department expects the
collection of this information to be the responsibility of the NRC.
Information on mine production capacity represents new reporting
requirements under the Additional Protocol.
6. Source Material Not Suitable for Fuel Fabrication or Isotopic
Enrichment
Article 2.a(vi) of the model Additional Protocol requires
information on natural and depleted uranium in quantities greater than
10 metric tons or on thorium in quantities greater than 20 metric tons.
The Department expects that these activities are subject to license by
the NRC and the collection of this information will be the
responsibility of the NRC.
7. Nuclear Material Exempted From Safeguards
Article 2.a(vii) of the model Additional Protocol requires
information on nuclear material declared by the United States but
exempted from safeguards by arrangement with the IAEA. There is no such
material in the United States. If there were, the Department expects
that the nuclear material would be subject to license by the NRC, and
the collection of this information would be the responsibility of the
NRC.
8. Waste for Which Safeguards Have Been Terminated
Article 2.a(viii) of the model Additional Protocol requires
information on the location or further processing of intermediate or
high-level waste containing plutonium, high-enriched uranium or
uranium-233 on which IAEA safeguards have been terminated. High-
enriched uranium means uranium containing 20 percent or more of the
isotope uranium-235. There is no nuclear material in the United States
on which IAEA safeguards have been terminated.
[[Page 70053]]
9. Export and Import of Specified Equipment and Non-Nuclear Material
Article 2.a(ix) of the model Additional Protocol requires
information on the export and import of certain nuclear-related
equipment and non-nuclear material listed in Annex II to the model
Additional Protocol and listed below (items a-m). These items are
subject to export license by the NRC and the Department expects the
collection of this information will be the responsibility of the NRC.
The Department is not aware of any current regulatory authority for
collecting information on imports of such equipment and non-nuclear
material. There will be no routine reporting requirements for import
data since the submission of import data is upon specific request by
the IAEA. The equipment and non-nuclear material subject to Article
2.a(ix) are described in Annex II to the U.S.-IAEA Additional Protocol
and include:
(a) Reactors and equipment including complete nuclear reactors, and
specially designed reactor pressure vessels, reactor fuel charging and
discharging machines, reactor control rods, reactor pressure tubes,
zirconium tubes, primary coolant pumps;
(b) Non-nuclear materials for reactors including deuterium and
nuclear grade graphite;
(c) Specially designed irradiated fuel element chopping machines,
dissolvers, solvent extractors and solvent extraction equipment,
chemical holding or storage vessels, plutonium nitrate to oxide
conversion system, plutonium oxide to metal production system;
(d) Specially designed equipment that seals the nuclear material
within the cladding, and any other which normally comes in direct
contact with, or directly processes, or controls, the production flow
of nuclear material;
(e) Specially designed gas centrifuges and assemblies and
components especially designed or prepared for use in gas centrifuges;
(f) Specially designed gas diffusion assemblies and components
especially designed or prepared for use in gas diffusion enrichment;
(g) Specially designed or prepared systems, equipment and
components especially designed for use in aerodynamic enrichment
plants;
(h) Specially designed or prepared systems, equipment and
components for use in chemical exchange or ion exchange enrichment
plants;
(i) Specially designed or prepared systems, equipment and
components for use in laser-based enrichment plants;
(j) Specially designed or prepared systems, equipment and
components for use in plasma separation enrichment plants;
(k) Specially designed or prepared systems, equipment and
components for use in electromagnetic enrichment plants;
(l) Specially designed or prepared equipment for plants for the
production of heavy water, deuterium and deuterium compounds; and
(m) Specially designed or prepared systems for the conversion of
uranium ore concentrates to UO3, conversion of
UO3 to UF6, conversion of UO3 to
UO2, conversion of UO2 to UF4,
conversion of UF4 to UF6, conversion of
UF4 to U metal, conversion of UF6 to
UO2, and conversion of UF6 to UF4.
10. Ten-Year General Plans
Article 2.a(x) of the model Additional Protocol requires
information regarding general plans for the succeeding ten-year period
relevant to the development of the nuclear fuel cycle (including
planned nuclear fuel cycle-related research and development activities)
when approved by the appropriate authorities in the United States. The
Department expects that the Department of Energy will be the approving
authority for these plans and will be responsible for the collection of
such data.
11. Activities Related to a ``Site''
Article 2.b(ii) requires, upon specific request by the IAEA, a
general description of activities and the identity of the person or
entity carrying out activities at a particular location which has not
been included as part of a ``site'' but which the IAEA considers may be
functionally related to the activities on a ``site'' declared under
2(a)(iii) The U.S. Government will review such requests on a case-by-
case basis. This provision relates only to element 3 above, where the
United States has provided site descriptions and site maps.
Submission of Comments
All comments must be submitted to the address indicated in this
notice. The Department requires that all comments be submitted in
written form.
The Department encourages interested persons who wish to comment to
do so at the earliest possible time. The period for submission of
comments will close January 21, 2003. The Department will consider all
comments received before the close of the comment period. Comments
received after the end of the comment period will be considered, if
possible, but their consideration cannot be assured. The Department
will not accept comments accompanied by a request that a part or all of
the material be treated confidentially because of its business
proprietary nature or for any other reason. The Department will return
such comments and materials to the persons submitting the comments and
will not consider them. All comments submitted in response to this
notice will be a matter of public record and will be available for
public inspection and copying.
The Office of Administration, Bureau of Industry and Security, U.S.
Department of Commerce, displays public comments on the BIS Freedom of
Information Act (FOIA) web site at http://www.bis.doc.gov/foia. This
office does not maintain a separate public inspection facility. If you
have technical difficulties accessing this web site, please call BIS's
Office of Administration, at (202) 482-0637, for assistance.
Dated: November 14, 2002.
James J. Jochum,
Assistant Secretary for Export Administration.
[FR Doc. 02-29513 Filed 11-19-02; 8:45 am]
BILLING CODE 3510-33-P