Nuclear Proliferation Assessment in Licensing Process for Enrichment or Reprocessing Facilities, 33995-34008 [2013-13444]
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33995
Proposed Rules
Federal Register
Vol. 78, No. 109
Thursday, June 6, 2013
This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
NUCLEAR REGULATORY
COMMISSION
10 CFR Part 70
[Docket No. PRM–70–9; NRC–2010–0372]
Nuclear Proliferation Assessment in
Licensing Process for Enrichment or
Reprocessing Facilities
Nuclear Regulatory
Commission.
ACTION: Petition for rulemaking; denial.
AGENCY:
The U.S. Nuclear Regulatory
Commission (NRC) is denying a petition
for rulemaking (PRM), PRM–70–9,
submitted by the American Physical
Society (APS or the petitioner). The
petitioner requested that the NRC
amend its regulations to require that
each applicant for an enrichment or
reprocessing (ENR) facility license
include an assessment of the
proliferation risks that construction and
operation of the proposed facility might
pose. The NRC is also responding to
comments received from interested
members of the public.
DATES: The docket for PRM–70–9 closed
on June 6, 2013.
ADDRESSES: Please refer to Docket ID
NRC–2010–0372 when contacting the
NRC about the availability of
information for this petition. You may
access information related to this
petition, which the NRC possesses and
is publicly available, by any of the
following methods:
• Federal Rulemaking Web site: Go to
https://www.regulations.gov and search
for Docket ID NRC–2010–0372. Address
questions about NRC dockets to Carol
Gallagher; telephone: 301–492–3668;
email: Carol.Gallagher@nrc.gov. For
technical questions, contact the
individuals listed in the FOR FURTHER
INFORMATION CONTACT section of this
document.
• NRC’s Agencywide Documents
Access and Management System
(ADAMS): You may access publiclyavailable documents online in the NRC
Library at https://www.nrc.gov/reading-
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SUMMARY:
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rm/adams.html. To begin the search,
select ‘‘ADAMS Public Documents’’ and
then select ‘‘Begin Web-based ADAMS
Search.’’ For problems with ADAMS,
please contact the NRC’s Public
Document Room (PDR) reference staff at
1–800–397–4209, 301–415–4737, or by
email to pdr.resource@nrc.gov. The
ADAMS accession number for each
document referenced in this document
(if that document is available in
ADAMS) is provided the first time that
a document is referenced. The incoming
petition is available in ADAMS under
Accession No. ML103260300.
• NRC’s PDR: You may examine and
purchase copies of public documents at
the NRC’s PDR, Room O1–F21, One
White Flint North, 11555 Rockville
Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT:
Keith McDaniel, Office of Federal and
State Materials and Environmental
Management Programs, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001; telephone: 301–415–
5252, email: Keith.McDaniel@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Summary of Rationale for Denial
II. Background
III. Petition Assertions and NRC Responses
IV. Public Comments on the Petition and
NRC Responses
V. Determination of Petition
I. Summary of Rationale for Denial
The petition requested that the NRC
require that each applicant for an ENR
facility license provide an assessment of
the proliferation risks associated with
the construction and operation of the
proposed facility. While the NRC
recognizes the importance of the
petitioner’s concerns about minimizing
the risk of nuclear proliferation, the
NRC is denying the petition for
rulemaking. The petitioner has not
shown that ENR applicants have a
particular insight on proliferation issues
or have access to the intelligence
resources, capabilities, and information
that would enable them to prepare a
meaningful proliferation assessment.
Therefore, the petitioner has not
demonstrated that requiring an
applicant to prepare and include such
an assessment as part of its application
would provide the NRC with
meaningful information that would
enhance the NRC’s decision-making on
the applicant’s license application nor
would such an assessment assist the
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NRC in carrying out its statutory
responsibility to protect public health
and safety and promote the common
defense. Furthermore, as discussed
more fully later in this document, the
NRC’s existing regulatory program and
ongoing oversight of applicants and
licensees ensure that they comply with
requirements designed to minimize
proliferation risks associated with the
construction and operation of ENR
facilities. These requirements include
measures to prevent, detect, and defend
against the unauthorized disclosure of
ENR technology and the diversion of
associated nuclear materials.
To the extent that the petitioner is
concerned about diversion of nuclear
materials (or sabotage) at an NRClicensed facility, the NRC’s regulations
and oversight activities already address
these concerns. In fulfilling its mandate
to ensure that the licensing of a facility
is not harmful to the public health and
safety and is not inimical to the
common defense and security, the NRC
performs detailed examinations,
including inspections, of all aspects of
a facility’s safeguards and security
measures to ensure compliance with
regulatory requirements that are
intended to prevent, detect, and defend
against unauthorized access to the
facility and malicious acts directed
against the facility. At the time of initial
licensing, the NRC reviews the ENR
license application to ensure that the
applicant has developed and will
implement policies, procedures, and
programs that enable the applicant to
meet all applicable NRC safety and
security requirements. Throughout the
life of the facility, NRC staff implements
a robust inspection and oversight
program to ensure that the licensee
properly implements all applicable
safety and security policies, procedures,
and programs set forth in its license and
is in compliance with all applicable
regulatory requirements. The NRC’s
regulatory requirements help ensure
that facilities are constructed and
operated in accordance with proper
physical security, safeguards measures,
and information protection
requirements.
To the extent that the petitioner is
concerned about generating greater
foreign interest in new ENR
technologies and/or a spread of
sensitive technology to countries of
proliferation concern, the President and
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the Congress have the primary
responsibility for developing and
promoting the Federal Government’s
national nuclear nonproliferation goals
and policies. The U.S. Department of
State (DOS), working with the U.S.
Department of Energy (DOE) and other
Federal agencies, has the primary
responsibility for implementing these
goals and policies domestically and
internationally. These agencies have the
necessary insights on proliferation
issues and access to the intelligence
resources, capabilities and information
to perform meaningful analyses of the
proliferation risks associated with
sensitive technologies, including
sensitive ENR technologies. They
routinely work through diplomatic and
other channels to address proliferation
concerns outside of the U.S. In addition
to establishing the terms and conditions
for U.S. cooperation with countries that
have legitimate nuclear energy and
research programs, these Executive
Branch agencies monitor the
international threat environment to
ascertain which foreign nations or subnational organizations are or may be
trying to illicitly obtain or use sensitive
nuclear technologies, including ENR
technology, for proliferation purposes.
The accurate assessment and
deterrence of global proliferation risk
requires examination of numerous
variables, largely in international and
military arenas that are far afield from
the NRC’s core domestic licensing and
oversight activities. The NRC interacts
regularly with the Federal agencies that
have expertise in these areas and is kept
informed of existing and emerging
proliferation threats and activities. This
interaction helps ensure that the NRC’s
licensing activities are aligned with the
nation’s nonproliferation goals and
policies. These agencies routinely bring
to the Commission’s attention
information pertinent to the NRC’s
regulatory responsibilities. An NRC
domestic licensing proceeding is not the
proper forum for establishing national
nonproliferation policies and objectives.
It would be neither prudent nor useful
for the NRC to devote resources in a
domestic licensing proceeding to
address national policy objectives that
are already being addressed by the
appropriate Federal agencies with the
expertise and mandate to do so.
One of the NRC’s primary concerns is
to ensure that the facilities it regulates
that manufacture or use enriched
uranium and plutonium do so safely
and securely. The NRC’s regulations on
physical security, information security,
material control and accounting, cyber
security, and export control create a
tapestry of protection for the material
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and technology at NRC-regulated fuel
cycle facilities. These regulations,
which focus on preventing the theft or
diversion of radioactive materials and
classified technologies, take
proliferation considerations into
account. The petitioner has not
demonstrated that the NRC’s current
licensing program is deficient.
The U.S. Government is an active
member and participant in the
implementation of international treaties
and agreements designed to minimize
proliferation risks world-wide,
including the Nuclear Non-Proliferation
Treaty, the U.S. Agreement with the
International Atomic Energy Agency
(IAEA) regarding the application of
safeguards in the U.S., and the U.S.
Additional Protocol to that agreement.
The NRC takes seriously its
responsibility to support the U.S.
Government’s role in the international
nonproliferation regimes to which it is
a signatory, and to implement relevant
U.S. Government nonproliferation goals
and policies at NRC licensee sites.
However, the changes sought by the
petitioner will not provide the NRC
with meaningful information on
proliferation risks that would enhance
the NRC’s domestic licensing process or
aid the NRC in implementing the U.S.
Government’s nonproliferation policies
and goals.
In sum, the NRC’s existing
comprehensive licensing framework,
which includes extensive regulatory
requirements and ongoing oversight,
addresses the facility-specific controls
that must be implemented domestically
to minimize proliferation risk. The NRC
ensures that proper physical security,
national and international safeguards,
and information security measures are
applied at all NRC licensee sites. With
insights gained from regular interagency
cooperation and information exchange,
the NRC also ensures that its licensing
activities are aligned with the broader
national nuclear nonproliferation
policies and goals established by the
President and Congress. The petition
does not demonstrate how a license-bylicense nuclear proliferation assessment
would lead to the identification of
significantly new or meaningful
information beyond that which is
already available and that would
enhance NRC decision-making on a
specific license application.
II. Background
On November 10, 2010, the NRC
received a PRM filed by Francis Slakey
on behalf of the APS and assigned it
Docket No. PRM–70–9. The NRC
published a notice of receipt of the
petition and request for public comment
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in the Federal Register (FR) on
December 23, 2010 (75 FR 246).
The petition requests that the NRC
amend part 70 of Title 10 of the Code
of Federal Regulations (10 CFR),
‘‘Domestic Licensing of Special Nuclear
Material,’’ to require each applicant for
an ENR facility license in the United
States to include a nuclear proliferation
assessment in its application.
Specifically, the petition requests that
the NRC’s regulations be amended to
read:
§ 70.22 Contents of applications.
(o) Nuclear proliferation assessment. Each
applicant for the license of an enrichment or
reprocessing facility shall include an
assessment of the proliferation risks that
construction and operation of the proposed
facility might pose.
The following section contains a
summary of the petition assertions and
NRC responses.
III. Petition Assertions and NRC
Responses
Assertion 1
The petition asserted that performing
a nuclear proliferation assessment
would be consistent with the NRC’s
requirement to evaluate whether
issuance of a license ‘‘would be inimical
to the common defense and security or
to the health and safety of the public.’’
The petition further asserted that it does
not presume to know the best method
for implementing the proposed rule
change and makes the following two
comments for NRC staff consideration:
• General Electric-Hitachi Global
Laser Enrichment LLC (GLE) carried out
an independent nuclear proliferation
assessment of its laser enrichment
facility without: (1) Jeopardizing any
classified or proprietary information, (2)
delaying the timeline, or (3) adding
substantially to the cost of the project.
Under the APS proposed rule change,
all ENR license applicants would be
required to carry out such an assessment
and submit it to the NRC staff for
review.
• The term ‘‘Nuclear Proliferation
Assessment [Statement]’’ (NPAS) is
used in the Atomic Energy Act (AEA) of
1954, as amended, under Section 123, in
the context of U.S. agreements for
cooperation with a foreign nation. The
NRC participates in these assessments
with other Federal entities, in the
manner described in Section 123. In
particular, the NRC has already engaged
in the preparation and review of an
NPAS for an enrichment technology. In
1999, the NRC participated with other
Federal entities in the NPAS that
supported the decision to allow the
Separation of Isotopes by Laser
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Excitation (‘‘SILEX’’) technology to be
transferred from Australia to the United
States. Similarly, under the APS
proposed rule change, the NRC staff
could work with other Federal entities
in reviewing the nuclear proliferation
assessment provided by the license
applicant.
NRC Response to Assertion 1
The NRC disagrees with the petitioner
that an applicant seeking an ENR
facility license from the NRC is the
appropriate entity to conduct a nuclear
proliferation assessment. A commercial
entity would not have access to the
intelligence resources, capabilities, and
information essential to compiling a
meaningful nuclear proliferation
assessment. An assessment based solely
on information available to a
commercial entity would be of little
value to the NRC in assessing the
proliferation risks associated with
licensing a particular facility. The task
of assessing proliferation risks is best
performed by the Federal Government.
Other Federal agencies, led by the DOS
and including the DOE, the U.S.
Department of Defense (DOD), and the
U.S. Department of Commerce (DOC),
have primary responsibility for
implementing national nonproliferation
policies and goals and conducting
proliferation assessments of sensitive
technologies, including nuclear
technologies. The NRC routinely
interacts with and provides its technical
expertise and support to these agencies.
Once a foreign-developed ENR
technology has advanced to the point
where an applicant is seeking an NRC
license, the appropriate U.S.
Government agencies have already
made a favorable determination that the
technology in question can be
adequately protected for development
and production within the U.S. For
example, the SILEX technology was
imported into the U.S. under the terms
of an agreement negotiated between the
governments of the U.S. and Australia
under Section 123 of the AEA (123
Agreement). This agreement allows for
the sharing of Restricted Data (ENR
technology) between the U.S. and
Australia. This Agreement, negotiated
by the DOS and approved by the
President, included the required NPAS
for the SILEX technology.
Under Section 123 of the AEA, the
Federal Government prepares an NPAS
to demonstrate that the terms of a
bilateral agreement are consistent with
the requirements of the AEA, with
particular emphasis on the adequacy of
safeguards and other control
mechanisms for the protection of
nuclear technologies and materials, and
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that U.S. assistance provided under the
bilateral agreement will not be used by
the recipient country to further any
military or nuclear explosive purpose.
Under Section 123, the DOS is
responsible for preparing an NPAS, with
technical assistance from other Federal
agencies including the NRC. However,
Section 123 does not apply to or address
license applications submitted to the
NRC utilizing a domestically developed
ENR technology.
The ENR technology that is solely
developed in the U.S. is subject to the
requirements set forth in Section 151c of
the AEA. Section 151c requires that any
person in the United States who makes
any invention or discovery useful in the
production or utilization of special
nuclear material (SNM) must make a
report of such invention or discovery to
the DOE. This report need not be made
if an application has been filed with the
U.S. Patent and Trademark Office.
Consistent with the guidance set forth in
Atomic Energy Commission’s ‘‘Novel
Methods of Isotope Separation:
Procedures for Reports on Research’’ (37
FR 15393; August 1, 1972), upon receipt
of the report, the DOE will provide the
person with appropriate guidance on
the proper classification of information,
components, technology or other matter
related to the invention or discovery. If
the DOE determines that any of this
information, components, technology or
other matter is Restricted Data, the
person would be directed to protect it in
accordance with the requirements set
forth in Sections 141 through 143 and
Sections 224 through 227 of the AEA.
The NRC expects that any sensitive
information, components and
technology associated with an ENR
technology developed in the United
States would be subject to these
requirements. Furthermore, the NRC is
confident that these restrictions on the
possession, use and dissemination of
Restricted Data adequately address the
proliferation risks associated with a
domestically developed ENR
technology. Therefore, the NRC is also
confident that information on a
domestically developed ENR technology
is adequately protected and
proliferation risks associated with a
particular ENR technology have already
been assessed by the U.S. Government
prior to an NRC licensing proceeding. If
an applicant receives a license for a
facility utilizing a domestically
developed ENR technology, that facility
would be subject to the NRC’s
comprehensive regulatory framework.
Consistent with its statutory
authorities under the AEA, the
Commission will not issue a license for
an ENR facility if it determines that
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such a facility would constitute an
unreasonable risk to the health and
safety of the public or would be inimical
to the common defense and security.
The AEA does not require a nuclear
proliferation assessment as a
prerequisite to the domestic licensing of
an ENR facility. However, as explained
more fully in response to petition
Assertion 2, the NRC’s existing
comprehensive licensing framework
adequately addresses proliferation risks
and concerns associated with access to
ENR technology and construction and
operation of an ENR facility in the U.S.
This framework ensures that access to
NRC-licensed ENR facilities and
technology is properly controlled
through appropriate physical protection,
personnel security, and information
protection requirements. Furthermore,
the NRC, through its ongoing interaction
with other Federal agencies, ensures
that its licensing framework and
oversight activities are aligned with
national nonproliferation policies and
objectives.
The petitioner pointed out that GLE
performed an independent nuclear
proliferation assessment of its laser
enrichment facility. The NRC notes that
this assessment was performed for
GLE’s own corporate purposes and not
in response to an NRC licensing
requirement. The GLE did not submit
the assessment as part of its application
and the NRC did not consider this
assessment as part of its licensing
review of the proposed GLE facility.
The independent proliferation
assessment performed by GLE is
separate and distinct from the NPAS
performed pursuant to the Section 123
agreement between the U.S.
Government and the Government of
Australia. This NPAS was prepared by
the DOS and supported the decision to
allow the SILEX technology to be
transferred from Australia to the United
States. Thus, the proliferation risks
associated with the SILEX technology
had already been considered by the
Executive Branch prior to GLE
submitting a license application to the
NRC.
To the extent that the petition is
concerned about developing and
promoting global implementation of
U.S. nonproliferation policies and goals,
the DOS, with the assistance of other
Federal agencies within the Executive
Branch, has primary responsibility,
expertise and dedicated resources for
leading such efforts. These agencies
regularly assess the international threat
environment to ascertain which foreign
nations or sub-national organizations
are or may be trying to obtain or use
ENR technology for proliferation
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purposes and work through diplomatic
and other channels to deter such efforts.
An NRC domestic licensing proceeding
is not the proper forum for establishing
national nonproliferation policies and
objectives. Furthermore, the petitioner
has failed to demonstrate how a licenseby-license nuclear proliferation
assessment prepared by an applicant
with far less relevant proliferation
information available to it than either
the NRC or the Executive branch, would
assist the NRC in carrying out its
statutory responsibility to protect public
health and safety and to promote
common defense and security when
licensing an ENR facility.
One of the NRC’s primary concerns is
to ensure that the facilities it regulates
that manufacture or use enriched
uranium and plutonium do so safely
and securely. The NRC’s regulations on
physical security, information security,
material control and accounting, cyber
security, and export control create a
tapestry of protection for the material
and technology at NRC-regulated fuel
cycle facilities. These regulations,
which focus on preventing the theft or
diversion of radioactive materials and
classified technologies, take
proliferation considerations into
account. The petitioner has not
demonstrated that the NRC’s current
licensing program is deficient.
Assertion 2
The petition asserted that the NRC’s
current licensing process is insufficient
to address proliferation concerns. The
petition stated that the current licensing
process uses a ‘‘net effect’’ in which
proliferation-relevant issues are spread
across the license application and never
synthesized. Therefore, nonproliferation
is not given an adequate level of
attention, because the NRC does not
require a nuclear proliferation
assessment as a part of its licensing
process for ENR facilities. Consequently,
the petition claimed that the current
process may overlook some properties
of the technology which merit attention
in a proliferation context.
In addition, the petition stated that
key questions regarding the degree of
proliferation risk of an ENR technology
could go unaddressed under the NRC’s
‘‘net effect’’ approach. According to the
petitioner, such questions include, but
would not be limited to, the following:
• Could the design of the technology
be altered easily to allow for diversion
of nuclear material?
• Could the facility be constructed
and operated in a manner that is
undetectable?
• Are there unique components of the
technology whose acquisition would
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indicate the construction of such a
facility and could be easily tracked?
NRC Response to Assertion 2
The NRC disagrees that its current
approach to licensing ENR facilities is
insufficient. Safety and security,
including proliferation risks, are
adequately addressed by the NRC’s
comprehensive licensing framework,
which includes: (1) Extensive regulatory
requirements, (2) ongoing oversight, and
(3) active Federal interagency
cooperation. Each piece of this
framework is described in the following
paragraphs.
With regard to the NRC’s extensive
regulatory requirements, ENR licensees
must comply with applicable
requirements in 10 CFR parts 25, 30, 40,
50, 70, 73, 74, 95, and 110. Part 30 of
10 CFR, ‘‘Rules of General Applicability
to Domestic Licensing of Byproduct
Material;’’ 10 CFR part 40, ‘‘Domestic
Licensing of Source Material;’’ 10 CFR
part 50, ‘‘Domestic Licensing of
Production and Utilization Facilities;’’
and 10 CFR part 70, ‘‘Domestic
Licensing of Special Nuclear Material;’’
address the domestic licensing of
byproduct material, source material,
reprocessing facilities, and facilities that
handle SNM, respectively.
Regulations under 10 CFR part 73,
‘‘Physical Protection of Plants and
Materials,’’ prescribe requirements for
the establishment and maintenance of a
physical protection system to protect
SNM at fixed sites and in transit, and to
protect plants where SNM is used.
These regulations provide requirements
to protect against radiological sabotage
and prevent the theft and diversion of
SNM. For example, 10 CFR 73.67 and
73.71 include physical protection
requirements for SNM of moderate and
low strategic significance and reporting
requirements for safeguards events. In
addition, 10 CFR 73.73 and 73.74
include requirements for advance notice
and protection of export and import
shipments of specified materials.
Further, appendix B to 10 CFR part 73
contains the Criteria for Security
Personnel (training) for these types of
facilities and appendix C to 10 CFR part
73 includes detailed requirements for a
safeguards contingency plan.
Regulations under 10 CFR part 74,
‘‘Material Control and Accounting of
Special Nuclear Material,’’ include
requirements for the control and
accounting of SNM at fixed sites and for
documenting the transfer of SNM. For
example, general performance objectives
in 10 CFR 74.31, 74.41, and 74.51
address material control and accounting
(MC&A) requirements for SNM of low,
moderate, and strategic significance. To
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meet these objectives, licensees must
have a Fundamental Nuclear Material
Control Plan that includes, for example,
a measurement control program,
physical inventories, and the ability to
aide in or conduct investigations of
SNM losses. Additionally, 10 CFR 74.33
requires licensees authorized to possess
equipment capable of enriching
uranium or operating an enrichment
facility, and producing, or possessing a
specified amount of SNM, to have an
MC&A system that will protect against
and detect unauthorized production of
SNM. Finally, 10 CFR 74.11 includes
requirements for licensees that possess
specified quantities to report loss, theft
or attempted theft or unauthorized
production of SNM to the NRC. By
requiring capabilities to measure,
control, detect, and report the loss, theft
or attempted theft or unauthorized
production of SNM, these regulations
address nuclear proliferation risks and
the concern stated in the petition’s first
question (‘‘Could the design of the
technology be altered easily to allow for
diversion of nuclear material?’’).
The requirements in 10 CFR part 95,
‘‘Facility Security Clearance and
Safeguarding of National Security
Information and Restricted Data,’’ and
10 CFR part 25, ‘‘Access Authorization,’’
require licensees to maintain programs
for protecting and preventing
unauthorized access to classified
National Security Information,
Restricted Data, and associated
classified technology. These
requirements are designed to restrict
access to nuclear technology to only
those with a need-to-know and ensure
that adequate controls exist to protect
and handle such information through
physical protective measures,
information security requirements, and
administrative security controls. The
NRC requirements address the actual
and postulated threats against facilities
and the sensitive information they
possess. These regulations are part of
the NRC’s extensive effort to address
proliferation risks and concerns by
ensuring that only authorized
individuals have access to classified
information and technologies, and they
are legally obligated to protect it from
unauthorized disclosure.
In addition, 10 CFR part 110, ‘‘Export
and Import of Nuclear Equipment and
Material,’’ includes requirements for
controlling the export and import of
nuclear materials and equipment by
NRC or Agreement State licensees.
Export license reviews address
proliferation concerns by requiring the
U.S. Government to obtain assurances
from the recipient foreign government
that, among other things: (1) IAEA
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safeguards will be applied as required
by Article III (2) of the Treaty on the
Nonproliferation of Nuclear Weapons;
(2) adequate physical security measures
will be maintained; and (3) the material
being exported will not be transferred to
another country without prior U.S.
Government approval. Domestic
importers of nuclear materials are
required to be licensed by the NRC or
an Agreement State to possess the
material before they are allowed to
import the material into the U.S. By
controlling import and export of nuclear
materials and equipment, these
requirements address proliferation risks
and concerns.
‘‘Ongoing oversight’’ refers to the
NRC’s inspection of licensee and
applicant facilities, to enforce
compliance with NRC regulatory
requirements. If any regulatory concerns
are identified during these inspections,
licensees may be required to take
corrective actions, including
implementing compensatory measures
as appropriate, to address these
concerns.
For example, the NRC staff conducts
annual inspections of all enrichment
licensees and their contractors to ensure
compliance with 10 CFR part 25 and 95
requirements. The DOE, under a
reimbursable agreement with the NRC,
participates in these inspections,
certifying and accrediting on behalf of
the NRC all classified computer
networks used by enrichment licensees
and their contractors. If security risks
are identified during these inspections,
the licensee must take steps to correct
the security risk. Additionally, if these
inspections identify generic risks
applicable to all licensees, the NRC will
supplement its regulations and/or issue
orders addressing these risks, as
appropriate.
The term ‘‘active interagency
cooperation’’ refers to the NRC’s
ongoing contact and active collaboration
with other government agencies to assist
in meeting the U.S. Government’s
broader national nuclear
nonproliferation goals and policies. The
NRC interacts continuously with other
Federal agencies at a variety of levels to
share information related to various
threats and activities, including those
related to proliferation concerns, inside
and outside the U.S.
The President and the Congress have
the primary responsibility for
developing and promoting the Federal
Government’s national nuclear
nonproliferation goals and policies. The
DOS, working with the DOE and other
Federal agencies, has the primary
responsibility for implementing those
goals and policies both domestically
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and internationally. The NRC actively
cooperates with the DOS, the DOE, and
other Federal agencies including, but
not limited to, the DOC, the DOD, the
U.S. Department of Homeland Security,
the Federal Bureau of Investigation, and
the various intelligence agencies in this
process. Through this cooperation, the
NRC ensures that its licensing activities
are aligned with the Nation’s
nonproliferation goals and policies.
In addition to these cooperative
activities, the NRC also collaborates
with representatives of other U.S.
Government agencies in various
multilateral and bilateral initiatives to
promote nuclear safety and security. For
example, with respect to exports, the
NRC actively supports U.S. Government
participation in the Nuclear Suppliers
Group (NSG). The NSG is a group of
nuclear supplier states that seeks to
prevent the proliferation of nuclear
weapons through the implementation of
two sets of guidelines for nuclear
exports and nuclear related exports. The
NSG guidelines are: (1) Guidelines for
the Export of Nuclear Material,
Equipment and Technology (INFCIRC/
254/Rev.10/Part1); and (2) Guidelines
for Transfers of Nuclear Related DualUse Equipment, Materials, Software and
Related Technology (INFCIRC/254/
Rev.7/Part2).
The NSG guidelines aim to ensure
that nuclear trade for peaceful purposes
does not contribute to the proliferation
of nuclear weapons or other nuclear
explosive devices, and that the
international trade and cooperation in
the nuclear field is not hindered
unjustly in the process. The NRC is
responsible for implementing the NSG
Part 1 guidelines, consistent with its
authority under the AEA, in 10 CFR part
110. The DOC implements the NSG Part
2 guidelines in its Export
Administration Regulations. The NRC’s
export licensing criteria are consistent
with, and in some instances more
comprehensive than, the NSG Part 1
guidelines. Part 1 of the NSG guidelines
contains a ‘‘Trigger List’’ that is
illustrative of commodities ‘‘especially
designed or prepared’’ for the
processing, use, or production of special
fissionable material. In addition to the
export licensing criteria that must be
met, 10 CFR part 110 also incorporates
Part 1 by essentially reproducing the
Trigger List in several appendices to
part 110. While 10 CFR part 110 is
maintained and updated to be
consistent with the NSG guidelines, the
appendices to 10 CFR part 110 are
illustrative because the NRC has long
recognized that the type of nuclear
technologies and equipment that need
to be controlled for proliferation
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33999
purposes is dynamic and will continue
to evolve. The NRC’s 10 CFR part 110
regulations, and ongoing interaction
with the DOC and other Federal
agencies, ensure that the NRC has access
to and considers relevant information
on ENR technologies. This information
exchange with other U.S. Government
agencies and multilateral organizations
such as the NSG, addresses the concerns
raised in the petitioner’s third question:
‘‘Are there unique components of the
technology whose acquisition would
indicate the construction of such a
facility and could be easily tracked?’’
The NRC also works closely with the
DOE to ensure classified information is
protected. The DOE requirements for
protection of classified material are
generally reflected in NEI 08–11,
‘‘Information Security Program
Guidelines For Protection Of Classified
Material At Uranium Enrichment
Facilities,’’ published by the Nuclear
Energy Institute (NEI). In addition to
complying with the NRC’s requirements
for the protection of classified material,
all the NRC’s enrichment licensees and
their contractors that possess classified
material have voluntarily committed to
adhere to additional information
security measures in NEI 08–11. These
measures are contained in each
licensee’s Standard Practice Procedures
Plan (security plan), which is approved
by the NRC as part of the issuance of a
facility security clearance prior to
facility operation.
Finally, the petition’s second question
stated that the NRC’s ‘‘net effect’’ may
not address the question ‘‘could the
facility be constructed and operated in
a manner that is undetectable?’’ As
described further in response to petition
Assertion 4, the NRC is not aware of any
new ENR technologies that would be too
small or too efficient to detect. The NRC
has determined that existing
requirements and controls minimize the
risk of proliferation by, for example,
protecting against unauthorized access
and disclosure, as well as theft and
diversion of nuclear materials and
equipment. Additionally, the NRC
expects that future technologies and
facilities, such as the one proposed by
GLE, will emit unique environmental
signatures that will enable identification
of a specific nuclear facility.
Therefore, for the reasons previously
explained, the NRC has determined that
the multiple layers of its comprehensive
licensing framework adequately address
proliferation risks and concerns
associated with the NRC licensing of
domestic ENR facilities. Separate from
the license application reviews, the NRC
continuously reviews the domestic and
international threat environment for
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changes that pose credible and specific
threats to the NRC or its licensees. As
new threats are identified, the NRC will
supplement its requirements by rule or
order, as appropriate, and consistent
with its statutory authority to protect
the public health and safety and to
promote the common defense and
security of the United States.
Assertion 3
The petition asserted that the
requested rule change is in the national
security and energy interests of the U.S.,
and that energy security, national
security and nonproliferation are
coupled. The petition stated its support
for nuclear power, but emphasizes that
nuclear power and nuclear materials
must be deployed in a safe, secure, and
responsible manner.
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NRC Response to Assertion 3
The NRC agrees that nuclear power
and nuclear materials must be
developed and utilized in a safe, secure
and responsible manner. Furthermore,
the NRC agrees that the security of the
Nation’s energy supply and reducing
proliferation risks are related to the
national security of the U.S. As
previously explained in the response to
petition Assertion 2, the NRC’s
comprehensive licensing framework
adequately addresses proliferation
concerns associated with the
construction and operation of an ENR
facility in the United States. The
petitioner fails to demonstrate that the
NRC’s licensing framework does not
adequately protect the public health and
safety and promote the common defense
and security of the U.S.
Assertion 4
The petition asserted that, over the
next several years, the NRC will be
reviewing license applications for new
technologies that could carry substantial
proliferation risks. This assertion is
based on findings in a report entitled
‘‘Technical Steps to Support Nuclear
Arsenal Downsizing,’’ released on
February 18, 2010, by an APS Study
Group, ‘‘APS Panel on Public Affairs’’
(see https://www.aps.org/link/
downsizing.cfm). The petition stated
that the membership of this APS Study
Group comprises some of the country’s
leading experts on both the technical
and policy issues related to nuclear
power, nuclear weapons, and
proliferation.
The petition asserted that the APS
Study Group found that some of the
new technologies could be proliferation
‘‘game changers,’’ since they would lead
to smaller, more efficient, and possibly
less expensive methods for the
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production and use of nuclear materials
that would be more difficult to detect.
The APS Study Group cited laser
isotope separation as an example of a
new technology that is substantially
smaller and more energy efficient than
centrifuge enrichment technology.
Consequently, the petition stated that
this technology has raised proliferation
concerns. The petition stated that the
IAEA is sufficiently concerned that
existing detection technologies are not
adequate to address detection of covert
facilities, and that the IAEA established
a division specifically tasked with
improving detection technology. The
petition also stated that the DOE has a
similar program tasked with carrying
out research and development to
improve detection technology, with one
effort dedicated to detecting laser
enrichment.
NRC Response to Assertion 4
The NRC acknowledges that new
technologies may pose proliferation
risks. However, the NRC is not aware of
any existing ENR technologies that
cannot be detected or pose proliferation
risks that are not addressed by the
NRC’s existing licensing framework.
Similarly, the NRC is not aware of, and
the petition did not identify, any new
technologies that would be ‘‘game
changers’’ because they would be less
expensive, too small, or too efficient to
detect.
For example, on September 25, 2012,
the NRC issued a license for the GLE
facility in Wilmington, North Carolina.
The GLE has stated that its laser
enrichment facility will be more
efficient and cost-effective than a
comparably sized gas centrifuge plant.
That facility will not, however, be small
or difficult to detect. Rather, the GLE
facility’s energy consumption will be
similar to that of a gas centrifuge facility
and the facility’s size will be only onethird to one-half smaller than that of a
gas centrifuge facility. The proposed
facility will need nearly 100 acres, its
main operations building will have an
area of approximately 600,000 square
feet, and there will be sections
approximately 160 feet high.
Additionally, the NRC expects that
technologies and facilities, such as the
one proposed by GLE, will emit unique
environmental signatures that will
enable identification of a specific
nuclear facility.
The NRC recognizes that the IAEA
and the DOE are developing new
detection methods for clandestine
facilities and that these technologies
will be important in international efforts
to combat nuclear proliferation. The
NRC staff will use information related to
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new detection technologies from these
IAEA and DOE programs as appropriate
in its licensing programs.
The NRC continues to coordinate with
other Federal agencies to assess the
threat environment and work with
licensees and the nuclear industry to
develop appropriate strategies and
requirements to address identified
threats. Should the NRC identify new
threats or unique proliferation risks that
are not currently addressed by its
licensing framework, the NRC will take
appropriate steps (e.g., issuance of
orders or revised regulations) to address
those risks.
Assertion 5
The petition asserted that the NRC
can address new risks by elevating the
priority of nonproliferation, which
could best be accomplished by
including a nuclear proliferation
assessment in the ENR licensing
process. The petition stated that
members of the U.S. House of
Representatives’ Nuclear Security
Caucus reached a similar conclusion in
a letter dated June 30, 2010, which they
sent to the Commission (ADAMS
Accession No. ML101870023). In this
letter, the members of the Nuclear
Security Caucus discussed the
proliferation paths associated with
enrichment programs, such as the theft
at the URENCO facility in the
Netherlands. Specifically, the members
noted that the ‘‘uncovering of A.Q.
Khan’s clandestine proliferation
networks has taught us that we can
never be too careful in protecting
nuclear materials and technologies.’’
The members concluded that while a
formal assessment of the proliferation
risks of the technology will not ensure
that nuclear technologies are not
diverted to weapons production or other
military purposes, nuclear proliferation
assessments can provide an additional
and perhaps crucial layer of protection
against their proliferation and use
against the U.S.
NRC Response to Assertion 5
The NRC agrees that the U.S. must
remain vigilant in protecting nuclear
materials and technologies. The NRC is
committed to protecting public health
and safety and promoting the common
defense and security. Protecting the
Nation’s nuclear facilities and materials
is a priority of the NRC that is
articulated in the NRC’s mission
statement and is one of the two strategic
goals identified in the NRC’s Strategic
Plan. As described in response to
petition Assertion 2, the NRC’s
regulatory requirements and programs,
and ongoing interagency cooperation,
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adequately address existing
proliferation risks and concerns. The
NRC is not aware of any new
information that would lead the NRC to
conclude that its licensing framework
does not adequately protect the public
health and safety and the common
defense and security.
Furthermore, the NRC’s licensing
framework is flexible and adaptable; the
NRC continually assesses the threat
environment and coordinates with its
Federal partners, including the DOS,
DOE, and DOC. Should the NRC
identify new risks that are not addressed
by its licensing framework, the NRC
would take appropriate steps to address
these risks. Accordingly, the NRC
disagrees that the best way to address
proliferation concerns is to require an
ENR applicant to submit a proliferation
assessment.
Assertion 6
The petition asserted that the
successful commercialization of ENR
technologies may itself stimulate the
interests of proliferants.
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NRC Response to Assertion 6
The NRC’s licensing responsibilities
under the AEA are regulatory in nature;
the NRC does not encourage or
discourage the development of a
particular technology. Moreover, it is
not the NRC’s role, nor is it within the
NRC’s capabilities, to restrict inquiry
into the feasibility of scientific concepts
associated with the nuclear fuel cycle.
Whether or not the issuance of an NRC
license may demonstrate that a
technology is feasible or commercially
viable is not a consideration in the NRC
licensing process.
When a license application is
received, the NRC reviews the
application and makes a licensing
determination consistent with its
statutory responsibility to protect the
public health and safety and promote
the common defense and security. As
described in response to petition
Assertion 2, the NRC has determined
that its licensing framework enables it to
meet these responsibilities. However,
should the NRC identify new risks or
threats, it would supplement this
framework consistent with its statutory
responsibility, as appropriate.
IV. Public Comments on the Petition
and NRC Responses
The notice of receipt of the PRM
invited interested persons to submit
comments. The public comment period
closed on March 8, 2011. The NRC
received responses from 2,389
commenters. Most of these responses
were identical form emails from
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individuals who supported the petition.
There were also 50 comment letters
from individuals, members of Congress,
and interested groups that supported the
petition. Two comment letters, one from
a nuclear industry representative and
one from an individual, opposed the
petition.
Combining similar public comments
resulted in 19 comment categories. A
summary of the comments and the
NRC’s responses follows.
Comment Category 1: NRC’s authority
and obligation to require a nuclear
proliferation assessment as part of the
licensing process.
The petition and 42 comment letters
included statements related to this
category. The petition requested that the
NRC include nuclear proliferation
assessments as part of the domestic
licensing process, stating that such an
assessment is consistent with the NRC’s
requirement to evaluate whether the
issuance of a license ‘‘would be inimical
to the common defense and security or
to the health and safety of the public.’’
Forty-one commenters stated either that
the NRC has the authority or that the
NRC has the obligation to require its
applicants to perform a nuclear
proliferation assessment. One
commenter added that it is within the
capabilities of the NRC staff to review
such an assessment. One commenter
stated that the Congress is reviewing the
AEA and is currently discussing
whether to include a nuclear
proliferation assessment in the NRC’s
regulatory process. One commenter
asserted that the AEA contains no
requirement for the NRC to perform a
nuclear proliferation assessment in the
context of domestic licensing.
NRC Response to Comment Category 1
As discussed in the response to
petition Assertion 2, the NRC has
determined that its licensing framework
adequately addresses proliferation
concerns associated with the licensing
of ENR facilities and that requiring such
an assessment would not assist the NRC
in carrying out its statutory
responsibility to protect public health
and safety and promote the common
defense. If the NRC finds
supplementation of its requirements is
needed, it will take appropriate action,
consistent with its statutory
responsibility.
Comment Category 2: Energy security,
national security and nonproliferation
are coupled.
One commenter stated that there is a
direct relationship between fuel for
nuclear energy and nuclear weapons
proliferation, because uranium
enrichment provides fuel for nuclear
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power and the material for making a
nuclear bomb.
NRC Response to Comment Category 2
The NRC acknowledges that uranium
enrichment provides fuel for nuclear
power reactors. However, the NRC
disagrees that fuels for nuclear energy
and nuclear weapons proliferation have
a direct relationship. The NRC-licensed
nuclear power plants do not use
weapons-grade SNM, and any NRCissued commercial enrichment license
would not authorize the production of
weapons-grade SNM. In addition, the
NRC has an inspection program that
ensures that enrichment facilities are
not modified to produce weapons-grade
SNM.
Comment Category 3: New nuclear
technologies may present unique
proliferation risks.
Thirty-five comment letters made
statements related to this category. The
petition stated that over the next several
years, the NRC will be reviewing license
applications for new technologies that
could carry substantial proliferation
risks. Twenty-two commenters made a
similar comment. Nineteen commenters
agreed with the petition’s statement that
new technologies could be proliferation
‘‘game changers,’’ since they would lead
to smaller, more efficient, and less
expensive technology for the production
and use of nuclear materials that would
be more difficult to detect.
Additionally, one commenter
requested that the NRC conduct a
thorough review of all technology
involved in the laser enrichment project
to identify the technologies or
components that are most proliferationprone or that would be hardest to
acquire by other countries or would-be
proliferators. Another commenter
asserted that new proliferation risks
from laser enrichment methods are not
very amenable to the ‘‘black box’’
technique (exporting technology in a
‘‘black box’’ to protect proprietary and
proliferation secrets), stating that this
method is currently used to export
technology from enrichment and
reprocessing plants.
NRC Response to Comment Category 3
The NRC acknowledges that new
enrichment technologies may pose
proliferation risks, and therefore
facilities using such technology must be
subject to a comprehensive regulatory
regime to ensure the safety and security
of that technology. However, as noted in
response to petition Assertion 2, the
NRC has a comprehensive licensing
framework designed to ensure that ENR
facilities are operated in a safe and
secure manner. Further, as noted in
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response to petition Assertion 4, the
NRC is not aware of, and the petitioner
and commenters have not identified,
any new ENR technologies that ‘‘are
game changers’’ because they are too
small, efficient, or inexpensive to detect.
As described in response to petition
Assertion 2, the NRC also participates
with other U.S. Government agencies in
various organizations such as the NSG,
which seek to prevent the proliferation
of nuclear weapons through the
implementation of two comprehensive
export control lists. The DOE, DOC, and
DOS respectively regulate exports of
nuclear reactors and fuel cycle
technologies, dual-use components and
technologies, and U.S. Munitions Lists
commodities to ensure peaceful use and
to prevent the proliferation of nuclear
weapons. The NRC licensees are
required to comply not only with NRC
regulations but all relevant Federal laws
and regulations.
The ‘‘black box’’ concept mentioned
by one commenter is a mechanism that
can be used to control access to
information and/or technology by
ensuring that only individuals with a
verified need-to-know and appropriate
clearance are given access to it. The
black box concept is consistent with the
NRC’s protective measures for
restricting access to sensitive and
classified technologies and/or
information. The NRC’s regulations
governing access to such technologies
and information implement Federal
Government standards and
requirements for the protection of
sensitive and classified technologies
and/or information. Although the ‘‘black
box’’ concept provides a supplemental
means to protect classified information
and/or technology, its use may not
supersede NRC regulatory requirements.
Comment Category 4:
Commercialization of enrichment
technology may increase interest, which
could result in increased proliferation
risks. Even a non-commercially viable
process can pose proliferation risks, if
the process is successfully implemented.
Twenty-one comment letters made
statements related to this category. The
petition asserted that commercialization
of the technology may itself stimulate
proliferation interests. Sixteen
commenters agreed with the petitioner.
A commenter stated that successful
development of a commercially viable
process is irrelevant, because even
inefficient pilot-scale facilities can pose
significant proliferation risks. Another
commenter stated that feasibility, not
commercial viability, is the key
determinant of proliferation risks.
Finally, a commenter asserted that
GLE’s operation of a test loop, and
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potential move to a larger facility would
be a clear signal that the technology
works, thus attracting interest in it.
NRC Response to Comment Category 4
As explained in response to petition
Assertion 6, the NRC’s licensing
responsibilities are regulatory in nature.
The NRC, as an independent regulatory
agency, does not encourage or
discourage the development of a
particular technology. In addition, it is
not the NRC’s role, nor is it within the
NRC’s capabilities, to restrict inquiry
into scientific concepts associated with
the nuclear fuel cycle. A concern that
the issuance of an NRC license may
demonstrate that a technology is feasible
or commercially viable is not a
consideration in the NRC licensing
process. When evaluating a license
application, the NRC’s role is to
determine if the applicant has satisfied
NRC licensing requirements, including
demonstrating that a proposed facility
would not constitute an unreasonable
risk to the health and safety of the
public or would not be inimical to the
common defense and security. If the
NRC determines that an applicant has
failed to satisfy NRC licensing
requirements, including demonstrating
that the facility or technology could not
be operated in such a manner, the NRC
would deny the license application.
To the extent that the commenters are
concerned that the issuance of a license
or the successful operation of a new
enrichment technology may increase
international interest in that technology,
as explained in response to petition
Assertion 2, the NRC’s extensive
regulatory requirements, ongoing NRC
oversight, and other Federal programs
ensure that classified design details of
the technology are protected from
potential proliferators.
Comment Category 5: Sufficiency of
the current regulatory process to
address nuclear proliferation issues.
Fourteen comment letters included
statements related to this category.
Twelve commenters supported petition
Assertion 2 that the current regulatory
process is insufficient to address
nuclear proliferation issues, while two
commenters took the opposing view.
One commenter supporting the
petition stated that a regulatory gap
exists in the NRC’s regulations that
would be filled by requiring a nuclear
proliferation assessment in domestic
licensing. The commenter claimed that
the gap in the current domestic
licensing framework restricts
consideration of proliferation issues to
the narrow questions of whether or not
a facility meets the NRC’s regulations
for material protection, control and
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accounting, and protection of sensitive
information. The commenter stated that
such a limited review does not take into
account broader issues related to the
indirect impacts of NRC licensing of
sensitive fuel cycle facilities on the
global nonproliferation regime.
Another commenter supporting the
petition stated that the current
regulatory process for assessing
proliferation is defective in that it does
not provide an integrated risk
assessment of this potential but is
instead less focused and therefore less
definitive than it needs to be to fulfill
the NRC’s ‘‘common defense and
security’’ mission. One commenter
stated that requiring a nuclear
proliferation assessment for domestic
licensing would encourage awareness of
proliferation concerns in commercial
entities that could be translated into
design features that improve the
proliferation resistance of future
facilities. A commenter stated that when
considering proliferation concerns of a
pending NRC license application, the
NRC should seek the views of other
government agencies responsible for
providing for the common defense, and
that the NRC have staff capable of
formally assessing these views. One
commenter mentioned that currently no
one is conducting a nuclear
proliferation assessment of nuclear
technology. Similarly, another
commenter stated that while a nuclear
proliferation assessment alone will not
curtail proliferation, it can provide an
added layer of protection that can help
restrict the covert spread of advanced
nuclear fuel technologies.
One commenter stated that whether
new ENR technologies would
significantly increase the risk of
proliferation depends on many factors,
including: (1) The probability of
detecting a clandestine facility; (2)
whether a declared facility can be
effectively safeguarded; (3) whether
technology can be used in the
production of highly-enriched uranium
(relevant for enrichment technologies
only); and (4) whether the intellectual
property for technology that the NRC
chooses not to license would revert to
a foreign entity for development instead.
The commenter asserted that, due to the
technical nature of these factors, the
NRC is the most qualified body to
conduct a proliferation assessment and
should require a nuclear proliferation
assessment as part of its domestic
licensing process.
One commenter supporting the
petition stated that because so few
facilities are actually selected for
safeguards by the IAEA in the U.S.,
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there is less awareness here among
industry and operators than abroad.
One commenter opposing the petition
stated that although the petitioner
rightly invokes elements of the AEA that
speak to licensing activities that ‘‘would
be inimical to the common defense and
security or to the health and safety of
the public,’’ the petition fails to indicate
what current shortfalls there are in
licensees’ obligations regarding
information protection or physical
protection of such facilities.
NRC Response to Comment Category 5
Commenters claim the NRC’s existing
regulatory framework is not sufficient
for several reasons, including: (1) No
one is conducting a nuclear
proliferation assessment of nuclear
technology risks, (2) there is a regulatory
gap because the NRC’s consideration of
proliferation risks is too narrow, and (3)
the NRC’s process fails to include an
integrated risk assessment. The NRC
disagrees with these comments. As
explained in response to petition
Assertion 2, the NRC’s existing
comprehensive licensing framework
adequately addresses proliferation risks
by, for example, including requirements
to prevent unauthorized disclosure of
classified matter and technology, and
provide physical protection of nuclear
equipment and materials.
The commenters have not identified a
regulatory gap or proliferation concern
that is not adequately addressed in the
current licensing framework. The NRC
is not aware of, and the petitioner and
commenters did not identify, any
specific shortcomings in the NRC’s
comprehensive licensing framework
where a nuclear proliferation
assessment by license applicants would
provide significant and meaningful
information that would enhance NRC
decision-making or provide an
‘‘additional layer of protection’’ against
proliferation risks necessary for the NRC
to carry out its responsibilities.
In addition, commenters suggest that
the NRC does not adequately consider
broader nuclear nonproliferation
policies and goals. Specifically,
commenters stated that the NRC does
not consider the impacts that its
domestic licensing actions may have
upon the broader global
nonproliferation regime, and the NRC
should consult with other agencies
when considering the proliferation risks
of a pending license application. As
described in response to petition
Assertion 2, the NRC interacts with
other Federal agencies and receives
information regarding various threats
and activities, including those related to
proliferation concerns. In addition, the
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NRC routinely cooperates with other
U.S. Government agencies on matters
relating to the nation’s security.
Through this extensive cooperation, the
NRC ensures that its licensing activities
are aligned with the nation’s larger
nonproliferation goals and policies.
Further, the U.S. Government, often
supported by the NRC, is actively
engaged in the international
nonproliferation regime as a Member
State at the IAEA, the NSG, and the
Nuclear Energy Agency.
In response to the commenter stating
that a nuclear proliferation assessment
requirement would encourage
awareness of proliferation concerns that
could be translated into design features
that improve the proliferation resistance
of future facilities, the NRC’s existing
licensing framework provides regulatory
requirements that address design
features needed to protect classified
information, ensure physical security of
licensed material, and protect against
the loss, theft or attempted theft, or
unauthorized production of SNM.
Applicants of ENR facilities would be
aware of these design requirements and
would be required to address them in
their facility designs and in their license
applications. A proliferation
assessment, therefore, would add little
benefit to what is already required
under the existing regulations. As
discussed in response to Comment
Category 13, incorporation of safeguards
and MC&A requirements early in the
design phase can be more efficient than
retrofitting them later.
Finally, the NRC agrees that there are
a number of factors that could influence
whether a new ENR technology would
increase the risk of proliferation,
including for example: (1) The
probability of detecting a clandestine
facility; (2) whether a declared facility
can be effectively safeguarded; (3)
whether technology can be used in the
production of highly-enriched uranium
(relevant for enrichment technologies
only); and (4) whether the intellectual
property for technology that the NRC
chooses not to license would revert to
a foreign entity for development.
In response to the factor regarding
clandestine facility detection, the NRC
is not aware of any commercial
enrichment plant that will not have a
significant footprint and will therefore
be difficult to detect, including GLE’s
proposed laser enrichment facility.
However, as previously described, the
NRC’s licensing framework is flexible
and adaptable. If a future technology
presents proliferation risks that are not
addressed by the current framework, the
NRC will act appropriately to protect
the public health and safety and
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promote the common defense and
security.
The NRC agrees that to address
proliferation risks, ENR facilities need
to have adequate safeguards. Existing
NRC requirements and on-going NRC
oversight programs ensure that all NRClicensed nuclear facilities implement
safeguards measures. In addition,
certain U.S. facilities may be subject to
IAEA safeguards inspections.
The NRC is also sensitive to the
concern that new technologies can be
used to produce highly-enriched
uranium. All enrichment facility
applicants have stated in their
applications specific selected
possession limits that limit enriched
uranium production to enrichments no
greater than 10 weight percent uranium
235. Highly-enriched uranium has a
greater than 20 percent concentration of
uranium 235 or uranium 233. Although
it is theoretically possible to make
equipment changes at a facility to
produce enrichments greater than the
facility’s licensed possession limit, the
NRC’s inspections are designed to verify
that licensee facilities do not engage in
diversion, unauthorized production,
and over-enrichment of SNM.
Finally, the NRC recognizes that if it
denies a license, there is a possibility
that the intellectual property for the
technology may be developed in another
country. However, as a regulatory
agency, when making a particular
licensing decision the NRC does not
consider whether the intellectual
property or technology associated with
a license that is denied would revert to
a foreign entity. As described in
response to petition Assertion 6, the
NRC’s licensing responsibilities under
the AEA are regulatory in nature. The
NRC will review each license
application and make a licensing
determination consistent with its
statutory responsibilities. If the NRC
determines that issuance of a license
would be harmful to the public health
and safety or inimical to common
defense and security, the NRC will deny
that license application.
Comment Category 6: Suggested
methods for implementing the proposed
rule.
Five comment letters included
statements related to this category.
Several commenters provided suggested
methods for implementing the
petitioner’s proposed rulemaking.
One commenter suggested that, in
order to determine the most sensitive
areas of laser enrichment technologies
and determine if they pose additional
risks, the NRC should baseline the risks
of gaseous diffusion and centrifuge
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technology versus laser enrichment
technologies.
Several commenters suggested
specific content for a required nuclear
proliferation assessment. One
commenter assumed that in reviewing a
nuclear proliferation assessment, the
NRC would go beyond the document
itself and take into account classified
information pertaining to proliferation
risks relevant to the licensing action.
Another commenter stated that a
nuclear proliferation assessment should
address the novelty of the technology
and the U.S. and international measures
that will be put in place to prevent
proliferation. While another commenter
stated that in addition to the technical
considerations mentioned in the
petition, a proliferation assessment
should take a broader view and analyze
the potential global policy impacts
associated with the NRC licensing
sensitive fuel cycle facilities. The
commenter cited, as an example, the
DOE’s 1999 ‘‘Nonproliferation Impacts
Assessment for the Treatment and
Management of Sodium-Bonded Spent
Nuclear Fuel’’ (DOE/EIS–0306D) that
considered three technical factors and
four policy factors associated with a
proposal to use a U.S. facility to
chemically treat a stockpile of U.S.
spent nuclear fuel.
One commenter stated that a nuclear
proliferation assessment could be one
vehicle for remedying the issues
identified in the APS petition but
believes that the NRC staff could also
identify an equivalent alternative to
address the petitioner’s assertions that
maximized staff efficiency,
transparency, and effectiveness.
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NRC Response to Comment Category 6
The NRC does not agree that laser
enrichment facility risks need to be
baselined against the risks of gaseous
diffusion plants and centrifuge
technology to determine the most
sensitive areas of laser enrichment
technologies and determine if they pose
additional risks. The NRC’s regulations
apply to all current and future
commercial enrichment facilities in the
United States. As discussed in response
to petition Assertion 2, the NRC has
determined that its existing licensing
framework adequately addresses
proliferation risks by, for example,
including requirements to prevent
unauthorized disclosure of classified
matter and sensitive technologies, and
provide physical protection of nuclear
equipment and materials. Because the
existing licensing framework is
adequate, a baselining study of other
facilities is not necessary to assess
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regulatory compliance or proliferation
risks.
The NRC will not speculate about
suggested content for a ‘‘required’’
nuclear proliferation assessment. As
previously discussed, the NRC has
determined that in light of the current
licensing framework, revising 10 CFR
part 70 to require a proliferation
assessment would not provide new and
significant information that would
enhance the NRC’s decision-making or
assist the NRC in carrying out its
statutory responsibilities.
Comment Category 7: The NRC’s
decision to license new technology will
set a precedent for the international
nuclear industry.
Two comment letters included
statements related to this category. One
commenter stated that the NRC
continues to have influence as a leader
in the movement to improve nuclear
safeguards, safety, and security; thus, an
NRC decision to require a nuclear
proliferation assessment as part of the
licensing process would help move
international nuclear industry
consensus in that direction. Another
commenter stated that the NRC’s
approval of new technology is likely to
serve as a precedent for greater use
elsewhere.
NRC Response to Comment Category 7
The NRC does not agree that its
decision to license a domestic ENR
facility utilizing a particular enrichment
technology would necessarily cause
other countries to develop that
particular technology. Many other
factors would play a role in a particular
government’s pursuit of ENR
technology, including its political will,
technical expertise, financial capital,
and international obligations.
Additionally, as stated in response to
petition Assertion 1, speculative
assertions regarding the potential
influence of NRC decisions are not
considered in domestic licensing
proceedings. The DOS, working with
the DOE and other Federal agencies, has
the primary responsibility for
implementing the Federal Government’s
national nuclear nonproliferation goals
and policies. The NRC does strive to
improve nuclear safety and security
internationally as well as domestically.
However, as stated previously, the NRC
does not agree with the comment that
requiring the NRC’s licensees to submit
a nuclear proliferation assessment of the
risks of constructing and operating an
ENR facility would further the goal of
improving nuclear safeguards, safety, or
security.
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Comment Category 8: Industry is
committed to protecting against
proliferation.
One comment letter opposing the
petition stated that (1) uranium
enrichment facilities have voluntarily
committed to implement additional
measures to enhance the protection of
information associated with classified
enrichment technologies, and (2) these
additional commitments are
incorporated into facility-specific
security plans. The commenter also
stated that its organization has
developed a guidance document
endorsed by the NRC that provides
guidance to enrichment facility
licensees to assist in protecting against
proliferation of classified technology,
information, and equipment.
NRC Response to Comment Category 8
The NRC recognizes that NRC
enrichment licensees and their
contractors that possess classified
material have voluntarily committed to
adhere to additional information
security measures not addressed in 10
CFR part 95. These voluntary security
enhancements are set forth in NEI 08–
11, ‘‘Information Security Program
Guidelines for Protection of Classified
Material at Uranium Enrichment
Facilities,’’ published by the NEI. These
measures are contained in each
licensee’s security plan. This plan is
reviewed and approved by the NRC as
part of the issuance of a facility security
clearance prior to facility operation.
Adherence to the security plan is also
required by a condition in each license.
Comment Category 9: NRC should
consider terrorism as part of the
licensing process.
Two comment letters included
comments in this category. One
commenter stated that the ever-present
threat of terrorism is a reason for a
nuclear proliferation assessment being
part of the licensing process. The other
commenter suggested that the petition’s
suggestion to perform a nuclear
proliferation assessment does not go far
enough, and instead, a ‘‘nuclear
proliferation and terrorism assessment’’
should be required. This assessment
would evaluate ‘‘beyond-design-basis’’
proliferation and terrorism impacts by
considering diversion and theft
scenarios by adversaries with
capabilities exceeding the design basis
threats for theft or diversion of SNM.
The commenter claimed that this would
make the assessment comparable to the
aircraft impact assessment required for
new nuclear plant applications in 10
CFR 50.150.
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NRC Response to Comment Category 9
The NRC agrees that protection
measures for its regulated facilities
should address known threats,
including the threats from overt,
malevolent acts that may involve
violence. The NRC interacts regularly
with its Federal partners to remain
current on potential threats directed
against NRC-licensed facilities and
keeps its licensees informed of changes
to the threat environment. The NRC’s
physical protection requirements in 10
CFR part 73 require that licensees
protect against credible attacks from
various adversary scenarios. The NRC’s
comprehensive licensing framework is
flexible and adaptable, and will be
updated as necessary to reflect
protective measures to address the
changing threat environment. In the
event the NRC determines that
additional measures are needed to
protect against a potential threat, the
NRC would supplement its
requirements by rule or order, as
appropriate.
The commenters failed to demonstrate
that a ‘‘nuclear proliferation and
terrorism assessment’’ would provide
significant and meaningful information
that would enhance the NRC’s decisionmaking when licensing an ENR facility.
As discussed in response to petition
Assertions 1 and 2, the NRC has
determined that in light of the current
comprehensive licensing framework,
revising 10 CFR part 70 to require a
proliferation assessment would not
assist the NRC in carrying out its
statutory responsibilities.
Comment Category 10: Proliferation
risks should be assessed early in the
regulatory process.
Four comment letters supporting the
petition included comments in this
category. One commenter stated that it
is imperative that we understand what
world we are about to create instead of
discovering the proliferation
consequences after the fact. Other
commenters stated that it is important
for proliferation assessments to be
prepared before new nuclear
technologies are licensed, instead of
waiting to deal with situations in which
technology may be proliferating due to
commercial demands or because of
clandestine use. One commenter stated
that waiting to deal with such a
situation is contrary to the agency’s
principal mission to protect the health
and safety of the public and to assure
the common defense and security.
NRC Response to Comment Category 10
The safety and security of nuclear
materials and facilities are assessed
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throughout the NRC domestic licensing
process. As discussed in the response to
the petition Assertion 2, the NRC’s
comprehensive licensing framework
addresses proliferation risks by, for
example, including requirements to
prevent the unauthorized disclosure of
classified matter and sensitive
technologies, and provide physical
protection of nuclear equipment and
materials. The NRC’s regulatory
framework is adequate to address
proliferation concerns throughout the
licensing process. The NRC, however,
acknowledges that future technologies
may pose new or unique proliferation
risks. Because the NRC’s licensing
framework is flexible and adaptable, if
the NRC determines that a new
technology or threat necessitates
additional requirements to protect the
public health and safety or promote the
common defense and security, the NRC
will supplement its requirements by
rule or order, as appropriate.
Comment Category 11: NRC’s
consideration of proliferation risks and
the National Environmental Policy Act
(NEPA).
Two comment letters included
comments in this category. Citing San
Luis Obispo Mothers for Peace v. NRC,
449 F.3d 1016 (9th Cir. 2006), one
commenter stated that the NRC is
already obligated under NEPA to
analyze proliferation implications of
any new nuclear technologies because
NEPA requires consideration of ‘‘the full
range of risks to the common defense
and security potentially arising from its
licensing decision, and must consider
all reasonable alternatives that could
eliminate or mitigate those risks.’’ This
commenter also claimed that the NRC
has a ‘‘double standard,’’ because in its
environmental impact statements (EIS)
it addresses national security concerns
that support licensing decisions but
dismisses national security concerns
that undermine licensing decisions as
beyond the scope of the EIS. This
commenter further claimed that the
NRC demonstrates a lack of judgment by
generally assessing a wide range of
environmental impacts but not
performing a thorough nonproliferation
assessment of the proposed GLE facility.
The commenter attached comments on
the draft EIS for the proposed GLE
facility for purposes of incorporating
them in this PRM record.
Another commenter took the
opposing view, asserting that NEPA
does not require a nuclear proliferation
assessment.
NRC Response to Comment Category 11
Comments regarding NEPA are
beyond the scope of the petition. The
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petition requests that the NRC
implement a requirement to perform a
nuclear proliferation assessment
consistent with its statutory authority
under the AEA. The petition did not
request that the NRC implement a
requirement to perform a nuclear
proliferation assessment under NEPA.
In addition, comments on the draft EIS
for the proposed GLE facility are outside
the scope of this PRM and were
addressed by the NRC in the final EIS
issued in February 2012 (ADAMS
Accession Nos. ML12047A040 and
ML12047A042).
Comment Category 12: U.S.
obligations under binding United
Nations Security Council Resolution
1540 paragraph 3(d).
Two comment letters supporting the
petition included comments in this
category. Both commenters stated that a
nuclear proliferation assessment by the
NRC for sensitive technologies would
implement U.S. obligations under
binding United Nations Security
Council Resolution 1540 paragraph 3(d)
to establish, develop, review, and
maintain appropriate effective national
export and trans-shipment controls over
materials, equipment, and technology
that could assist the development of
weapons of mass destruction.
One commenter stated that the
framework for legal nuclear export
controls codified in the Energy
Reorganization Act of 1974 (ERA), the
Nuclear Non-Proliferation Act (NNPA),
and subsequent legislation supports the
NRC’s independent analysis of the
proliferation significance of licensed
nuclear exports. The commenter also
stated that relevant Executive Orders
and regulations provide appropriate
procedures for Executive Branch
agencies to provide relevant views on
foreign policy and national security
judgments in the licensing process. The
commenter further stated that appeals
procedures also enable license
applicants or others to seek review of
adverse decisions. Thus, the nuclear
proliferation assessment sought by the
APS will not disrupt NRC export
licensing functions. Instead, the nuclear
proliferation assessment will contribute
to the achievement of important
nonproliferation objectives.
NRC Response to Comment Category 12
United Nations Security Council
Resolution 1540 Section (3)(d) requires
all United Nations-member states to
adopt and enforce appropriate and
effective laws against the proliferation
of weapons of mass destruction, their
means of delivery, and related materials.
The U.S. Government has established
broad policies designed to address U.S.
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proliferation concerns. However, United
Nations Resolution 1540 does not
require the NRC to conduct a nuclear
proliferation assessment in an NRC
domestic licensing process. Similarly,
there is no requirement in the AEA,
ERA, NNPA, or other legislation
requiring the NRC to conduct a nuclear
proliferation assessment as part of its
domestic licensing process.
It is not clear to which Executive
Orders the commenter is referring, and
the NRC is not aware of any Executive
Orders requiring a nuclear proliferation
assessment in an NRC domestic
licensing process. To the extent that the
issues raised by the commenter address
broader foreign policy issues, other
Executive Branch agencies have primary
responsibility for addressing
proliferation concerns and foreign
policy initiatives.
Regarding the commenter’s reference
to export controls, the AEA and NRC
regulations (10 CFR part 110) provide
comprehensive export controls for
nuclear equipment and material under
NRC jurisdiction, as discussed in the
response to petition Assertion 2. Other
Executive Branch agencies are also
responsible for implementing export
controls for items of concern for
proliferation purposes. For example, the
DOC’s Bureau of Industry and Security
implements export controls over dualuse items under its Export
Administration Regulations, while the
DOS’s Directorate of Defense Trade
Controls implements export controls
over items of a military nature under its
International Trafficking in Arms
regulations.
Comment Category 13: Proliferation
assessments aid safeguards.
Three comment letters supporting the
petition included comments in this
category. One commenter stated that
standards should be established to
ensure that sensitive nuclear facilities
are designed to support effective
safeguards against any kind of diversion
or misuse of SNM. This commenter also
stated that requiring industries to
prepare a nuclear proliferation
assessment will serve the nuclear
industry as well, in that steps to
facilitate safeguards are more likely to
be incorporated into the design of the
facilities rather than be retrofitted later
with higher cost and reduced
effectiveness.
Another commenter stated that the
objective of institutionalizing the
safeguards-by-design process ‘‘is to
provide a procedure by which
international and national safeguards,
physical security, and other
nonproliferation objectives are fully
integrated into the overall design and
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construction process for a nuclear
facility, from initial planning
throughout design and construction and
with benefit to operation; with the goal
of increasing the safeguardability,
protectability and proliferation
resistance of facilities.’’ A proliferation
assessment can determine whether a
facility can meet higher safeguards
standards or whether there is something
inherent in the technology that makes it
harder to safeguard. The commenter
also asserted that the NRC needs to
ensure that a proper assessment of laser
enrichment technology is conducted.
The commenter stated that the NRC
must ensure that no sensitive
information is publicly revealed and
that the NRC must consult with DOE
experts when reviewing the
proliferation assessment on the GLE
facility.
NRC Response to Comment Category 13
The NRC agrees that effective
safeguards against diversion and misuse
of SNM are necessary. The NRC also
agrees that incorporation of safeguards
through application of the NRC’s MC&A
and other related requirements early in
the design phase can be more efficient
than retrofitting them later. As
discussed in response to petition
Assertion 2, the NRC’s comprehensive
regulatory infrastructure (specifically,
10 CFR parts 73 and 74), addresses the
physical protection of SNM against
radiological sabotage, theft, and
diversion, and MC&A of SNM, protects
against diversion and misuse of SNM.
These NRC requirements have been and
continue to be applied by applicants
and licensees to facilities in early design
phases. In addition, the NRC staff is
working with the DOE to assess if
meaningful IAEA inspections can be
implemented at a laser enrichment
facility without improperly revealing
classified matter.
The NRC agrees with comments
noting that (1) Safeguards-by-Design is
an important tool for addressing the
implementation of safeguards
requirements, and (2) it is important to
design a facility so that classified
information is not revealed. The term
Safeguards-by-Design is a design
process that considers safeguards
requirements early in the design of a
facility. As previously stated, the NRC’s
existing regulatory framework supports
an enrichment facility applicant’s
assessment of safeguards considerations
early in the design process of their
respective facilities.
Comment Category 14: Whether
additional steps are needed to ensure
that employees do not increase
proliferation risks.
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Two comment letters included
comments in this category. One
commenter, supporting the petition,
stated that history demonstrates that
employees in the nuclear industry can
increase the risk of proliferation. The
commenter asserted that these
technologies have spread covertly
around the world in part because one
individual (A.Q. Khan) stole plans from
his employer (URENCO); therefore,
additional steps are necessary to prevent
employees from improperly gaining
access to even more advanced nuclear
technologies.
One commenter disagreed and states
that A.Q. Khan invariably gets invoked
in the proliferation discussion, but
wrongly so. The commenter asserted
that ‘‘the U.S. intelligence community
was well aware’’ of A.Q. Khan’s
activities and A.Q. Khan continued his
extended proliferation efforts due to
politics and policy, not technological
limitations.
NRC Response to Comment Category 14
The NRC disagrees that it needs to
take additional steps to prevent nuclear
industry employees from gaining access
to and disclosing sensitive nuclear
technologies and information to wouldbe proliferants. Parts 25 and 95 of 10
CFR include comprehensive
requirements governing access to SNM
and sensitive enrichment technology.
These requirements are designed to
ensure that: (1) Access to nuclear
technology is restricted to those with an
appropriate clearance and a need-toknow, and (2) adequate controls exist to
protect and prevent the unauthorized
disclosure of classified information and
the diversion of nuclear materials
considered important to the national
security. For example, access
authorization requirements address an
employee’s suitability, trustworthiness
and reliability before and during the
time he/she is working at the facility.
Additionally, periodic reviews of an
individual’s background and
trustworthiness continue during the
individual’s employment. Upon
termination, employees are informed of
their continuing responsibilities with
respect to protection of information.
Violations of these requirements can
result in civil and criminal penalties.
The NRC conducts inspections to verify
compliance with these requirements. In
addition, as previously described, the
NRC regularly coordinates with other
Federal agencies, including the
intelligence community, to assess
potential and real threats to information,
facilities, and individuals.
Comment Category 15: NRC should
follow the DOE’s example of conducting
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nonproliferation impact assessments in
the context of major proposed actions
involving domestic processing of SNM.
One comment letter supporting the
petition included comments in this
category. The commenter stated that the
DOE has conducted several
nonproliferation impact assessments in
the context of major proposed actions
involving domestic processing of SNM
and that the NRC should follow its
example.
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NRC Response to Comment Category 15
For the reasons discussed in response
to petition Assertion 2, the NRC has
determined that its existing licensing
framework is adequate and preparing a
proliferation assessment would not
assist the NRC in carrying out its
statutory responsibilities to protect the
public health and safety and promote
the common defense and security.
Therefore, it is unnecessary for the NRC
to require ENR facility applicants to
conduct such assessments. The NRC,
however, will continue to work closely
with other Federal agencies to ensure
that its licensing activities are consistent
with broader U.S. nonproliferation goals
and policies and that nuclear materials
and technologies continue to be used in
a safe and secure manner.
Comment Category 16: NRC should
require a proliferation assessment for all
fuel cycle facility license applications.
One comment letter supporting the
petition included comments in this
category. The commenter stated that the
NRC should increase the scope of the
petition by requiring proliferation
assessments for all fuel cycle facilities
seeking to produce, possess, and/or use
SNM under 10 CFR parts 50 and 70,
including mixed oxide fuel fabrication
facilities and uranium conversion
plants. The commenter suggested that
the intensity of the review could be
graded in accordance with the
sensitivity of the facility.
NRC Response to Comment Category 16
The NRC disagrees that proliferation
assessments should be required for all
fuel cycle facilities. Existing NRC
requirements address proliferation risks
and concerns at all fuel cycle facilities.
As discussed in response to petition
Assertion 2, the existing NRC licensing
framework is adequate to address
proliferation concerns associated with
nuclear fuel cycle facilities by including
requirements to prevent the
unauthorized disclosure of classified
matter and sensitive technologies, and
provide physical protection of nuclear
equipment and materials. As for the
suggestion that NRC staff grade its
reviews based on the sensitivity of the
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facility, the NRC staff currently
performs risk-informed reviews of
license applications based on the risks
associated with the types, physical and
chemical forms, and quantities of
materials to be possessed and used at
the facility.
Comment Category 17: Policy-related
issues.
Nine comment letters included
statements related to policy issues.
Seven commenters supported the
petition, and two commenters opposed
the petition.
One comment letter questioned
whether laser technology could increase
the risk of plutonium production. The
commenter questioned whether the
SILEX technology, which is used to
separate silicon and zirconium from
other materials, could be adjusted to
purify other kinds of materials such as
SNM. The commenter further asserted
that in the mid-1980s, the DOE pursued
a Special Isotope Separation facility to
separate plutonium 239 from other
isotopes of plutonium. Pursuit of the
technology (and the associated EIS
process) was canceled, but it is
unknown if the current laser technology
could be adapted for the purification of
plutonium.
One commenter supporting the
petition stated that the NRC would be
wrong to presume that it need not ‘‘pick
sides’’ in this debate simply because
SILEX will not be exported. The
commenter went on to explain that in
1976, the United States deferred the
commercial, domestic use of plutoniumbased fuels because of the potential
adverse proliferation implications of
proceeding. Given this precedent, and
the distinct possibility that the negative
proliferation implications SILEX’s
domestic deployment today might equal
or exceed those associated with
plutonium-based fuels in 1976, the
commenter stated that it would only be
prudent for the NRC to secure and
formally evaluate the views of those
primarily responsible for providing for
the nation’s security. Similarly, another
commenter stated the United States has
previously abandoned a civil nuclear
effort (reprocessing and recycling of
plutonium) in order to combat
proliferation and that, in this spirit, the
NRC should make a rigorous and
distinct proliferation assessment a new
part of the licensing criteria.
One commenter opposing the petition
stated that the petitioner has not made
an adequate case for NRC consideration.
The commenter stated that the petition
confuses technical and licensing issues
within the scope of the NRC’s licensing
processes with broader aspects of the
U.S. Government’s nuclear
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nonproliferation policy, which is
outside the scope of the NRC’s
regulatory jurisdiction. The commenter
stated that such policy involves a wide
range of agencies within the U.S.
Government, not just the NRC, and that
the petitioner fails to acknowledge these
substantial efforts.
Another commenter opposing the
petition stated that Section 123 of the
AEA requires that the DOS conduct an
NPAS in developing agreements with
other nations for peaceful nuclear
activities. These Section 123 agreements
reflect the views and recommendations
of the Secretary of Energy and the NRC.
Further, these NPASs are prepared in
consultation with the Director of Central
Intelligence in order to address relevant
classified information. These
assessments also: (1) Analyze whether a
proposed Section 123 agreement is
consistent with the criteria set forth in
the Act, (2) address the adequacy of
safeguards and other control
mechanisms, and (3) include peaceful
use assurances.
NRC Response to Comment Category 17
Regarding the comment that the
SILEX technology is used to separate
silicon and zirconium, SILEX Ltd uses
a laser process to separate silicon and
zirconium isotopes. This technology is
different from the technology used for
uranium isotope separation. The
statement that laser technology could be
adjusted to purify other kinds of
materials such as SNM is speculative.
The NRC is not aware of and the
commenter has not provided any
information to support the assertion that
laser technology could be adopted for
the purification of, for example,
plutonium. However, if new
technologies present proliferation risks
or threats not currently addressed by the
NRC’s comprehensive licensing
framework, the NRC would take
appropriate actions, consistent with its
statutory authority to protect public
health and safety and common defense
and security, to address those risks or
threats.
The NRC disagrees that the NRC
needs to ‘‘pick sides’’ in the debate over
SILEX and that the NRC should require
a nuclear proliferation assessment in the
spirit of the U.S. abandonment of
reprocessing. As discussed in response
to petition Assertion 6, the NRC is an
independent regulatory agency; the NRC
does not encourage or discourage the
development of any particular
technology. Such national policy
decisions are appropriately made by the
President and Congress. For example, in
1976, it was President Carter, not the
NRC, who established as a matter of
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Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules
erowe on DSK2VPTVN1PROD with PROPOSALS-1
policy that the United States would not
engage in nuclear fuel reprocessing
because of concerns about nuclear
proliferation.
The NRC agrees that the petition
mixes technical and licensing issues
that are within the scope of the NRC’s
domestic licensing process with broader
aspects of the U.S. Government’s
nuclear nonproliferation policy. While
the NRC’s comprehensive licensing
framework is adequate to address
proliferation concerns in domestic
licensing, other Executive Branch
agencies have the primary responsibility
to address broader U.S. Government
foreign policy initiatives and
proliferation impacts outside of the
NRC’s domestic licensing activities.
As discussed in response to petition
Assertion 1, the NRC agrees that the
NPAS required under Section 123 of the
AEA is required in the context of a
bilateral agreement negotiated between
the United States and another nation
governing the peaceful use of nuclear
energy. The NPAS does not address the
domestic licensing actions of the NRC.
Comment Category 18: Requiring a
proliferation assessment would be
feasible and would not be overly
burdensome nor significantly impact
licensing timelines.
Two comment letters supporting the
petition included comments in this
category. One commenter stated that a
nuclear proliferation assessment is
feasible and should not be perceived as
overly burdensome to the licensing
process. A commenter stated that GLE
carried out its own proliferation
assessment of the proposed SILEX laser
enrichment facility without creating
delays or jeopardizing classified or
proprietary information. Another
commenter stated that it is highly
doubtful that the addition of a
proliferation assessment requirement
would significantly alter licensees’
timelines.
NRC Response to Comment Category 18
The NRC has determined that
preparation of a nuclear proliferation
assessment is not necessary because it
would not provide meaningful
information beyond that which is
already available to the NRC when
conducting a domestic licensing
proceeding. This determination was
made independent of the time and
resources involved in preparing such an
assessment. This determination was also
made by reviewing the petition, the
public comments, the information
sources available to the NRC related to
the current threat environment, the
existing comprehensive licensing
framework, the division of
VerDate Mar<15>2010
15:07 Jun 05, 2013
Jkt 229001
responsibilities between Federal
agencies, and the NRC’s extensive
experience dealing with domestic and
international nuclear safety security
matters through established
communications channels. Based on
this review, the NRC has determined
that its existing licensing framework is
adequate to address proliferation
concerns. Requiring a separate licenseby-license nuclear proliferation
assessment would not enhance the
NRC’s ability to carry out its statutory
responsibility to protect the public
health and safety and promote the
common defense and security.
Comment Category 19: The Nuclear
Threat Initiative (NTI).
Two comment letters included
comments in this category. Both
commenters stated their support for the
efforts of the NTI (also supported by
former Senators Richard Lugar and Sam
Nunn), which supports the worldwide
safeguarding of all fissile materials that
could be used to do harm to our Nation.
NRC Response to Comment Category 19
Comments advocating support for the
NTI are outside the scope of this
petition because they are unrelated to
the petitioner’s request that the NRC
require its ENR facility license
applicants to perform a nuclear
proliferation assessment. Nonetheless,
the NRC notes that its comprehensive
licensing framework requires the
safeguarding of fissile material in
domestic licensing activities.
V. Determination of Petition
The NRC has reviewed the petition
and the public comments. For the
reasons set forth in this document, the
NRC is denying the petition under 10
CFR 2.803. The NRC disagrees that an
applicant seeking an ENR facility
license should be required to conduct a
nuclear proliferation assessment. The
petitioner has not shown that the NRC’s
comprehensive licensing framework
fails to adequately address proliferation
risks associated with the licensing of an
ENR facility. Additionally, the
petitioner has not shown that ENR
applicants have a particular insight on
proliferation issues or have access to the
intelligence resources, capabilities and
information that would enable them to
prepare a meaningful proliferation
assessment that would assist the NRC in
making an informed licensing decision.
Furthermore, proliferation risks have
and will continue to be assessed and
addressed by the responsible agencies
within the Executive Branch. The NRC
will continue to engage with and
support the Executive Branch agencies
with primary responsibility for
PO 00000
Frm 00014
Fmt 4702
Sfmt 4702
assessing proliferation risks, and will
continue to address proliferation risks
in the NRC’s comprehensive regulations
for physical security, information
security, material control and
accounting, cyber security, and export
control.
Dated at Rockville, Maryland, this 31st day
of May 2013.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2013–13444 Filed 6–5–13; 8:45 am]
BILLING CODE 7590–01–P
DEPARTMENT OF THE TREASURY
Financial Crimes Enforcement Network
31 CFR Part 1010
RIN 1506–AB23
Imposition of Special Measure Against
Liberty Reserve S.A. as a Financial
Institution of Primary Money
Laundering Concern
Financial Crimes Enforcement
Network (FinCEN), Treasury.
ACTION: Notice of proposed rulemaking.
AGENCY:
In a finding, notice of which
was published elsewhere in this issue of
the Federal Register (Notice of Finding),
the Director of FinCEN found that
Liberty Reserve S.A. (Liberty Reserve) is
a financial institution operating outside
of the United States that is of primary
money laundering concern. FinCEN is
issuing this notice of proposed
rulemaking (NPRM) to propose the
imposition of a special measure against
Liberty Reserve.
DATES: Written comments on this NPRM
must be submitted on or before August
5, 2013.
ADDRESSES: You may submit comments,
identified by RIN 1506–AB23, by any of
the following methods:
• Federal E-rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
Include RIN 1506–AB23 in the
submission.
• Mail: The Financial Crimes
Enforcement Network, P.O. Box 39,
Vienna, VA 22183. Include RIN 1506–
AB23 in the body of the text. Please
submit comments by one method only.
• Comments submitted in response to
this NPRM will become a matter of
public record. Therefore, you should
submit only information that you wish
to make publicly available.
Inspection of comments: Public
comments received electronically or
through the U.S. Postal Service sent in
SUMMARY:
E:\FR\FM\06JNP1.SGM
06JNP1
Agencies
[Federal Register Volume 78, Number 109 (Thursday, June 6, 2013)]
[Proposed Rules]
[Pages 33995-34008]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-13444]
========================================================================
Proposed Rules
Federal Register
________________________________________________________________________
This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
========================================================================
Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 /
Proposed Rules
[[Page 33995]]
NUCLEAR REGULATORY COMMISSION
10 CFR Part 70
[Docket No. PRM-70-9; NRC-2010-0372]
Nuclear Proliferation Assessment in Licensing Process for
Enrichment or Reprocessing Facilities
AGENCY: Nuclear Regulatory Commission.
ACTION: Petition for rulemaking; denial.
-----------------------------------------------------------------------
SUMMARY: The U.S. Nuclear Regulatory Commission (NRC) is denying a
petition for rulemaking (PRM), PRM-70-9, submitted by the American
Physical Society (APS or the petitioner). The petitioner requested that
the NRC amend its regulations to require that each applicant for an
enrichment or reprocessing (ENR) facility license include an assessment
of the proliferation risks that construction and operation of the
proposed facility might pose. The NRC is also responding to comments
received from interested members of the public.
DATES: The docket for PRM-70-9 closed on June 6, 2013.
ADDRESSES: Please refer to Docket ID NRC-2010-0372 when contacting the
NRC about the availability of information for this petition. You may
access information related to this petition, which the NRC possesses
and is publicly available, by any of the following methods:
Federal Rulemaking Web site: Go to https://www.regulations.gov and search for Docket ID NRC-2010-0372. Address
questions about NRC dockets to Carol Gallagher; telephone: 301-492-
3668; email: Carol.Gallagher@nrc.gov. For technical questions, contact
the individuals listed in the FOR FURTHER INFORMATION CONTACT section
of this document.
NRC's Agencywide Documents Access and Management System
(ADAMS): You may access publicly-available documents online in the NRC
Library at https://www.nrc.gov/reading-rm/adams.html. To begin the
search, select ``ADAMS Public Documents'' and then select ``Begin Web-
based ADAMS Search.'' For problems with ADAMS, please contact the NRC's
Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-
4737, or by email to pdr.resource@nrc.gov. The ADAMS accession number
for each document referenced in this document (if that document is
available in ADAMS) is provided the first time that a document is
referenced. The incoming petition is available in ADAMS under Accession
No. ML103260300.
NRC's PDR: You may examine and purchase copies of public
documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555
Rockville Pike, Rockville, Maryland 20852.
FOR FURTHER INFORMATION CONTACT: Keith McDaniel, Office of Federal and
State Materials and Environmental Management Programs, U.S. Nuclear
Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-
5252, email: Keith.McDaniel@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Summary of Rationale for Denial
II. Background
III. Petition Assertions and NRC Responses
IV. Public Comments on the Petition and NRC Responses
V. Determination of Petition
I. Summary of Rationale for Denial
The petition requested that the NRC require that each applicant for
an ENR facility license provide an assessment of the proliferation
risks associated with the construction and operation of the proposed
facility. While the NRC recognizes the importance of the petitioner's
concerns about minimizing the risk of nuclear proliferation, the NRC is
denying the petition for rulemaking. The petitioner has not shown that
ENR applicants have a particular insight on proliferation issues or
have access to the intelligence resources, capabilities, and
information that would enable them to prepare a meaningful
proliferation assessment. Therefore, the petitioner has not
demonstrated that requiring an applicant to prepare and include such an
assessment as part of its application would provide the NRC with
meaningful information that would enhance the NRC's decision-making on
the applicant's license application nor would such an assessment assist
the NRC in carrying out its statutory responsibility to protect public
health and safety and promote the common defense. Furthermore, as
discussed more fully later in this document, the NRC's existing
regulatory program and ongoing oversight of applicants and licensees
ensure that they comply with requirements designed to minimize
proliferation risks associated with the construction and operation of
ENR facilities. These requirements include measures to prevent, detect,
and defend against the unauthorized disclosure of ENR technology and
the diversion of associated nuclear materials.
To the extent that the petitioner is concerned about diversion of
nuclear materials (or sabotage) at an NRC-licensed facility, the NRC's
regulations and oversight activities already address these concerns. In
fulfilling its mandate to ensure that the licensing of a facility is
not harmful to the public health and safety and is not inimical to the
common defense and security, the NRC performs detailed examinations,
including inspections, of all aspects of a facility's safeguards and
security measures to ensure compliance with regulatory requirements
that are intended to prevent, detect, and defend against unauthorized
access to the facility and malicious acts directed against the
facility. At the time of initial licensing, the NRC reviews the ENR
license application to ensure that the applicant has developed and will
implement policies, procedures, and programs that enable the applicant
to meet all applicable NRC safety and security requirements. Throughout
the life of the facility, NRC staff implements a robust inspection and
oversight program to ensure that the licensee properly implements all
applicable safety and security policies, procedures, and programs set
forth in its license and is in compliance with all applicable
regulatory requirements. The NRC's regulatory requirements help ensure
that facilities are constructed and operated in accordance with proper
physical security, safeguards measures, and information protection
requirements.
To the extent that the petitioner is concerned about generating
greater foreign interest in new ENR technologies and/or a spread of
sensitive technology to countries of proliferation concern, the
President and
[[Page 33996]]
the Congress have the primary responsibility for developing and
promoting the Federal Government's national nuclear nonproliferation
goals and policies. The U.S. Department of State (DOS), working with
the U.S. Department of Energy (DOE) and other Federal agencies, has the
primary responsibility for implementing these goals and policies
domestically and internationally. These agencies have the necessary
insights on proliferation issues and access to the intelligence
resources, capabilities and information to perform meaningful analyses
of the proliferation risks associated with sensitive technologies,
including sensitive ENR technologies. They routinely work through
diplomatic and other channels to address proliferation concerns outside
of the U.S. In addition to establishing the terms and conditions for
U.S. cooperation with countries that have legitimate nuclear energy and
research programs, these Executive Branch agencies monitor the
international threat environment to ascertain which foreign nations or
sub-national organizations are or may be trying to illicitly obtain or
use sensitive nuclear technologies, including ENR technology, for
proliferation purposes.
The accurate assessment and deterrence of global proliferation risk
requires examination of numerous variables, largely in international
and military arenas that are far afield from the NRC's core domestic
licensing and oversight activities. The NRC interacts regularly with
the Federal agencies that have expertise in these areas and is kept
informed of existing and emerging proliferation threats and activities.
This interaction helps ensure that the NRC's licensing activities are
aligned with the nation's nonproliferation goals and policies. These
agencies routinely bring to the Commission's attention information
pertinent to the NRC's regulatory responsibilities. An NRC domestic
licensing proceeding is not the proper forum for establishing national
nonproliferation policies and objectives. It would be neither prudent
nor useful for the NRC to devote resources in a domestic licensing
proceeding to address national policy objectives that are already being
addressed by the appropriate Federal agencies with the expertise and
mandate to do so.
One of the NRC's primary concerns is to ensure that the facilities
it regulates that manufacture or use enriched uranium and plutonium do
so safely and securely. The NRC's regulations on physical security,
information security, material control and accounting, cyber security,
and export control create a tapestry of protection for the material and
technology at NRC-regulated fuel cycle facilities. These regulations,
which focus on preventing the theft or diversion of radioactive
materials and classified technologies, take proliferation
considerations into account. The petitioner has not demonstrated that
the NRC's current licensing program is deficient.
The U.S. Government is an active member and participant in the
implementation of international treaties and agreements designed to
minimize proliferation risks world-wide, including the Nuclear Non-
Proliferation Treaty, the U.S. Agreement with the International Atomic
Energy Agency (IAEA) regarding the application of safeguards in the
U.S., and the U.S. Additional Protocol to that agreement. The NRC takes
seriously its responsibility to support the U.S. Government's role in
the international nonproliferation regimes to which it is a signatory,
and to implement relevant U.S. Government nonproliferation goals and
policies at NRC licensee sites. However, the changes sought by the
petitioner will not provide the NRC with meaningful information on
proliferation risks that would enhance the NRC's domestic licensing
process or aid the NRC in implementing the U.S. Government's
nonproliferation policies and goals.
In sum, the NRC's existing comprehensive licensing framework, which
includes extensive regulatory requirements and ongoing oversight,
addresses the facility-specific controls that must be implemented
domestically to minimize proliferation risk. The NRC ensures that
proper physical security, national and international safeguards, and
information security measures are applied at all NRC licensee sites.
With insights gained from regular interagency cooperation and
information exchange, the NRC also ensures that its licensing
activities are aligned with the broader national nuclear
nonproliferation policies and goals established by the President and
Congress. The petition does not demonstrate how a license-by-license
nuclear proliferation assessment would lead to the identification of
significantly new or meaningful information beyond that which is
already available and that would enhance NRC decision-making on a
specific license application.
II. Background
On November 10, 2010, the NRC received a PRM filed by Francis
Slakey on behalf of the APS and assigned it Docket No. PRM-70-9. The
NRC published a notice of receipt of the petition and request for
public comment in the Federal Register (FR) on December 23, 2010 (75 FR
246).
The petition requests that the NRC amend part 70 of Title 10 of the
Code of Federal Regulations (10 CFR), ``Domestic Licensing of Special
Nuclear Material,'' to require each applicant for an ENR facility
license in the United States to include a nuclear proliferation
assessment in its application. Specifically, the petition requests that
the NRC's regulations be amended to read:
Sec. 70.22 Contents of applications.
(o) Nuclear proliferation assessment. Each applicant for the
license of an enrichment or reprocessing facility shall include an
assessment of the proliferation risks that construction and
operation of the proposed facility might pose.
The following section contains a summary of the petition assertions
and NRC responses.
III. Petition Assertions and NRC Responses
Assertion 1
The petition asserted that performing a nuclear proliferation
assessment would be consistent with the NRC's requirement to evaluate
whether issuance of a license ``would be inimical to the common defense
and security or to the health and safety of the public.'' The petition
further asserted that it does not presume to know the best method for
implementing the proposed rule change and makes the following two
comments for NRC staff consideration:
General Electric-Hitachi Global Laser Enrichment LLC (GLE)
carried out an independent nuclear proliferation assessment of its
laser enrichment facility without: (1) Jeopardizing any classified or
proprietary information, (2) delaying the timeline, or (3) adding
substantially to the cost of the project. Under the APS proposed rule
change, all ENR license applicants would be required to carry out such
an assessment and submit it to the NRC staff for review.
The term ``Nuclear Proliferation Assessment [Statement]''
(NPAS) is used in the Atomic Energy Act (AEA) of 1954, as amended,
under Section 123, in the context of U.S. agreements for cooperation
with a foreign nation. The NRC participates in these assessments with
other Federal entities, in the manner described in Section 123. In
particular, the NRC has already engaged in the preparation and review
of an NPAS for an enrichment technology. In 1999, the NRC participated
with other Federal entities in the NPAS that supported the decision to
allow the Separation of Isotopes by Laser
[[Page 33997]]
Excitation (``SILEX'') technology to be transferred from Australia to
the United States. Similarly, under the APS proposed rule change, the
NRC staff could work with other Federal entities in reviewing the
nuclear proliferation assessment provided by the license applicant.
NRC Response to Assertion 1
The NRC disagrees with the petitioner that an applicant seeking an
ENR facility license from the NRC is the appropriate entity to conduct
a nuclear proliferation assessment. A commercial entity would not have
access to the intelligence resources, capabilities, and information
essential to compiling a meaningful nuclear proliferation assessment.
An assessment based solely on information available to a commercial
entity would be of little value to the NRC in assessing the
proliferation risks associated with licensing a particular facility.
The task of assessing proliferation risks is best performed by the
Federal Government. Other Federal agencies, led by the DOS and
including the DOE, the U.S. Department of Defense (DOD), and the U.S.
Department of Commerce (DOC), have primary responsibility for
implementing national nonproliferation policies and goals and
conducting proliferation assessments of sensitive technologies,
including nuclear technologies. The NRC routinely interacts with and
provides its technical expertise and support to these agencies.
Once a foreign-developed ENR technology has advanced to the point
where an applicant is seeking an NRC license, the appropriate U.S.
Government agencies have already made a favorable determination that
the technology in question can be adequately protected for development
and production within the U.S. For example, the SILEX technology was
imported into the U.S. under the terms of an agreement negotiated
between the governments of the U.S. and Australia under Section 123 of
the AEA (123 Agreement). This agreement allows for the sharing of
Restricted Data (ENR technology) between the U.S. and Australia. This
Agreement, negotiated by the DOS and approved by the President,
included the required NPAS for the SILEX technology.
Under Section 123 of the AEA, the Federal Government prepares an
NPAS to demonstrate that the terms of a bilateral agreement are
consistent with the requirements of the AEA, with particular emphasis
on the adequacy of safeguards and other control mechanisms for the
protection of nuclear technologies and materials, and that U.S.
assistance provided under the bilateral agreement will not be used by
the recipient country to further any military or nuclear explosive
purpose. Under Section 123, the DOS is responsible for preparing an
NPAS, with technical assistance from other Federal agencies including
the NRC. However, Section 123 does not apply to or address license
applications submitted to the NRC utilizing a domestically developed
ENR technology.
The ENR technology that is solely developed in the U.S. is subject
to the requirements set forth in Section 151c of the AEA. Section 151c
requires that any person in the United States who makes any invention
or discovery useful in the production or utilization of special nuclear
material (SNM) must make a report of such invention or discovery to the
DOE. This report need not be made if an application has been filed with
the U.S. Patent and Trademark Office. Consistent with the guidance set
forth in Atomic Energy Commission's ``Novel Methods of Isotope
Separation: Procedures for Reports on Research'' (37 FR 15393; August
1, 1972), upon receipt of the report, the DOE will provide the person
with appropriate guidance on the proper classification of information,
components, technology or other matter related to the invention or
discovery. If the DOE determines that any of this information,
components, technology or other matter is Restricted Data, the person
would be directed to protect it in accordance with the requirements set
forth in Sections 141 through 143 and Sections 224 through 227 of the
AEA. The NRC expects that any sensitive information, components and
technology associated with an ENR technology developed in the United
States would be subject to these requirements. Furthermore, the NRC is
confident that these restrictions on the possession, use and
dissemination of Restricted Data adequately address the proliferation
risks associated with a domestically developed ENR technology.
Therefore, the NRC is also confident that information on a domestically
developed ENR technology is adequately protected and proliferation
risks associated with a particular ENR technology have already been
assessed by the U.S. Government prior to an NRC licensing proceeding.
If an applicant receives a license for a facility utilizing a
domestically developed ENR technology, that facility would be subject
to the NRC's comprehensive regulatory framework.
Consistent with its statutory authorities under the AEA, the
Commission will not issue a license for an ENR facility if it
determines that such a facility would constitute an unreasonable risk
to the health and safety of the public or would be inimical to the
common defense and security. The AEA does not require a nuclear
proliferation assessment as a prerequisite to the domestic licensing of
an ENR facility. However, as explained more fully in response to
petition Assertion 2, the NRC's existing comprehensive licensing
framework adequately addresses proliferation risks and concerns
associated with access to ENR technology and construction and operation
of an ENR facility in the U.S. This framework ensures that access to
NRC-licensed ENR facilities and technology is properly controlled
through appropriate physical protection, personnel security, and
information protection requirements. Furthermore, the NRC, through its
ongoing interaction with other Federal agencies, ensures that its
licensing framework and oversight activities are aligned with national
nonproliferation policies and objectives.
The petitioner pointed out that GLE performed an independent
nuclear proliferation assessment of its laser enrichment facility. The
NRC notes that this assessment was performed for GLE's own corporate
purposes and not in response to an NRC licensing requirement. The GLE
did not submit the assessment as part of its application and the NRC
did not consider this assessment as part of its licensing review of the
proposed GLE facility.
The independent proliferation assessment performed by GLE is
separate and distinct from the NPAS performed pursuant to the Section
123 agreement between the U.S. Government and the Government of
Australia. This NPAS was prepared by the DOS and supported the decision
to allow the SILEX technology to be transferred from Australia to the
United States. Thus, the proliferation risks associated with the SILEX
technology had already been considered by the Executive Branch prior to
GLE submitting a license application to the NRC.
To the extent that the petition is concerned about developing and
promoting global implementation of U.S. nonproliferation policies and
goals, the DOS, with the assistance of other Federal agencies within
the Executive Branch, has primary responsibility, expertise and
dedicated resources for leading such efforts. These agencies regularly
assess the international threat environment to ascertain which foreign
nations or sub-national organizations are or may be trying to obtain or
use ENR technology for proliferation
[[Page 33998]]
purposes and work through diplomatic and other channels to deter such
efforts. An NRC domestic licensing proceeding is not the proper forum
for establishing national nonproliferation policies and objectives.
Furthermore, the petitioner has failed to demonstrate how a license-by-
license nuclear proliferation assessment prepared by an applicant with
far less relevant proliferation information available to it than either
the NRC or the Executive branch, would assist the NRC in carrying out
its statutory responsibility to protect public health and safety and to
promote common defense and security when licensing an ENR facility.
One of the NRC's primary concerns is to ensure that the facilities
it regulates that manufacture or use enriched uranium and plutonium do
so safely and securely. The NRC's regulations on physical security,
information security, material control and accounting, cyber security,
and export control create a tapestry of protection for the material and
technology at NRC-regulated fuel cycle facilities. These regulations,
which focus on preventing the theft or diversion of radioactive
materials and classified technologies, take proliferation
considerations into account. The petitioner has not demonstrated that
the NRC's current licensing program is deficient.
Assertion 2
The petition asserted that the NRC's current licensing process is
insufficient to address proliferation concerns. The petition stated
that the current licensing process uses a ``net effect'' in which
proliferation-relevant issues are spread across the license application
and never synthesized. Therefore, nonproliferation is not given an
adequate level of attention, because the NRC does not require a nuclear
proliferation assessment as a part of its licensing process for ENR
facilities. Consequently, the petition claimed that the current process
may overlook some properties of the technology which merit attention in
a proliferation context.
In addition, the petition stated that key questions regarding the
degree of proliferation risk of an ENR technology could go unaddressed
under the NRC's ``net effect'' approach. According to the petitioner,
such questions include, but would not be limited to, the following:
Could the design of the technology be altered easily to
allow for diversion of nuclear material?
Could the facility be constructed and operated in a manner
that is undetectable?
Are there unique components of the technology whose
acquisition would indicate the construction of such a facility and
could be easily tracked?
NRC Response to Assertion 2
The NRC disagrees that its current approach to licensing ENR
facilities is insufficient. Safety and security, including
proliferation risks, are adequately addressed by the NRC's
comprehensive licensing framework, which includes: (1) Extensive
regulatory requirements, (2) ongoing oversight, and (3) active Federal
interagency cooperation. Each piece of this framework is described in
the following paragraphs.
With regard to the NRC's extensive regulatory requirements, ENR
licensees must comply with applicable requirements in 10 CFR parts 25,
30, 40, 50, 70, 73, 74, 95, and 110. Part 30 of 10 CFR, ``Rules of
General Applicability to Domestic Licensing of Byproduct Material;'' 10
CFR part 40, ``Domestic Licensing of Source Material;'' 10 CFR part 50,
``Domestic Licensing of Production and Utilization Facilities;'' and 10
CFR part 70, ``Domestic Licensing of Special Nuclear Material;''
address the domestic licensing of byproduct material, source material,
reprocessing facilities, and facilities that handle SNM, respectively.
Regulations under 10 CFR part 73, ``Physical Protection of Plants
and Materials,'' prescribe requirements for the establishment and
maintenance of a physical protection system to protect SNM at fixed
sites and in transit, and to protect plants where SNM is used. These
regulations provide requirements to protect against radiological
sabotage and prevent the theft and diversion of SNM. For example, 10
CFR 73.67 and 73.71 include physical protection requirements for SNM of
moderate and low strategic significance and reporting requirements for
safeguards events. In addition, 10 CFR 73.73 and 73.74 include
requirements for advance notice and protection of export and import
shipments of specified materials. Further, appendix B to 10 CFR part 73
contains the Criteria for Security Personnel (training) for these types
of facilities and appendix C to 10 CFR part 73 includes detailed
requirements for a safeguards contingency plan.
Regulations under 10 CFR part 74, ``Material Control and Accounting
of Special Nuclear Material,'' include requirements for the control and
accounting of SNM at fixed sites and for documenting the transfer of
SNM. For example, general performance objectives in 10 CFR 74.31,
74.41, and 74.51 address material control and accounting (MC&A)
requirements for SNM of low, moderate, and strategic significance. To
meet these objectives, licensees must have a Fundamental Nuclear
Material Control Plan that includes, for example, a measurement control
program, physical inventories, and the ability to aide in or conduct
investigations of SNM losses. Additionally, 10 CFR 74.33 requires
licensees authorized to possess equipment capable of enriching uranium
or operating an enrichment facility, and producing, or possessing a
specified amount of SNM, to have an MC&A system that will protect
against and detect unauthorized production of SNM. Finally, 10 CFR
74.11 includes requirements for licensees that possess specified
quantities to report loss, theft or attempted theft or unauthorized
production of SNM to the NRC. By requiring capabilities to measure,
control, detect, and report the loss, theft or attempted theft or
unauthorized production of SNM, these regulations address nuclear
proliferation risks and the concern stated in the petition's first
question (``Could the design of the technology be altered easily to
allow for diversion of nuclear material?'').
The requirements in 10 CFR part 95, ``Facility Security Clearance
and Safeguarding of National Security Information and Restricted
Data,'' and 10 CFR part 25, ``Access Authorization,'' require licensees
to maintain programs for protecting and preventing unauthorized access
to classified National Security Information, Restricted Data, and
associated classified technology. These requirements are designed to
restrict access to nuclear technology to only those with a need-to-know
and ensure that adequate controls exist to protect and handle such
information through physical protective measures, information security
requirements, and administrative security controls. The NRC
requirements address the actual and postulated threats against
facilities and the sensitive information they possess. These
regulations are part of the NRC's extensive effort to address
proliferation risks and concerns by ensuring that only authorized
individuals have access to classified information and technologies, and
they are legally obligated to protect it from unauthorized disclosure.
In addition, 10 CFR part 110, ``Export and Import of Nuclear
Equipment and Material,'' includes requirements for controlling the
export and import of nuclear materials and equipment by NRC or
Agreement State licensees. Export license reviews address proliferation
concerns by requiring the U.S. Government to obtain assurances from the
recipient foreign government that, among other things: (1) IAEA
[[Page 33999]]
safeguards will be applied as required by Article III (2) of the Treaty
on the Nonproliferation of Nuclear Weapons; (2) adequate physical
security measures will be maintained; and (3) the material being
exported will not be transferred to another country without prior U.S.
Government approval. Domestic importers of nuclear materials are
required to be licensed by the NRC or an Agreement State to possess the
material before they are allowed to import the material into the U.S.
By controlling import and export of nuclear materials and equipment,
these requirements address proliferation risks and concerns.
``Ongoing oversight'' refers to the NRC's inspection of licensee
and applicant facilities, to enforce compliance with NRC regulatory
requirements. If any regulatory concerns are identified during these
inspections, licensees may be required to take corrective actions,
including implementing compensatory measures as appropriate, to address
these concerns.
For example, the NRC staff conducts annual inspections of all
enrichment licensees and their contractors to ensure compliance with 10
CFR part 25 and 95 requirements. The DOE, under a reimbursable
agreement with the NRC, participates in these inspections, certifying
and accrediting on behalf of the NRC all classified computer networks
used by enrichment licensees and their contractors. If security risks
are identified during these inspections, the licensee must take steps
to correct the security risk. Additionally, if these inspections
identify generic risks applicable to all licensees, the NRC will
supplement its regulations and/or issue orders addressing these risks,
as appropriate.
The term ``active interagency cooperation'' refers to the NRC's
ongoing contact and active collaboration with other government agencies
to assist in meeting the U.S. Government's broader national nuclear
nonproliferation goals and policies. The NRC interacts continuously
with other Federal agencies at a variety of levels to share information
related to various threats and activities, including those related to
proliferation concerns, inside and outside the U.S.
The President and the Congress have the primary responsibility for
developing and promoting the Federal Government's national nuclear
nonproliferation goals and policies. The DOS, working with the DOE and
other Federal agencies, has the primary responsibility for implementing
those goals and policies both domestically and internationally. The NRC
actively cooperates with the DOS, the DOE, and other Federal agencies
including, but not limited to, the DOC, the DOD, the U.S. Department of
Homeland Security, the Federal Bureau of Investigation, and the various
intelligence agencies in this process. Through this cooperation, the
NRC ensures that its licensing activities are aligned with the Nation's
nonproliferation goals and policies.
In addition to these cooperative activities, the NRC also
collaborates with representatives of other U.S. Government agencies in
various multilateral and bilateral initiatives to promote nuclear
safety and security. For example, with respect to exports, the NRC
actively supports U.S. Government participation in the Nuclear
Suppliers Group (NSG). The NSG is a group of nuclear supplier states
that seeks to prevent the proliferation of nuclear weapons through the
implementation of two sets of guidelines for nuclear exports and
nuclear related exports. The NSG guidelines are: (1) Guidelines for the
Export of Nuclear Material, Equipment and Technology (INFCIRC/254/
Rev.10/Part1); and (2) Guidelines for Transfers of Nuclear Related
Dual-Use Equipment, Materials, Software and Related Technology
(INFCIRC/254/Rev.7/Part2).
The NSG guidelines aim to ensure that nuclear trade for peaceful
purposes does not contribute to the proliferation of nuclear weapons or
other nuclear explosive devices, and that the international trade and
cooperation in the nuclear field is not hindered unjustly in the
process. The NRC is responsible for implementing the NSG Part 1
guidelines, consistent with its authority under the AEA, in 10 CFR part
110. The DOC implements the NSG Part 2 guidelines in its Export
Administration Regulations. The NRC's export licensing criteria are
consistent with, and in some instances more comprehensive than, the NSG
Part 1 guidelines. Part 1 of the NSG guidelines contains a ``Trigger
List'' that is illustrative of commodities ``especially designed or
prepared'' for the processing, use, or production of special
fissionable material. In addition to the export licensing criteria that
must be met, 10 CFR part 110 also incorporates Part 1 by essentially
reproducing the Trigger List in several appendices to part 110. While
10 CFR part 110 is maintained and updated to be consistent with the NSG
guidelines, the appendices to 10 CFR part 110 are illustrative because
the NRC has long recognized that the type of nuclear technologies and
equipment that need to be controlled for proliferation purposes is
dynamic and will continue to evolve. The NRC's 10 CFR part 110
regulations, and ongoing interaction with the DOC and other Federal
agencies, ensure that the NRC has access to and considers relevant
information on ENR technologies. This information exchange with other
U.S. Government agencies and multilateral organizations such as the
NSG, addresses the concerns raised in the petitioner's third question:
``Are there unique components of the technology whose acquisition would
indicate the construction of such a facility and could be easily
tracked?''
The NRC also works closely with the DOE to ensure classified
information is protected. The DOE requirements for protection of
classified material are generally reflected in NEI 08-11, ``Information
Security Program Guidelines For Protection Of Classified Material At
Uranium Enrichment Facilities,'' published by the Nuclear Energy
Institute (NEI). In addition to complying with the NRC's requirements
for the protection of classified material, all the NRC's enrichment
licensees and their contractors that possess classified material have
voluntarily committed to adhere to additional information security
measures in NEI 08-11. These measures are contained in each licensee's
Standard Practice Procedures Plan (security plan), which is approved by
the NRC as part of the issuance of a facility security clearance prior
to facility operation.
Finally, the petition's second question stated that the NRC's ``net
effect'' may not address the question ``could the facility be
constructed and operated in a manner that is undetectable?'' As
described further in response to petition Assertion 4, the NRC is not
aware of any new ENR technologies that would be too small or too
efficient to detect. The NRC has determined that existing requirements
and controls minimize the risk of proliferation by, for example,
protecting against unauthorized access and disclosure, as well as theft
and diversion of nuclear materials and equipment. Additionally, the NRC
expects that future technologies and facilities, such as the one
proposed by GLE, will emit unique environmental signatures that will
enable identification of a specific nuclear facility.
Therefore, for the reasons previously explained, the NRC has
determined that the multiple layers of its comprehensive licensing
framework adequately address proliferation risks and concerns
associated with the NRC licensing of domestic ENR facilities. Separate
from the license application reviews, the NRC continuously reviews the
domestic and international threat environment for
[[Page 34000]]
changes that pose credible and specific threats to the NRC or its
licensees. As new threats are identified, the NRC will supplement its
requirements by rule or order, as appropriate, and consistent with its
statutory authority to protect the public health and safety and to
promote the common defense and security of the United States.
Assertion 3
The petition asserted that the requested rule change is in the
national security and energy interests of the U.S., and that energy
security, national security and nonproliferation are coupled. The
petition stated its support for nuclear power, but emphasizes that
nuclear power and nuclear materials must be deployed in a safe, secure,
and responsible manner.
NRC Response to Assertion 3
The NRC agrees that nuclear power and nuclear materials must be
developed and utilized in a safe, secure and responsible manner.
Furthermore, the NRC agrees that the security of the Nation's energy
supply and reducing proliferation risks are related to the national
security of the U.S. As previously explained in the response to
petition Assertion 2, the NRC's comprehensive licensing framework
adequately addresses proliferation concerns associated with the
construction and operation of an ENR facility in the United States. The
petitioner fails to demonstrate that the NRC's licensing framework does
not adequately protect the public health and safety and promote the
common defense and security of the U.S.
Assertion 4
The petition asserted that, over the next several years, the NRC
will be reviewing license applications for new technologies that could
carry substantial proliferation risks. This assertion is based on
findings in a report entitled ``Technical Steps to Support Nuclear
Arsenal Downsizing,'' released on February 18, 2010, by an APS Study
Group, ``APS Panel on Public Affairs'' (see https://www.aps.org/link/downsizing.cfm). The petition stated that the membership of this APS
Study Group comprises some of the country's leading experts on both the
technical and policy issues related to nuclear power, nuclear weapons,
and proliferation.
The petition asserted that the APS Study Group found that some of
the new technologies could be proliferation ``game changers,'' since
they would lead to smaller, more efficient, and possibly less expensive
methods for the production and use of nuclear materials that would be
more difficult to detect. The APS Study Group cited laser isotope
separation as an example of a new technology that is substantially
smaller and more energy efficient than centrifuge enrichment
technology. Consequently, the petition stated that this technology has
raised proliferation concerns. The petition stated that the IAEA is
sufficiently concerned that existing detection technologies are not
adequate to address detection of covert facilities, and that the IAEA
established a division specifically tasked with improving detection
technology. The petition also stated that the DOE has a similar program
tasked with carrying out research and development to improve detection
technology, with one effort dedicated to detecting laser enrichment.
NRC Response to Assertion 4
The NRC acknowledges that new technologies may pose proliferation
risks. However, the NRC is not aware of any existing ENR technologies
that cannot be detected or pose proliferation risks that are not
addressed by the NRC's existing licensing framework. Similarly, the NRC
is not aware of, and the petition did not identify, any new
technologies that would be ``game changers'' because they would be less
expensive, too small, or too efficient to detect.
For example, on September 25, 2012, the NRC issued a license for
the GLE facility in Wilmington, North Carolina. The GLE has stated that
its laser enrichment facility will be more efficient and cost-effective
than a comparably sized gas centrifuge plant. That facility will not,
however, be small or difficult to detect. Rather, the GLE facility's
energy consumption will be similar to that of a gas centrifuge facility
and the facility's size will be only one-third to one-half smaller than
that of a gas centrifuge facility. The proposed facility will need
nearly 100 acres, its main operations building will have an area of
approximately 600,000 square feet, and there will be sections
approximately 160 feet high. Additionally, the NRC expects that
technologies and facilities, such as the one proposed by GLE, will emit
unique environmental signatures that will enable identification of a
specific nuclear facility.
The NRC recognizes that the IAEA and the DOE are developing new
detection methods for clandestine facilities and that these
technologies will be important in international efforts to combat
nuclear proliferation. The NRC staff will use information related to
new detection technologies from these IAEA and DOE programs as
appropriate in its licensing programs.
The NRC continues to coordinate with other Federal agencies to
assess the threat environment and work with licensees and the nuclear
industry to develop appropriate strategies and requirements to address
identified threats. Should the NRC identify new threats or unique
proliferation risks that are not currently addressed by its licensing
framework, the NRC will take appropriate steps (e.g., issuance of
orders or revised regulations) to address those risks.
Assertion 5
The petition asserted that the NRC can address new risks by
elevating the priority of nonproliferation, which could best be
accomplished by including a nuclear proliferation assessment in the ENR
licensing process. The petition stated that members of the U.S. House
of Representatives' Nuclear Security Caucus reached a similar
conclusion in a letter dated June 30, 2010, which they sent to the
Commission (ADAMS Accession No. ML101870023). In this letter, the
members of the Nuclear Security Caucus discussed the proliferation
paths associated with enrichment programs, such as the theft at the
URENCO facility in the Netherlands. Specifically, the members noted
that the ``uncovering of A.Q. Khan's clandestine proliferation networks
has taught us that we can never be too careful in protecting nuclear
materials and technologies.'' The members concluded that while a formal
assessment of the proliferation risks of the technology will not ensure
that nuclear technologies are not diverted to weapons production or
other military purposes, nuclear proliferation assessments can provide
an additional and perhaps crucial layer of protection against their
proliferation and use against the U.S.
NRC Response to Assertion 5
The NRC agrees that the U.S. must remain vigilant in protecting
nuclear materials and technologies. The NRC is committed to protecting
public health and safety and promoting the common defense and security.
Protecting the Nation's nuclear facilities and materials is a priority
of the NRC that is articulated in the NRC's mission statement and is
one of the two strategic goals identified in the NRC's Strategic Plan.
As described in response to petition Assertion 2, the NRC's regulatory
requirements and programs, and ongoing interagency cooperation,
[[Page 34001]]
adequately address existing proliferation risks and concerns. The NRC
is not aware of any new information that would lead the NRC to conclude
that its licensing framework does not adequately protect the public
health and safety and the common defense and security.
Furthermore, the NRC's licensing framework is flexible and
adaptable; the NRC continually assesses the threat environment and
coordinates with its Federal partners, including the DOS, DOE, and DOC.
Should the NRC identify new risks that are not addressed by its
licensing framework, the NRC would take appropriate steps to address
these risks. Accordingly, the NRC disagrees that the best way to
address proliferation concerns is to require an ENR applicant to submit
a proliferation assessment.
Assertion 6
The petition asserted that the successful commercialization of ENR
technologies may itself stimulate the interests of proliferants.
NRC Response to Assertion 6
The NRC's licensing responsibilities under the AEA are regulatory
in nature; the NRC does not encourage or discourage the development of
a particular technology. Moreover, it is not the NRC's role, nor is it
within the NRC's capabilities, to restrict inquiry into the feasibility
of scientific concepts associated with the nuclear fuel cycle. Whether
or not the issuance of an NRC license may demonstrate that a technology
is feasible or commercially viable is not a consideration in the NRC
licensing process.
When a license application is received, the NRC reviews the
application and makes a licensing determination consistent with its
statutory responsibility to protect the public health and safety and
promote the common defense and security. As described in response to
petition Assertion 2, the NRC has determined that its licensing
framework enables it to meet these responsibilities. However, should
the NRC identify new risks or threats, it would supplement this
framework consistent with its statutory responsibility, as appropriate.
IV. Public Comments on the Petition and NRC Responses
The notice of receipt of the PRM invited interested persons to
submit comments. The public comment period closed on March 8, 2011. The
NRC received responses from 2,389 commenters. Most of these responses
were identical form emails from individuals who supported the petition.
There were also 50 comment letters from individuals, members of
Congress, and interested groups that supported the petition. Two
comment letters, one from a nuclear industry representative and one
from an individual, opposed the petition.
Combining similar public comments resulted in 19 comment
categories. A summary of the comments and the NRC's responses follows.
Comment Category 1: NRC's authority and obligation to require a
nuclear proliferation assessment as part of the licensing process.
The petition and 42 comment letters included statements related to
this category. The petition requested that the NRC include nuclear
proliferation assessments as part of the domestic licensing process,
stating that such an assessment is consistent with the NRC's
requirement to evaluate whether the issuance of a license ``would be
inimical to the common defense and security or to the health and safety
of the public.'' Forty-one commenters stated either that the NRC has
the authority or that the NRC has the obligation to require its
applicants to perform a nuclear proliferation assessment. One commenter
added that it is within the capabilities of the NRC staff to review
such an assessment. One commenter stated that the Congress is reviewing
the AEA and is currently discussing whether to include a nuclear
proliferation assessment in the NRC's regulatory process. One commenter
asserted that the AEA contains no requirement for the NRC to perform a
nuclear proliferation assessment in the context of domestic licensing.
NRC Response to Comment Category 1
As discussed in the response to petition Assertion 2, the NRC has
determined that its licensing framework adequately addresses
proliferation concerns associated with the licensing of ENR facilities
and that requiring such an assessment would not assist the NRC in
carrying out its statutory responsibility to protect public health and
safety and promote the common defense. If the NRC finds supplementation
of its requirements is needed, it will take appropriate action,
consistent with its statutory responsibility.
Comment Category 2: Energy security, national security and
nonproliferation are coupled.
One commenter stated that there is a direct relationship between
fuel for nuclear energy and nuclear weapons proliferation, because
uranium enrichment provides fuel for nuclear power and the material for
making a nuclear bomb.
NRC Response to Comment Category 2
The NRC acknowledges that uranium enrichment provides fuel for
nuclear power reactors. However, the NRC disagrees that fuels for
nuclear energy and nuclear weapons proliferation have a direct
relationship. The NRC-licensed nuclear power plants do not use weapons-
grade SNM, and any NRC-issued commercial enrichment license would not
authorize the production of weapons-grade SNM. In addition, the NRC has
an inspection program that ensures that enrichment facilities are not
modified to produce weapons-grade SNM.
Comment Category 3: New nuclear technologies may present unique
proliferation risks.
Thirty-five comment letters made statements related to this
category. The petition stated that over the next several years, the NRC
will be reviewing license applications for new technologies that could
carry substantial proliferation risks. Twenty-two commenters made a
similar comment. Nineteen commenters agreed with the petition's
statement that new technologies could be proliferation ``game
changers,'' since they would lead to smaller, more efficient, and less
expensive technology for the production and use of nuclear materials
that would be more difficult to detect.
Additionally, one commenter requested that the NRC conduct a
thorough review of all technology involved in the laser enrichment
project to identify the technologies or components that are most
proliferation-prone or that would be hardest to acquire by other
countries or would-be proliferators. Another commenter asserted that
new proliferation risks from laser enrichment methods are not very
amenable to the ``black box'' technique (exporting technology in a
``black box'' to protect proprietary and proliferation secrets),
stating that this method is currently used to export technology from
enrichment and reprocessing plants.
NRC Response to Comment Category 3
The NRC acknowledges that new enrichment technologies may pose
proliferation risks, and therefore facilities using such technology
must be subject to a comprehensive regulatory regime to ensure the
safety and security of that technology. However, as noted in response
to petition Assertion 2, the NRC has a comprehensive licensing
framework designed to ensure that ENR facilities are operated in a safe
and secure manner. Further, as noted in
[[Page 34002]]
response to petition Assertion 4, the NRC is not aware of, and the
petitioner and commenters have not identified, any new ENR technologies
that ``are game changers'' because they are too small, efficient, or
inexpensive to detect.
As described in response to petition Assertion 2, the NRC also
participates with other U.S. Government agencies in various
organizations such as the NSG, which seek to prevent the proliferation
of nuclear weapons through the implementation of two comprehensive
export control lists. The DOE, DOC, and DOS respectively regulate
exports of nuclear reactors and fuel cycle technologies, dual-use
components and technologies, and U.S. Munitions Lists commodities to
ensure peaceful use and to prevent the proliferation of nuclear
weapons. The NRC licensees are required to comply not only with NRC
regulations but all relevant Federal laws and regulations.
The ``black box'' concept mentioned by one commenter is a mechanism
that can be used to control access to information and/or technology by
ensuring that only individuals with a verified need-to-know and
appropriate clearance are given access to it. The black box concept is
consistent with the NRC's protective measures for restricting access to
sensitive and classified technologies and/or information. The NRC's
regulations governing access to such technologies and information
implement Federal Government standards and requirements for the
protection of sensitive and classified technologies and/or information.
Although the ``black box'' concept provides a supplemental means to
protect classified information and/or technology, its use may not
supersede NRC regulatory requirements.
Comment Category 4: Commercialization of enrichment technology may
increase interest, which could result in increased proliferation risks.
Even a non-commercially viable process can pose proliferation risks, if
the process is successfully implemented.
Twenty-one comment letters made statements related to this
category. The petition asserted that commercialization of the
technology may itself stimulate proliferation interests. Sixteen
commenters agreed with the petitioner. A commenter stated that
successful development of a commercially viable process is irrelevant,
because even inefficient pilot-scale facilities can pose significant
proliferation risks. Another commenter stated that feasibility, not
commercial viability, is the key determinant of proliferation risks.
Finally, a commenter asserted that GLE's operation of a test loop, and
potential move to a larger facility would be a clear signal that the
technology works, thus attracting interest in it.
NRC Response to Comment Category 4
As explained in response to petition Assertion 6, the NRC's
licensing responsibilities are regulatory in nature. The NRC, as an
independent regulatory agency, does not encourage or discourage the
development of a particular technology. In addition, it is not the
NRC's role, nor is it within the NRC's capabilities, to restrict
inquiry into scientific concepts associated with the nuclear fuel
cycle. A concern that the issuance of an NRC license may demonstrate
that a technology is feasible or commercially viable is not a
consideration in the NRC licensing process. When evaluating a license
application, the NRC's role is to determine if the applicant has
satisfied NRC licensing requirements, including demonstrating that a
proposed facility would not constitute an unreasonable risk to the
health and safety of the public or would not be inimical to the common
defense and security. If the NRC determines that an applicant has
failed to satisfy NRC licensing requirements, including demonstrating
that the facility or technology could not be operated in such a manner,
the NRC would deny the license application.
To the extent that the commenters are concerned that the issuance
of a license or the successful operation of a new enrichment technology
may increase international interest in that technology, as explained in
response to petition Assertion 2, the NRC's extensive regulatory
requirements, ongoing NRC oversight, and other Federal programs ensure
that classified design details of the technology are protected from
potential proliferators.
Comment Category 5: Sufficiency of the current regulatory process
to address nuclear proliferation issues.
Fourteen comment letters included statements related to this
category. Twelve commenters supported petition Assertion 2 that the
current regulatory process is insufficient to address nuclear
proliferation issues, while two commenters took the opposing view.
One commenter supporting the petition stated that a regulatory gap
exists in the NRC's regulations that would be filled by requiring a
nuclear proliferation assessment in domestic licensing. The commenter
claimed that the gap in the current domestic licensing framework
restricts consideration of proliferation issues to the narrow questions
of whether or not a facility meets the NRC's regulations for material
protection, control and accounting, and protection of sensitive
information. The commenter stated that such a limited review does not
take into account broader issues related to the indirect impacts of NRC
licensing of sensitive fuel cycle facilities on the global
nonproliferation regime.
Another commenter supporting the petition stated that the current
regulatory process for assessing proliferation is defective in that it
does not provide an integrated risk assessment of this potential but is
instead less focused and therefore less definitive than it needs to be
to fulfill the NRC's ``common defense and security'' mission. One
commenter stated that requiring a nuclear proliferation assessment for
domestic licensing would encourage awareness of proliferation concerns
in commercial entities that could be translated into design features
that improve the proliferation resistance of future facilities. A
commenter stated that when considering proliferation concerns of a
pending NRC license application, the NRC should seek the views of other
government agencies responsible for providing for the common defense,
and that the NRC have staff capable of formally assessing these views.
One commenter mentioned that currently no one is conducting a nuclear
proliferation assessment of nuclear technology. Similarly, another
commenter stated that while a nuclear proliferation assessment alone
will not curtail proliferation, it can provide an added layer of
protection that can help restrict the covert spread of advanced nuclear
fuel technologies.
One commenter stated that whether new ENR technologies would
significantly increase the risk of proliferation depends on many
factors, including: (1) The probability of detecting a clandestine
facility; (2) whether a declared facility can be effectively
safeguarded; (3) whether technology can be used in the production of
highly-enriched uranium (relevant for enrichment technologies only);
and (4) whether the intellectual property for technology that the NRC
chooses not to license would revert to a foreign entity for development
instead. The commenter asserted that, due to the technical nature of
these factors, the NRC is the most qualified body to conduct a
proliferation assessment and should require a nuclear proliferation
assessment as part of its domestic licensing process.
One commenter supporting the petition stated that because so few
facilities are actually selected for safeguards by the IAEA in the
U.S.,
[[Page 34003]]
there is less awareness here among industry and operators than abroad.
One commenter opposing the petition stated that although the
petitioner rightly invokes elements of the AEA that speak to licensing
activities that ``would be inimical to the common defense and security
or to the health and safety of the public,'' the petition fails to
indicate what current shortfalls there are in licensees' obligations
regarding information protection or physical protection of such
facilities.
NRC Response to Comment Category 5
Commenters claim the NRC's existing regulatory framework is not
sufficient for several reasons, including: (1) No one is conducting a
nuclear proliferation assessment of nuclear technology risks, (2) there
is a regulatory gap because the NRC's consideration of proliferation
risks is too narrow, and (3) the NRC's process fails to include an
integrated risk assessment. The NRC disagrees with these comments. As
explained in response to petition Assertion 2, the NRC's existing
comprehensive licensing framework adequately addresses proliferation
risks by, for example, including requirements to prevent unauthorized
disclosure of classified matter and technology, and provide physical
protection of nuclear equipment and materials.
The commenters have not identified a regulatory gap or
proliferation concern that is not adequately addressed in the current
licensing framework. The NRC is not aware of, and the petitioner and
commenters did not identify, any specific shortcomings in the NRC's
comprehensive licensing framework where a nuclear proliferation
assessment by license applicants would provide significant and
meaningful information that would enhance NRC decision-making or
provide an ``additional layer of protection'' against proliferation
risks necessary for the NRC to carry out its responsibilities.
In addition, commenters suggest that the NRC does not adequately
consider broader nuclear nonproliferation policies and goals.
Specifically, commenters stated that the NRC does not consider the
impacts that its domestic licensing actions may have upon the broader
global nonproliferation regime, and the NRC should consult with other
agencies when considering the proliferation risks of a pending license
application. As described in response to petition Assertion 2, the NRC
interacts with other Federal agencies and receives information
regarding various threats and activities, including those related to
proliferation concerns. In addition, the NRC routinely cooperates with
other U.S. Government agencies on matters relating to the nation's
security. Through this extensive cooperation, the NRC ensures that its
licensing activities are aligned with the nation's larger
nonproliferation goals and policies. Further, the U.S. Government,
often supported by the NRC, is actively engaged in the international
nonproliferation regime as a Member State at the IAEA, the NSG, and the
Nuclear Energy Agency.
In response to the commenter stating that a nuclear proliferation
assessment requirement would encourage awareness of proliferation
concerns that could be translated into design features that improve the
proliferation resistance of future facilities, the NRC's existing
licensing framework provides regulatory requirements that address
design features needed to protect classified information, ensure
physical security of licensed material, and protect against the loss,
theft or attempted theft, or unauthorized production of SNM. Applicants
of ENR facilities would be aware of these design requirements and would
be required to address them in their facility designs and in their
license applications. A proliferation assessment, therefore, would add
little benefit to what is already required under the existing
regulations. As discussed in response to Comment Category 13,
incorporation of safeguards and MC&A requirements early in the design
phase can be more efficient than retrofitting them later.
Finally, the NRC agrees that there are a number of factors that
could influence whether a new ENR technology would increase the risk of
proliferation, including for example: (1) The probability of detecting
a clandestine facility; (2) whether a declared facility can be
effectively safeguarded; (3) whether technology can be used in the
production of highly-enriched uranium (relevant for enrichment
technologies only); and (4) whether the intellectual property for
technology that the NRC chooses not to license would revert to a
foreign entity for development.
In response to the factor regarding clandestine facility detection,
the NRC is not aware of any commercial enrichment plant that will not
have a significant footprint and will therefore be difficult to detect,
including GLE's proposed laser enrichment facility. However, as
previously described, the NRC's licensing framework is flexible and
adaptable. If a future technology presents proliferation risks that are
not addressed by the current framework, the NRC will act appropriately
to protect the public health and safety and promote the common defense
and security.
The NRC agrees that to address proliferation risks, ENR facilities
need to have adequate safeguards. Existing NRC requirements and on-
going NRC oversight programs ensure that all NRC-licensed nuclear
facilities implement safeguards measures. In addition, certain U.S.
facilities may be subject to IAEA safeguards inspections.
The NRC is also sensitive to the concern that new technologies can
be used to produce highly-enriched uranium. All enrichment facility
applicants have stated in their applications specific selected
possession limits that limit enriched uranium production to enrichments
no greater than 10 weight percent uranium 235. Highly-enriched uranium
has a greater than 20 percent concentration of uranium 235 or uranium
233. Although it is theoretically possible to make equipment changes at
a facility to produce enrichments greater than the facility's licensed
possession limit, the NRC's inspections are designed to verify that
licensee facilities do not engage in diversion, unauthorized
production, and over-enrichment of SNM.
Finally, the NRC recognizes that if it denies a license, there is a
possibility that the intellectual property for the technology may be
developed in another country. However, as a regulatory agency, when
making a particular licensing decision the NRC does not consider
whether the intellectual property or technology associated with a
license that is denied would revert to a foreign entity. As described
in response to petition Assertion 6, the NRC's licensing
responsibilities under the AEA are regulatory in nature. The NRC will
review each license application and make a licensing determination
consistent with its statutory responsibilities. If the NRC determines
that issuance of a license would be harmful to the public health and
safety or inimical to common defense and security, the NRC will deny
that license application.
Comment Category 6: Suggested methods for implementing the proposed
rule.
Five comment letters included statements related to this category.
Several commenters provided suggested methods for implementing the
petitioner's proposed rulemaking.
One commenter suggested that, in order to determine the most
sensitive areas of laser enrichment technologies and determine if they
pose additional risks, the NRC should baseline the risks of gaseous
diffusion and centrifuge
[[Page 34004]]
technology versus laser enrichment technologies.
Several commenters suggested specific content for a required
nuclear proliferation assessment. One commenter assumed that in
reviewing a nuclear proliferation assessment, the NRC would go beyond
the document itself and take into account classified information
pertaining to proliferation risks relevant to the licensing action.
Another commenter stated that a nuclear proliferation assessment should
address the novelty of the technology and the U.S. and international
measures that will be put in place to prevent proliferation. While
another commenter stated that in addition to the technical
considerations mentioned in the petition, a proliferation assessment
should take a broader view and analyze the potential global policy
impacts associated with the NRC licensing sensitive fuel cycle
facilities. The commenter cited, as an example, the DOE's 1999
``Nonproliferation Impacts Assessment for the Treatment and Management
of Sodium-Bonded Spent Nuclear Fuel'' (DOE/EIS-0306D) that considered
three technical factors and four policy factors associated with a
proposal to use a U.S. facility to chemically treat a stockpile of U.S.
spent nuclear fuel.
One commenter stated that a nuclear proliferation assessment could
be one vehicle for remedying the issues identified in the APS petition
but believes that the NRC staff could also identify an equivalent
alternative to address the petitioner's assertions that maximized staff
efficiency, transparency, and effectiveness.
NRC Response to Comment Category 6
The NRC does not agree that laser enrichment facility risks need to
be baselined against the risks of gaseous diffusion plants and
centrifuge technology to determine the most sensitive areas of laser
enrichment technologies and determine if they pose additional risks.
The NRC's regulations apply to all current and future commercial
enrichment facilities in the United States. As discussed in response to
petition Assertion 2, the NRC has determined that its existing
licensing framework adequately addresses proliferation risks by, for
example, including requirements to prevent unauthorized disclosure of
classified matter and sensitive technologies, and provide physical
protection of nuclear equipment and materials. Because the existing
licensing framework is adequate, a baselining study of other facilities
is not necessary to assess regulatory compliance or proliferation
risks.
The NRC will not speculate about suggested content for a
``required'' nuclear proliferation assessment. As previously discussed,
the NRC has determined that in light of the current licensing
framework, revising 10 CFR part 70 to require a proliferation
assessment would not provide new and significant information that would
enhance the NRC's decision-making or assist the NRC in carrying out its
statutory responsibilities.
Comment Category 7: The NRC's decision to license new technology
will set a precedent for the international nuclear industry.
Two comment letters included statements related to this category.
One commenter stated that the NRC continues to have influence as a
leader in the movement to improve nuclear safeguards, safety, and
security; thus, an NRC decision to require a nuclear proliferation
assessment as part of the licensing process would help move
international nuclear industry consensus in that direction. Another
commenter stated that the NRC's approval of new technology is likely to
serve as a precedent for greater use elsewhere.
NRC Response to Comment Category 7
The NRC does not agree that its decision to license a domestic ENR
facility utilizing a particular enrichment technology would necessarily
cause other countries to develop that particular technology. Many other
factors would play a role in a particular government's pursuit of ENR
technology, including its political will, technical expertise,
financial capital, and international obligations. Additionally, as
stated in response to petition Assertion 1, speculative assertions
regarding the potential influence of NRC decisions are not considered
in domestic licensing proceedings. The DOS, working with the DOE and
other Federal agencies, has the primary responsibility for implementing
the Federal Government's national nuclear nonproliferation goals and
policies. The NRC does strive to improve nuclear safety and security
internationally as well as domestically. However, as stated previously,
the NRC does not agree with the comment that requiring the NRC's
licensees to submit a nuclear proliferation assessment of the risks of
constructing and operating an ENR facility would further the goal of
improving nuclear safeguards, safety, or security.
Comment Category 8: Industry is committed to protecting against
proliferation.
One comment letter opposing the petition stated that (1) uranium
enrichment facilities have voluntarily committed to implement
additional measures to enhance the protection of information associated
with classified enrichment technologies, and (2) these additional
commitments are incorporated into facility-specific security plans. The
commenter also stated that its organization has developed a guidance
document endorsed by the NRC that provides guidance to enrichment
facility licensees to assist in protecting against proliferation of
classified technology, information, and equipment.
NRC Response to Comment Category 8
The NRC recognizes that NRC enrichment licensees and their
contractors that possess classified material have voluntarily committed
to adhere to additional information security measures not addressed in
10 CFR part 95. These voluntary security enhancements are set forth in
NEI 08-11, ``Information Security Program Guidelines for Protection of
Classified Material at Uranium Enrichment Facilities,'' published by
the NEI. These measures are contained in each licensee's security plan.
This plan is reviewed and approved by the NRC as part of the issuance
of a facility security clearance prior to facility operation. Adherence
to the security plan is also required by a condition in each license.
Comment Category 9: NRC should consider terrorism as part of the
licensing process.
Two comment letters included comments in this category. One
commenter stated that the ever-present threat of terrorism is a reason
for a nuclear proliferation assessment being part of the licensing
process. The other commenter suggested that the petition's suggestion
to perform a nuclear proliferation assessment does not go far enough,
and instead, a ``nuclear proliferation and terrorism assessment''
should be required. This assessment would evaluate ``beyond-design-
basis'' proliferation and terrorism impacts by considering diversion
and theft scenarios by adversaries with capabilities exceeding the
design basis threats for theft or diversion of SNM. The commenter
claimed that this would make the assessment comparable to the aircraft
impact assessment required for new nuclear plant applications in 10 CFR
50.150.
[[Page 34005]]
NRC Response to Comment Category 9
The NRC agrees that protection measures for its regulated
facilities should address known threats, including the threats from
overt, malevolent acts that may involve violence. The NRC interacts
regularly with its Federal partners to remain current on potential
threats directed against NRC-licensed facilities and keeps its
licensees informed of changes to the threat environment. The NRC's
physical protection requirements in 10 CFR part 73 require that
licensees protect against credible attacks from various adversary
scenarios. The NRC's comprehensive licensing framework is flexible and
adaptable, and will be updated as necessary to reflect protective
measures to address the changing threat environment. In the event the
NRC determines that additional measures are needed to protect against a
potential threat, the NRC would supplement its requirements by rule or
order, as appropriate.
The commenters failed to demonstrate that a ``nuclear proliferation
and terrorism assessment'' would provide significant and meaningful
information that would enhance the NRC's decision-making when licensing
an ENR facility. As discussed in response to petition Assertions 1 and
2, the NRC has determined that in light of the current comprehensive
licensing framework, revising 10 CFR part 70 to require a proliferation
assessment would not assist the NRC in carrying out its statutory
responsibilities.
Comment Category 10: Proliferation risks should be assessed early
in the regulatory process.
Four comment letters supporting the petition included comments in
this category. One commenter stated that it is imperative that we
understand what world we are about to create instead of discovering the
proliferation consequences after the fact. Other commenters stated that
it is important for proliferation assessments to be prepared before new
nuclear technologies are licensed, instead of waiting to deal with
situations in which technology may be proliferating due to commercial
demands or because of clandestine use. One commenter stated that
waiting to deal with such a situation is contrary to the agency's
principal mission to protect the health and safety of the public and to
assure the common defense and security.
NRC Response to Comment Category 10
The safety and security of nuclear materials and facilities are
assessed throughout the NRC domestic licensing process. As discussed in
the response to the petition Assertion 2, the NRC's comprehensive
licensing framework addresses proliferation risks by, for example,
including requirements to prevent the unauthorized disclosure of
classified matter and sensitive technologies, and provide physical
protection of nuclear equipment and materials. The NRC's regulatory
framework is adequate to address proliferation concerns throughout the
licensing process. The NRC, however, acknowledges that future
technologies may pose new or unique proliferation risks. Because the
NRC's licensing framework is flexible and adaptable, if the NRC
determines that a new technology or threat necessitates additional
requirements to protect the public health and safety or promote the
common defense and security, the NRC will supplement its requirements
by rule or order, as appropriate.
Comment Category 11: NRC's consideration of proliferation risks and
the National Environmental Policy Act (NEPA).
Two comment letters included comments in this category. Citing San
Luis Obispo Mothers for Peace v. NRC, 449 F.3d 1016 (9th Cir. 2006),
one commenter stated that the NRC is already obligated under NEPA to
analyze proliferation implications of any new nuclear technologies
because NEPA requires consideration of ``the full range of risks to the
common defense and security potentially arising from its licensing
decision, and must consider all reasonable alternatives that could
eliminate or mitigate those risks.'' This commenter also claimed that
the NRC has a ``double standard,'' because in its environmental impact
statements (EIS) it addresses national security concerns that support
licensing decisions but dismisses national security concerns that
undermine licensing decisions as beyond the scope of the EIS. This
commenter further claimed that the NRC demonstrates a lack of judgment
by generally assessing a wide range of environmental impacts but not
performing a thorough nonproliferation assessment of the proposed GLE
facility. The commenter attached comments on the draft EIS for the
proposed GLE facility for purposes of incorporating them in this PRM
record.
Another commenter took the opposing view, asserting that NEPA does
not require a nuclear proliferation assessment.
NRC Response to Comment Category 11
Comments regarding NEPA are beyond the scope of the petition. The
petition requests that the NRC implement a requirement to perform a
nuclear proliferation assessment consistent with its statutory
authority under the AEA. The petition did not request that the NRC
implement a requirement to perform a nuclear proliferation assessment
under NEPA. In addition, comments on the draft EIS for the proposed GLE
facility are outside the scope of this PRM and were addressed by the
NRC in the final EIS issued in February 2012 (ADAMS Accession Nos.
ML12047A040 and ML12047A042).
Comment Category 12: U.S. obligations under binding United Nations
Security Council Resolution 1540 paragraph 3(d).
Two comment letters supporting the petition included comments in
this category. Both commenters stated that a nuclear proliferation
assessment by the NRC for sensitive technologies would implement U.S.
obligations under binding United Nations Security Council Resolution
1540 paragraph 3(d) to establish, develop, review, and maintain
appropriate effective national export and trans-shipment controls over
materials, equipment, and technology that could assist the development
of weapons of mass destruction.
One commenter stated that the framework for legal nuclear export
controls codified in the Energy Reorganization Act of 1974 (ERA), the
Nuclear Non-Proliferation Act (NNPA), and subsequent legislation
supports the NRC's independent analysis of the proliferation
significance of licensed nuclear exports. The commenter also stated
that relevant Executive Orders and regulations provide appropriate
procedures for Executive Branch agencies to provide relevant views on
foreign policy and national security judgments in the licensing
process. The commenter further stated that appeals procedures also
enable license applicants or others to seek review of adverse
decisions. Thus, the nuclear proliferation assessment sought by the APS
will not disrupt NRC export licensing functions. Instead, the nuclear
proliferation assessment will contribute to the achievement of
important nonproliferation objectives.
NRC Response to Comment Category 12
United Nations Security Council Resolution 1540 Section (3)(d)
requires all United Nations-member states to adopt and enforce
appropriate and effective laws against the proliferation of weapons of
mass destruction, their means of delivery, and related materials. The
U.S. Government has established broad policies designed to address U.S.
[[Page 34006]]
proliferation concerns. However, United Nations Resolution 1540 does
not require the NRC to conduct a nuclear proliferation assessment in an
NRC domestic licensing process. Similarly, there is no requirement in
the AEA, ERA, NNPA, or other legislation requiring the NRC to conduct a
nuclear proliferation assessment as part of its domestic licensing
process.
It is not clear to which Executive Orders the commenter is
referring, and the NRC is not aware of any Executive Orders requiring a
nuclear proliferation assessment in an NRC domestic licensing process.
To the extent that the issues raised by the commenter address broader
foreign policy issues, other Executive Branch agencies have primary
responsibility for addressing proliferation concerns and foreign policy
initiatives.
Regarding the commenter's reference to export controls, the AEA and
NRC regulations (10 CFR part 110) provide comprehensive export controls
for nuclear equipment and material under NRC jurisdiction, as discussed
in the response to petition Assertion 2. Other Executive Branch
agencies are also responsible for implementing export controls for
items of concern for proliferation purposes. For example, the DOC's
Bureau of Industry and Security implements export controls over dual-
use items under its Export Administration Regulations, while the DOS's
Directorate of Defense Trade Controls implements export controls over
items of a military nature under its International Trafficking in Arms
regulations.
Comment Category 13: Proliferation assessments aid safeguards.
Three comment letters supporting the petition included comments in
this category. One commenter stated that standards should be
established to ensure that sensitive nuclear facilities are designed to
support effective safeguards against any kind of diversion or misuse of
SNM. This commenter also stated that requiring industries to prepare a
nuclear proliferation assessment will serve the nuclear industry as
well, in that steps to facilitate safeguards are more likely to be
incorporated into the design of the facilities rather than be
retrofitted later with higher cost and reduced effectiveness.
Another commenter stated that the objective of institutionalizing
the safeguards-by-design process ``is to provide a procedure by which
international and national safeguards, physical security, and other
nonproliferation objectives are fully integrated into the overall
design and construction process for a nuclear facility, from initial
planning throughout design and construction and with benefit to
operation; with the goal of increasing the safeguardability,
protectability and proliferation resistance of facilities.'' A
proliferation assessment can determine whether a facility can meet
higher safeguards standards or whether there is something inherent in
the technology that makes it harder to safeguard. The commenter also
asserted that the NRC needs to ensure that a proper assessment of laser
enrichment technology is conducted. The commenter stated that the NRC
must ensure that no sensitive information is publicly revealed and that
the NRC must consult with DOE experts when reviewing the proliferation
assessment on the GLE facility.
NRC Response to Comment Category 13
The NRC agrees that effective safeguards against diversion and
misuse of SNM are necessary. The NRC also agrees that incorporation of
safeguards through application of the NRC's MC&A and other related
requirements early in the design phase can be more efficient than
retrofitting them later. As discussed in response to petition Assertion
2, the NRC's comprehensive regulatory infrastructure (specifically, 10
CFR parts 73 and 74), addresses the physical protection of SNM against
radiological sabotage, theft, and diversion, and MC&A of SNM, protects
against diversion and misuse of SNM. These NRC requirements have been
and continue to be applied by applicants and licensees to facilities in
early design phases. In addition, the NRC staff is working with the DOE
to assess if meaningful IAEA inspections can be implemented at a laser
enrichment facility without improperly revealing classified matter.
The NRC agrees with comments noting that (1) Safeguards-by-Design
is an important tool for addressing the implementation of safeguards
requirements, and (2) it is important to design a facility so that
classified information is not revealed. The term Safeguards-by-Design
is a design process that considers safeguards requirements early in the
design of a facility. As previously stated, the NRC's existing
regulatory framework supports an enrichment facility applicant's
assessment of safeguards considerations early in the design process of
their respective facilities.
Comment Category 14: Whether additional steps are needed to ensure
that employees do not increase proliferation risks.
Two comment letters included comments in this category. One
commenter, supporting the petition, stated that history demonstrates
that employees in the nuclear industry can increase the risk of
proliferation. The commenter asserted that these technologies have
spread covertly around the world in part because one individual (A.Q.
Khan) stole plans from his employer (URENCO); therefore, additional
steps are necessary to prevent employees from improperly gaining access
to even more advanced nuclear technologies.
One commenter disagreed and states that A.Q. Khan invariably gets
invoked in the proliferation discussion, but wrongly so. The commenter
asserted that ``the U.S. intelligence community was well aware'' of
A.Q. Khan's activities and A.Q. Khan continued his extended
proliferation efforts due to politics and policy, not technological
limitations.
NRC Response to Comment Category 14
The NRC disagrees that it needs to take additional steps to prevent
nuclear industry employees from gaining access to and disclosing
sensitive nuclear technologies and information to would-be
proliferants. Parts 25 and 95 of 10 CFR include comprehensive
requirements governing access to SNM and sensitive enrichment
technology. These requirements are designed to ensure that: (1) Access
to nuclear technology is restricted to those with an appropriate
clearance and a need-to-know, and (2) adequate controls exist to
protect and prevent the unauthorized disclosure of classified
information and the diversion of nuclear materials considered important
to the national security. For example, access authorization
requirements address an employee's suitability, trustworthiness and
reliability before and during the time he/she is working at the
facility. Additionally, periodic reviews of an individual's background
and trustworthiness continue during the individual's employment. Upon
termination, employees are informed of their continuing
responsibilities with respect to protection of information. Violations
of these requirements can result in civil and criminal penalties. The
NRC conducts inspections to verify compliance with these requirements.
In addition, as previously described, the NRC regularly coordinates
with other Federal agencies, including the intelligence community, to
assess potential and real threats to information, facilities, and
individuals.
Comment Category 15: NRC should follow the DOE's example of
conducting
[[Page 34007]]
nonproliferation impact assessments in the context of major proposed
actions involving domestic processing of SNM.
One comment letter supporting the petition included comments in
this category. The commenter stated that the DOE has conducted several
nonproliferation impact assessments in the context of major proposed
actions involving domestic processing of SNM and that the NRC should
follow its example.
NRC Response to Comment Category 15
For the reasons discussed in response to petition Assertion 2, the
NRC has determined that its existing licensing framework is adequate
and preparing a proliferation assessment would not assist the NRC in
carrying out its statutory responsibilities to protect the public
health and safety and promote the common defense and security.
Therefore, it is unnecessary for the NRC to require ENR facility
applicants to conduct such assessments. The NRC, however, will continue
to work closely with other Federal agencies to ensure that its
licensing activities are consistent with broader U.S. nonproliferation
goals and policies and that nuclear materials and technologies continue
to be used in a safe and secure manner.
Comment Category 16: NRC should require a proliferation assessment
for all fuel cycle facility license applications.
One comment letter supporting the petition included comments in
this category. The commenter stated that the NRC should increase the
scope of the petition by requiring proliferation assessments for all
fuel cycle facilities seeking to produce, possess, and/or use SNM under
10 CFR parts 50 and 70, including mixed oxide fuel fabrication
facilities and uranium conversion plants. The commenter suggested that
the intensity of the review could be graded in accordance with the
sensitivity of the facility.
NRC Response to Comment Category 16
The NRC disagrees that proliferation assessments should be required
for all fuel cycle facilities. Existing NRC requirements address
proliferation risks and concerns at all fuel cycle facilities. As
discussed in response to petition Assertion 2, the existing NRC
licensing framework is adequate to address proliferation concerns
associated with nuclear fuel cycle facilities by including requirements
to prevent the unauthorized disclosure of classified matter and
sensitive technologies, and provide physical protection of nuclear
equipment and materials. As for the suggestion that NRC staff grade its
reviews based on the sensitivity of the facility, the NRC staff
currently performs risk-informed reviews of license applications based
on the risks associated with the types, physical and chemical forms,
and quantities of materials to be possessed and used at the facility.
Comment Category 17: Policy-related issues.
Nine comment letters included statements related to policy issues.
Seven commenters supported the petition, and two commenters opposed the
petition.
One comment letter questioned whether laser technology could
increase the risk of plutonium production. The commenter questioned
whether the SILEX technology, which is used to separate silicon and
zirconium from other materials, could be adjusted to purify other kinds
of materials such as SNM. The commenter further asserted that in the
mid-1980s, the DOE pursued a Special Isotope Separation facility to
separate plutonium 239 from other isotopes of plutonium. Pursuit of the
technology (and the associated EIS process) was canceled, but it is
unknown if the current laser technology could be adapted for the
purification of plutonium.
One commenter supporting the petition stated that the NRC would be
wrong to presume that it need not ``pick sides'' in this debate simply
because SILEX will not be exported. The commenter went on to explain
that in 1976, the United States deferred the commercial, domestic use
of plutonium-based fuels because of the potential adverse proliferation
implications of proceeding. Given this precedent, and the distinct
possibility that the negative proliferation implications SILEX's
domestic deployment today might equal or exceed those associated with
plutonium-based fuels in 1976, the commenter stated that it would only
be prudent for the NRC to secure and formally evaluate the views of
those primarily responsible for providing for the nation's security.
Similarly, another commenter stated the United States has previously
abandoned a civil nuclear effort (reprocessing and recycling of
plutonium) in order to combat proliferation and that, in this spirit,
the NRC should make a rigorous and distinct proliferation assessment a
new part of the licensing criteria.
One commenter opposing the petition stated that the petitioner has
not made an adequate case for NRC consideration. The commenter stated
that the petition confuses technical and licensing issues within the
scope of the NRC's licensing processes with broader aspects of the U.S.
Government's nuclear nonproliferation policy, which is outside the
scope of the NRC's regulatory jurisdiction. The commenter stated that
such policy involves a wide range of agencies within the U.S.
Government, not just the NRC, and that the petitioner fails to
acknowledge these substantial efforts.
Another commenter opposing the petition stated that Section 123 of
the AEA requires that the DOS conduct an NPAS in developing agreements
with other nations for peaceful nuclear activities. These Section 123
agreements reflect the views and recommendations of the Secretary of
Energy and the NRC. Further, these NPASs are prepared in consultation
with the Director of Central Intelligence in order to address relevant
classified information. These assessments also: (1) Analyze whether a
proposed Section 123 agreement is consistent with the criteria set
forth in the Act, (2) address the adequacy of safeguards and other
control mechanisms, and (3) include peaceful use assurances.
NRC Response to Comment Category 17
Regarding the comment that the SILEX technology is used to separate
silicon and zirconium, SILEX Ltd uses a laser process to separate
silicon and zirconium isotopes. This technology is different from the
technology used for uranium isotope separation. The statement that
laser technology could be adjusted to purify other kinds of materials
such as SNM is speculative. The NRC is not aware of and the commenter
has not provided any information to support the assertion that laser
technology could be adopted for the purification of, for example,
plutonium. However, if new technologies present proliferation risks or
threats not currently addressed by the NRC's comprehensive licensing
framework, the NRC would take appropriate actions, consistent with its
statutory authority to protect public health and safety and common
defense and security, to address those risks or threats.
The NRC disagrees that the NRC needs to ``pick sides'' in the
debate over SILEX and that the NRC should require a nuclear
proliferation assessment in the spirit of the U.S. abandonment of
reprocessing. As discussed in response to petition Assertion 6, the NRC
is an independent regulatory agency; the NRC does not encourage or
discourage the development of any particular technology. Such national
policy decisions are appropriately made by the President and Congress.
For example, in 1976, it was President Carter, not the NRC, who
established as a matter of
[[Page 34008]]
policy that the United States would not engage in nuclear fuel
reprocessing because of concerns about nuclear proliferation.
The NRC agrees that the petition mixes technical and licensing
issues that are within the scope of the NRC's domestic licensing
process with broader aspects of the U.S. Government's nuclear
nonproliferation policy. While the NRC's comprehensive licensing
framework is adequate to address proliferation concerns in domestic
licensing, other Executive Branch agencies have the primary
responsibility to address broader U.S. Government foreign policy
initiatives and proliferation impacts outside of the NRC's domestic
licensing activities.
As discussed in response to petition Assertion 1, the NRC agrees
that the NPAS required under Section 123 of the AEA is required in the
context of a bilateral agreement negotiated between the United States
and another nation governing the peaceful use of nuclear energy. The
NPAS does not address the domestic licensing actions of the NRC.
Comment Category 18: Requiring a proliferation assessment would be
feasible and would not be overly burdensome nor significantly impact
licensing timelines.
Two comment letters supporting the petition included comments in
this category. One commenter stated that a nuclear proliferation
assessment is feasible and should not be perceived as overly burdensome
to the licensing process. A commenter stated that GLE carried out its
own proliferation assessment of the proposed SILEX laser enrichment
facility without creating delays or jeopardizing classified or
proprietary information. Another commenter stated that it is highly
doubtful that the addition of a proliferation assessment requirement
would significantly alter licensees' timelines.
NRC Response to Comment Category 18
The NRC has determined that preparation of a nuclear proliferation
assessment is not necessary because it would not provide meaningful
information beyond that which is already available to the NRC when
conducting a domestic licensing proceeding. This determination was made
independent of the time and resources involved in preparing such an
assessment. This determination was also made by reviewing the petition,
the public comments, the information sources available to the NRC
related to the current threat environment, the existing comprehensive
licensing framework, the division of responsibilities between Federal
agencies, and the NRC's extensive experience dealing with domestic and
international nuclear safety security matters through established
communications channels. Based on this review, the NRC has determined
that its existing licensing framework is adequate to address
proliferation concerns. Requiring a separate license-by-license nuclear
proliferation assessment would not enhance the NRC's ability to carry
out its statutory responsibility to protect the public health and
safety and promote the common defense and security.
Comment Category 19: The Nuclear Threat Initiative (NTI).
Two comment letters included comments in this category. Both
commenters stated their support for the efforts of the NTI (also
supported by former Senators Richard Lugar and Sam Nunn), which
supports the worldwide safeguarding of all fissile materials that could
be used to do harm to our Nation.
NRC Response to Comment Category 19
Comments advocating support for the NTI are outside the scope of
this petition because they are unrelated to the petitioner's request
that the NRC require its ENR facility license applicants to perform a
nuclear proliferation assessment. Nonetheless, the NRC notes that its
comprehensive licensing framework requires the safeguarding of fissile
material in domestic licensing activities.
V. Determination of Petition
The NRC has reviewed the petition and the public comments. For the
reasons set forth in this document, the NRC is denying the petition
under 10 CFR 2.803. The NRC disagrees that an applicant seeking an ENR
facility license should be required to conduct a nuclear proliferation
assessment. The petitioner has not shown that the NRC's comprehensive
licensing framework fails to adequately address proliferation risks
associated with the licensing of an ENR facility. Additionally, the
petitioner has not shown that ENR applicants have a particular insight
on proliferation issues or have access to the intelligence resources,
capabilities and information that would enable them to prepare a
meaningful proliferation assessment that would assist the NRC in making
an informed licensing decision. Furthermore, proliferation risks have
and will continue to be assessed and addressed by the responsible
agencies within the Executive Branch. The NRC will continue to engage
with and support the Executive Branch agencies with primary
responsibility for assessing proliferation risks, and will continue to
address proliferation risks in the NRC's comprehensive regulations for
physical security, information security, material control and
accounting, cyber security, and export control.
Dated at Rockville, Maryland, this 31st day of May 2013.
For the Nuclear Regulatory Commission.
Annette L. Vietti-Cook,
Secretary of the Commission.
[FR Doc. 2013-13444 Filed 6-5-13; 8:45 am]
BILLING CODE 7590-01-P