Nuclear Proliferation Assessment in Licensing Process for Enrichment or Reprocessing Facilities, 33995-34008 [2013-13444]

Download as PDF 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 http://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 http://www.nrc.gov/reading- erowe on DSK2VPTVN1PROD with PROPOSALS-1 SUMMARY: VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00001 Fmt 4702 Sfmt 4702 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 E:\FR\FM\06JNP1.SGM 06JNP1 erowe on DSK2VPTVN1PROD with PROPOSALS-1 33996 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00002 Fmt 4702 Sfmt 4702 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 E:\FR\FM\06JNP1.SGM 06JNP1 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules erowe on DSK2VPTVN1PROD with PROPOSALS-1 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00003 Fmt 4702 Sfmt 4702 33997 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 E:\FR\FM\06JNP1.SGM 06JNP1 33998 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules erowe on DSK2VPTVN1PROD with PROPOSALS-1 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00004 Fmt 4702 Sfmt 4702 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 E:\FR\FM\06JNP1.SGM 06JNP1 erowe on DSK2VPTVN1PROD with PROPOSALS-1 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00005 Fmt 4702 Sfmt 4702 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 E:\FR\FM\06JNP1.SGM 06JNP1 34000 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 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. erowe on DSK2VPTVN1PROD with PROPOSALS-1 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 http://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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00006 Fmt 4702 Sfmt 4702 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, E:\FR\FM\06JNP1.SGM 06JNP1 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 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. erowe on DSK2VPTVN1PROD with PROPOSALS-1 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00007 Fmt 4702 Sfmt 4702 34001 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 E:\FR\FM\06JNP1.SGM 06JNP1 erowe on DSK2VPTVN1PROD with PROPOSALS-1 34002 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00008 Fmt 4702 Sfmt 4702 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., E:\FR\FM\06JNP1.SGM 06JNP1 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules erowe on DSK2VPTVN1PROD with PROPOSALS-1 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00009 Fmt 4702 Sfmt 4702 34003 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 E:\FR\FM\06JNP1.SGM 06JNP1 34004 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 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. erowe on DSK2VPTVN1PROD with PROPOSALS-1 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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. PO 00000 Frm 00010 Fmt 4702 Sfmt 4702 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. E:\FR\FM\06JNP1.SGM 06JNP1 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules erowe on DSK2VPTVN1PROD with PROPOSALS-1 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00011 Fmt 4702 Sfmt 4702 34005 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. E:\FR\FM\06JNP1.SGM 06JNP1 erowe on DSK2VPTVN1PROD with PROPOSALS-1 34006 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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. PO 00000 Frm 00012 Fmt 4702 Sfmt 4702 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 E:\FR\FM\06JNP1.SGM 06JNP1 Federal Register / Vol. 78, No. 109 / Thursday, June 6, 2013 / Proposed Rules 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. erowe on DSK2VPTVN1PROD with PROPOSALS-1 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 VerDate Mar<15>2010 15:07 Jun 05, 2013 Jkt 229001 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 PO 00000 Frm 00013 Fmt 4702 Sfmt 4702 34007 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 E:\FR\FM\06JNP1.SGM 06JNP1 34008 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: http:// 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]


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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 http://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 http://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 http://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