# Additional Protocol Regulations

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3AE8-25559

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** October 31, 2008
- **Citation:** 73 FR 65120

## Text

DEPARTMENT OF COMMERCE
Bureau of Industry and Security
15 CFR Chapter VII, Subchapter D, Parts 781 Through 786
[Docket No. 080212165-81300-02]
RIN 0694-AD26
Additional Protocol Regulations

AGENCY:

Bureau of Industry and Security, Commerce.

ACTION:

Final rule.

SUMMARY:

This final rule implements the provisions of the Protocol Additional to the Agreement Between the United States of America and the International Atomic Energy Agency (IAEA) for the Application of Safeguards in the United States of America (the “Additional Protocol”). The Additional Protocol is an agreement between the United States and the IAEA to allow monitoring and reporting of certain civil nuclear fuel cycle-related activities.

The Department of Commerce's Bureau of Industry and Security (BIS) is establishing these Additional Protocol Regulations (APR) to implement the provisions of the Additional Protocol affecting U.S. industry and other U.S. persons engaged in certain civil nuclear fuel cycle-related activities, which are not regulated by the U.S. Nuclear Regulatory Commission (NRC) or its domestic Agreement States, and are not located on certain U.S. government locations. The APR describe the requirement to report such activities to BIS, the scope and conduct of IAEA complementary access to locations at which such civil nuclear fuel cycle-related activities take place, and the role of BIS in implementing the Additional Protocol in the United States. The impact of the APR on U.S. industry and other U.S. persons involves the submission of initial reports, annual update reports, and other reporting requirements, as well as on-site activities in conjunction with complementary access. Other U.S. Government agencies issuing regulations to implement other provisions of the Additional Protocol include the Nuclear Regulatory Commission, the Department of Energy, and the Department of Defense. On July 25, 2008, BIS published a proposed rule that requested comments on the proposed establishment of the APR. BIS received comments from one respondent and has reviewed these comments and considered them in its preparation of this final rule.

DATES:

This rule is effective October 31, 2008. Although there is no formal comment period, public comments on this regulation are welcome on a continuing basis.

ADDRESSES:

You may submit comments, identified by RIN 0694-AD26, by any of the following methods:

•
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the on-line instructions for submitting comments.

•
E-mail: publiccomments@bis.doc.gov.
Include “RIN 0694-AD26” in the subject line of the message.

•
Fax:
(202) 482-3355. Please alert the Regulatory Policy Division, by calling (202) 482-2440, if you are faxing comments.

•
Mail or Hand Delivery/Courier:
Willard Fisher, U.S. Department of Commerce, Bureau of Industry and Security, Regulatory Policy Division, 14th St. & Pennsylvania Avenue, NW., Room 2705, Washington, DC 20230, ATTN: RIN 0694-AD26.

FOR FURTHER INFORMATION CONTACT:

For questions of a general or regulatory nature, contact the Regulatory Policy Division, telephone: (202) 482-2440. For program information on reports and complementary access, contact Jill Shepherd, Treaty Compliance Division, Office of Nonproliferation and Treaty Compliance, telephone: (202) 482-1001. For legal questions, contact Rochelle Woodard, Office of the Chief Counsel for Industry and Security, telephone: (202) 482-5301.

SUPPLEMENTARY INFORMATION:

Background

I. Origins and Overview of the Additional Protocol

The requirement for a comprehensive international safeguards system to prevent the spread of nuclear weapons was first established by the Treaty on the Non-Proliferation of Nuclear Weapons (NPT). The NPT was signed by the United States on July 1, 1968, and entered into force on March 5, 1970. The treaty banned nuclear weapon states (NWS) from transferring nuclear weapons to non-nuclear weapon states (NNWS) or assisting NNWS in acquiring such weapons. It also banned NNWS from manufacturing or acquiring nuclear weapons and stipulated that each NNWS Party to the NPT would undertake to accept safeguards, as set forth in an agreement to be negotiated and concluded with the International Atomic Energy Agency (IAEA), which serves as the official international verification authority for the implementation of safeguards agreements concluded pursuant to the NPT. Although NWS, including the United States, are not obligated under the NPT to accept IAEA safeguards, all have voluntarily offered to accept safeguards on certain activities to encourage NNWS to meet their obligations. The IAEA completed formulation of detailed provisions for a model NPT Safeguards Agreement in 1971. The safeguards system, as embodied in the comprehensive safeguards agreements concluded between the IAEA and individual NNWS States Parties to the NPT, consists of nuclear material accountancy and nuclear material verification measures by which the IAEA independently verifies declarations made by individual States Parties about their nuclear material and activities to ensure that nuclear material inventories and flows have been accurately declared and are not being used to further any proscribed purpose.

During deliberations on the NPT, several major industrialized nations expressed concern that the absence of requirements for IAEA safeguards in NWS would place NNWS at a commercial and industrial disadvantage in developing nuclear energy for peaceful purposes. Specifically, the NNWS were concerned that application of safeguards would interfere with the efficient operations of their commercial activities and would possibly compromise industrial and trade secrets as a result of access by IAEA inspectors to their facilities and records. In order to allay these concerns, the United States voluntarily offered in 1967 to permit the IAEA to apply safeguards to civil nuclear facilities in the United States. The U.S. “Voluntary Offer” is set forth in the “Agreement Between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in the United States of America” (also known as the “U.S.-IAEA Safeguards Agreement”). Since then, the other four NWS recognized under the NPT (China, France, the Russian Federation, and the United Kingdom) also agreed to make all or part of their civil nuclear activities eligible for IAEA safeguards.

The U.S.-IAEA Safeguards Agreement was signed on November 18, 1977, and entered into force on December 9, 1980. At that time, the United States submitted to the IAEA a list of more than 200 eligible facilities for which safeguards could be applied if selected by the IAEA. This list included facilities licensed by the U.S. Nuclear Regulatory Commission (NRC), as well as eligible Department of Energy facilities. The United States has added additional facilities to the eligible facilities list

since that time. Under the U.S.-IAEA Safeguards Agreement, approximately eighteen facilities have been selected for safeguards inspection and/or monitoring since 1981.

Although the U.S.-IAEA Safeguards Agreement is based on the model safeguards agreement developed by the IAEA, the terms of the U.S.-IAEA Safeguards Agreement and the obligations of NNWS parties to the NPT differ in several respects. First, the U.S.-IAEA Safeguards Agreement excludes nuclear facilities associated with activities of direct national security significance. Second, the United States decides which civil nuclear facilities are eligible for the full program of safeguards procedures (including routine inspections) and the IAEA decides which eligible facilities will be selected for the application of safeguards, although the IAEA need not select any. Finally, the United States has made separate commitments to provide to the IAEA, for safeguards purposes, information on exports of nuclear material and nuclear-related equipment and materials.

In the aftermath of the 1991 Persian Gulf War, the IAEA determined that Iraq had been engaged in a clandestine nuclear weapons development program at locations not directly subject to routine IAEA safeguards inspections. The international community determined that the safeguards system needed to be strengthened, and negotiated a Model Additional Protocol to amend existing bilateral safeguards agreements (i.e., the “Model Protocol Additional to the Agreement(s) Between State(s) and the International Atomic Energy Agency for the Application of Safeguards,” INFCIRC/540 (Corrected) September 1997). The Model Additional Protocol requires enhanced information collection and access to sites and other locations involved in nuclear fuel-cycle related activities and covers almost all of a state's nuclear fuel cycle, thereby providing IAEA inspectors with greater ability to detect clandestine nuclear activities in NNWS facilities, sites, and locations that are involved in nuclear fuel cycle activities. In an effort to encourage adoption of the Additional Protocol among NNWS, the United States signed the Additional Protocol on June 12, 1998. In the Additional Protocol, the United States accepts all of the measures of the Model Additional Protocol, except where their application would result in access by the IAEA to activities of direct national security significance to the United States or to locations or information associated with such activities. By subjecting itself to the same safeguards on all of its civil nuclear activities that NNWS are subject to (with the exception of those activities of direct national security significance), the United States intends to encourage widespread adherence to the Model Additional Protocol and demonstrate that adherence does not place other countries at a commercial disadvantage.

The Additional Protocol will enter into force when the United States notifies the IAEA that the statutory and constitutional requirements for entry into force have been met. These requirements include: (1) Ratification, to which the Senate provided advice and consent with certain conditions and understandings on March 31, 2004; (2) enactment of implementing legislation, which was signed by the President on December 18, 2006 (The U.S. Additional Protocol Implementation Act of 2006 (Pub. L. 109-401, 120 Stat. 2726 (2006)); (3) issuance of an Executive Order, which was issued as Executive Order 13458 of February 4, 2008 (73 FR 7181, February 6, 2008); (4) issuance of agency regulations by the Departments of Commerce, Defense, and Energy, and by the Nuclear Regulatory Commission (DOC, DOD, DOE, and NRC); and (5) certification by the President that certain Senate conditions have been met. The United States' instrument of ratification may be deposited with the IAEA only after the President has certified that two Senate conditions, which address the application of the national security exclusion in Articles 1.b and 1.c of the Additional Protocol (i.e., managed access, security and counter-intelligence training, and preparation at locations of direct national security significance) and the completion of site vulnerability assessments concerning activities, locations, and information of direct national security significance, will be met within 180 days after deposit of the United States' instrument of ratification.

The Additional Protocol consists of the following articles and annexes:

Article 1: Relationship between the Additional Protocol and the U.S.-IAEA Safeguards Agreement

Articles 2 and 3: Provision of information

Articles 4 through 10: Complementary access

Article 11: Designation of IAEA inspectors

Article 12: Visas

Article 13: Subsidiary arrangements

Article 14: Communications systems

Article 15: Protection of confidential information

Article 16: Annexes

Article 17: Entry into force

Article 18: Definitions

Annex I: List of activities referred to in the Additional Protocol

Annex II: List of specified equipment and non-nuclear material for reporting of exports and imports.

The Additional Protocol requires the United States to declare to the IAEA a number of nuclear fuel cycle-related items, materials, and activities that may be used for peaceful nuclear purposes, but that also could be necessary elements for a nuclear weapons program. In order to obtain the information necessary to complete the U.S. declaration to the IAEA, the U.S. Government must collect reports from U.S. industry and other U.S. persons. U.S. declarations submitted under the Additional Protocol will provide the IAEA with information about additional aspects of the U.S. civil nuclear fuel cycle, including: mining and concentration of nuclear ores; nuclear-related equipment manufacturing, assembly, or construction; imports, exports, and other activities involving certain source material (i.e., source material that has not reached the composition and purity suitable for fuel fabrication or for being isotopically enriched); imports and exports of specified nuclear equipment and non-nuclear material; nuclear fuel cycle-related research and development activities not involving nuclear material; and other activities involving nuclear material not currently subject to the U.S.-IAEA Safeguards Agreement.

Within 180 days after deposit of the United States' instrument of ratification of the Additional Protocol, the United States must submit to the IAEA a declaration containing information compiled from the
Initial Reports
submitted to BIS in accordance with the requirements of section 783.1(a) of the APR. Thereafter, by May 15th of each succeeding year, the United States must submit to the IAEA a declaration containing an annual update to the information contained in previous U.S. declarations to the IAEA. The U.S. annual declaration to the IAEA will contain information compiled, for the most part, from the
Annual Update Reports
submitted to BIS in accordance with the requirements of section 783.1(b) of the APR.

The Additional Protocol provides that there shall be no mechanistic or systematic verification of information contained in the U.S. declaration (e.g., there is no provision for routine inspections). However, the United States is required to provide the IAEA with access (referred to as “complementary access”) to civil nuclear fuel cycle-related locations and activities, under certain circumstances, as defined in the Additional Protocol. Such access is designed to ensure the absence of undeclared nuclear material and activities at declared sites where nuclear facilities or materials are located

or to address a question about the completeness or correctness of the U.S. declaration or an inconsistency related to the information contained therein. In the latter instance, access generally will be requested only if a question or inconsistency in the U.S. declaration cannot be resolved through consultation between the United States and the IAEA. The APR contain requirements administered by the Department of Commerce's Bureau of Industry and Security to implement the Additional Protocol. Additional U.S. obligations under the Additional Protocol are administered by other U.S. government agencies as designated by the President of the United States.

A. Part 781—General Information and Overview of the APR

The Additional Protocol Regulations (15 CFR chapter VII, subchapter D), or APR, implement certain obligations of the United States under the Additional Protocol. Part 781 contains definitions of terms used in the APR, describes the purpose and scope of the APR, and provides an overview of the activities regulated under the APR.

B. Part 782—General Information Regarding Reporting Requirements and Procedures

The Additional Protocol augments the existing U.S.-IAEA Safeguards Agreement by requiring the United States to provide the IAEA with information on civil nuclear and nuclear-related items, materials, and activities not presently covered by the U.S.-IAEA Safeguards Agreement. The items, materials, and activities that must be declared include the following: Mining and milling activities involving the production or processing of materials that could serve as feed material for the civil nuclear fuel cycle (i.e., uranium and thorium); nuclear-related equipment manufacturing; exports and imports of nuclear-related equipment and nuclear-related non-nuclear material; and civil nuclear fuel cycle-related research and development (R&D) activities not involving nuclear material. To enable the United States to collect the information necessary to prepare the U.S. declaration to the IAEA, BIS is publishing the APR to establish reporting requirements for U.S. industry and other U.S. persons concerning civil nuclear and nuclear-related items, materials, and activities that must be declared under the Additional Protocol.

Part 782 of the APR contains a brief overview of the reporting and compliance review requirements in the APR, identifies who is responsible for submitting the reports required under the APR, and provides information on how to determine which activities are subject to the APR reporting requirements, including instructions on where and how to submit activity determination requests to BIS. Part 782 also explains how to obtain the forms needed to submit reports required by the APR and where to submit the reports.

C. Part 783—Reporting Requirements for Nuclear Fuel Cycle-Related Activities Not Involving Nuclear Materials

Part 783 contains a comprehensive description of the reporting requirements under the APR, including which activities must be reported, who must submit reports, the types of reports that must be submitted (e.g.,
Initial Report, Annual Update Report, Import Confirmation Report,

Supplemental Information Report
—the latter will be submitted in response to BIS notification of an IAEA request for amplification or clarification of information), the types of changes that will require the submission of an
Amended Report
to BIS, when a
No Changes Report
may be submitted in lieu of an
Annual Update Report,
the APR forms required and the procedures that must be followed to prepare and submit these reports, and the deadlines for submitting these reports to BIS.

Section 783.1(a) of the APR establishes initial reporting requirements under the APR. You must submit an
Initial Report
to BIS, no later than December 1, 2008, if you are engaged in any of the civil nuclear fuel cycle-related activities described in section 783.1(a) of the APR on October 31, 2008. In this instance, your
Initial Report
must describe only those activities in which you are engaged as of October 31, 2008, except that the description of activities involving uranium hard-rock mines must include any such mines that were closed down during calendar year 2008 (up to and including October 31, 2008 as well as mines that were in either operating or suspended status on October 31, 2008. The period of time covered by your
Initial Report
must include calendar year 2008 (up to and including October 31, 2008).

For any calendar year that follows calendar year 2008, you must submit an
Initial Report
to BIS if you commenced civil nuclear fuel cycle-related activities described in section 783.1(a) of the APR at your location, during the previous calendar year, and have not previously reported such activities to BIS. You may include such activities in your
Annual Update Report,
in lieu of submitting a separate
Initial Report,
if you also have an
Annual Update Report
requirement for the same location that covers the same reporting period (
Annual Update Report
requirements are addressed in the discussion of section 783.1(b), below).

Section 783.1(a)(1) of the APR contains two separate reporting requirements that apply to civil nuclear fuel cycle-related research and development activities, as defined in section 781.1 of the APR, that do not involve nuclear material. Section 783.1(a)(1)(i) of the APR describes the initial reporting requirement for any such civil activities that were funded, specifically authorized or controlled by, or carried out on behalf of, the United States. Section 783.1(a)(1)(ii) of the APR describes the initial reporting requirement for any such activities that were specifically related to civil enrichment, reprocessing of nuclear fuel, or the processing of intermediate or high-level waste containing plutonium, high enriched uranium or uranium-233 and that were not funded, specifically authorized or controlled by, or carried out on behalf of the United States. Reports on these activities must include a general activity description and location information. The provisions of section 783.1(a)(1)(i) and (a)(1)(ii) are intended to address the information requirements described in Articles 2.a(i) and 2.b(i), respectively, of the Additional Protocol.

Section 783.1(a)(2) of the APR describes the initial reporting requirement for civil nuclear-related manufacturing, assembly, and construction activities (e.g., the manufacture of centrifuge rotor tubes, diffusion barriers, zirconium tubes, nuclear grade graphite, and reactor control rods). The specific activities subject to this APR reporting requirement are listed in detail in Supplement No. 2 to Part 783 of the APR, which corresponds to Annex I of the Additional Protocol. For these locations, the APR require a description of the scale of operations for each location engaged in any of the activities described in Supplement No. 2 to Part 783. This information need not be detailed, but should include the organization's name, location, a brief description of operations, and the estimated current annual production. The provisions of section 783.1(a)(2) are intended to address the information requirements described in Article 2.a(iv) of the Additional Protocol.

Section 783.1(a)(3) of the APR describes the initial reporting requirement for U.S. uranium hard-rock mining activities, consistent with

information requirements described in Article 2.a(v) of the Additional Protocol. Uranium hard-rock mines are required to report to BIS their location, operational status, estimated annual production capacity, and current annual production. For
Initial Reports
submitted during calendar year 2008, this reporting requirement applies to any mines that were closed down during that calendar year (up to and including October 31, 2008), as well as mines in either operating or suspended status on October 31, 2008. Mines that were closed down prior to calendar year 2008 do not have a reporting obligation.

Section 783.1(b) of the APR establishes annual reporting requirements under the APR. If you submit an
Initial Report
to BIS, in accordance with Section 783.1(a) of the APR, and your
Initial Report
does not indicate that all civil nuclear fuel cycle-related activities described therein have ceased at your location, section 783.1(b) of the APR requires that you submit an
Annual Update Report
to BIS for each calendar year that follows the year covered by your
Initial Report
. This
Annual Update Report
requirement will continue to apply for as long as you engage in activities subject to the APR reporting requirements. If your location subsequently ceases to engage in activities subject to the APR reporting requirements, you will still be required to submit an
Annual Update Report
covering the calendar year in which you ceased to engage in such activities. Section 783.1(b)(2) of the APR provides that a
No Changes Report
may be submitted, in lieu of an
Annual Update Report,
when there are no changes with respect to your location and civil nuclear fuel cycle-related activities during the previous calendar year. If your
Initial Report
or most recent
Annual Update Report
indicates that all civil nuclear fuel cycle-related activities described therein have ceased at your location, and no other reportable activities have occurred during the previous calendar year, then you will not have a reporting requirement under Section 783.1(a) or (b) of the APR.

Initial Reports
describing reportable civil nuclear fuel cycle-related activities identified in Section 783.1(a) of the APR must be submitted to BIS no later than December 1, 2008, if you are engaged in any such civil nuclear fuel cycle-related activities on October 31, 2008. Any such activities that commence after October 31, 2008 must be reported to BIS no later than January 31 of the year following the calendar year in which the activities took place. If you are subject to an
Annual Update Report
requirement for the same location and covering the same reporting period, you may include these additional activities in your
Annual Update Report,
in lieu of submitting a separate
Initial Report.

Annual Update Reports
must be submitted to BIS by January 31st of the year following any calendar year in which reportable fuel cycle-related activities took place.
No Changes Reports
must be submitted to BIS by January 31st of the year following any calendar year in which reportable nuclear fuel cycle-related activities took place.

Section 783.1(c) of the APR describes the reporting requirements that apply to imports of equipment or non-nuclear material identified in Supplement No. 3 to Part 783 of the APR. The equipment and non-nuclear material in Supplement No. 3 are derived from the Nuclear Suppliers Group (NSG) Trigger List (IAEA INFCIRC/254/Rev.8/Part 1, Annex B). This List is included in Annex II of the Additional Protocol and consists of material, equipment, and technology that is specially designed or prepared for the processing, use, or production of special nuclear material. You will be notified by BIS if an
Import Confirmation Report
is required under the APR. BIS will provide such notification only upon receipt of a request from the IAEA for information to verify imports. For each import of equipment or non-nuclear material listed in Supplement No. 3 to Part 783, you must submit an
Import Confirmation Report
to BIS no later than 30 calendar days following the date that you receive notification of this requirement. The provisions of section 783.1(c) are intended to address the information requirements described in Article 2.a(ix)(b) of the Additional Protocol.

Section 783.1(d) of the APR describes the requirements that apply to a
Supplemental Information Report.
If the IAEA specifically requests amplification or clarification concerning any information provided in the U.S. declaration that is based on your report(s), BIS will send you written notification requiring that you report to BIS additional information concerning the activities that you previously reported and any other activities conducted at your location or building that would be relevant for the purpose of addressing the IAEA's request for amplification or clarification of information.

Section 783.2 of the APR describes the circumstances under which an
Amended Report
must be submitted to BIS. Section 783.2(a) of the APR requires that an
Amended Report
be submitted to BIS no later than 30 calendar days following the date that you discover an error or omission in your most recent report that involves information concerning an activity subject to the reporting requirements in section 783.1(a) or (b) of the APR. Section 783.2(b) of the APR requires that an
Amended Report
be submitted to BIS no later than 30 calendar days after any changes to company and location information, such as the company's designated contact person (for reporting and complementary access purposes), the name or mailing address of the company, the owner/operator of the location, or the owner of the company. Section 783.2(d) of the APR requires that an
Amended Report
be submitted to BIS no later than 30 calendar days following the date that you received written notification from BIS to provide information requested by the IAEA following complementary access to the location.

D. Part 784—Complementary Access

Part 784 of the APR describes the purpose of complementary access by the IAEA and identifies the types of locations that may be subject to complementary access under the APR. Any location that is required to submit an
Initial Report, Annual Update Report,
or
No Changes Report
to BIS, pursuant to Part 783 of the APR, is a reportable location and may be subject to complementary access by the IAEA. The fact that a location is required to submit a report to BIS does not automatically trigger complementary access by the IAEA, although it may provide the basis for complementary access. Information that has been reported to BIS and included in the U.S. declaration will be analyzed by the IAEA before the IAEA makes a decision on whether or not to request complementary access to a particular location. In addition to providing the IAEA with complementary access to reportable locations, Part 784 of the APR provides that other locations specified by the IAEA may be subject to complementary access.

The specific purpose of complementary access is location dependent. In the case of uranium hard-rock mine locations, the purpose of complementary access is limited to enabling the IAEA to verify, on a selective basis, the absence of undeclared nuclear material and nuclear related activities. For all other locations subject to the APR (e.g., locations involved in reportable civil nuclear fuel cycle-related research and development or manufacturing activities, other locations specified by the IAEA), the purpose of complementary access is

limited to allowing the IAEA to resolve questions relating to the correctness and completeness of the information provided in the U.S. declaration or to resolve inconsistencies relating to that information. Complementary access normally will not be scheduled for the latter type of location until after the IAEA has provided the United States with an opportunity to clarify or resolve the question or inconsistency in the U.S. declaration.

Part 784 of the APR defines the role of BIS in notifying locations that will be subject to complementary access and acting as host to the IAEA Team during complementary access. A BIS Host team (augmented by other agency representatives, as appropriate) will accompany the IAEA inspectors during their activities at the location. In addition, a BIS Advance Team, upon receiving advance notice from the IAEA of complementary access, may deploy to the location to assist in preparing personnel and implementing appropriate measures to protect confidential business and other critical information.

Part 784 also provides specific information on the scope and conduct of complementary access, such as the kinds of activities that may be carried out by the IAEA Team (e.g., the circumstances under which the IAEA Team will be granted physical access to records and visual access to facilities). In addition, Part 784 describes the circumstances under which the Host Team will implement managed access measures during IAEA complementary access. Managed access will protect activities of direct national security significance to the United States, as well as locations or information associated with such activities. It is also designed to prevent the dissemination of proliferation sensitive information, to meet safety or physical protection requirements, and to protect proprietary or commercially sensitive information.

E. Part 785—Enforcement

Part 785 contains definitions of enforcement-related terms and describes the scope of the enforcement activities that are authorized under the APR, including the types of violations subject to the APR, administrative and criminal proceedings, hearings, representation, paperwork, summary decisions, discovery, subpoenas, matters protected against disclosure, procedural stipulations, extensions, post-hearing submissions, decisions, settlements, payment of assessments, and how to report a violation.

F. Part 786—Records and Recordkeeping

Part 786 describes the APR recordkeeping requirements, including the types of records that must be retained, required retention periods, acceptable media for record storage, records inspection procedures, accessibility of records, and disposal of records.

G. Part 787—Interpretations

Part 787 is reserved for future interpretations of Parts 781 through 786 of the APR and also for Subsidiary Arrangements to the Additional Protocol.

II. Summary of Public Comments on the July 25, 2008, APR Proposed Rule

One respondent submitted comments in response to the APR proposed rule that the Bureau of Industry and Security (BIS) published in the
Federal Register
July 25, 2008. Following is a summary of these comments, along with BIS's responses.

A. Section 783.1—Export Report and Import Confirmation Report

Comment:
The respondent is concerned that the reporting requirement in the APR proposed rule that applies to exports and certain imports of items listed in Supplement No. 3 to Part 783 of the APR would result in the disclosure of sensitive information (e.g., such reports may require that the internal components of enrichment equipment be disclosed).

Response:
The reporting of exports of items that are listed in Supplement No. 3 to Part 783 of the APR is subject to the regulatory authority of the Nuclear Regulatory Commission (NRC). Such items must be reported in accordance with the requirements specified by the NRC in a final rule that will address AP-related requirements involving the NRC's licensees. The NRC rule will provide a list of categories under which these items must be reported (i.e., a list of categories that will conform with those specified in Supplement No. 3 to Part 783 of the APR). The NRC should be contacted if assistance is needed to determine which (if any) of these categories would be appropriate for a specific item.

Furthermore, to avoid possible confusion concerning which agency (i.e., BIS or the NRC) has regulatory authority over exports that must be declared under the AP, section 783.1 of the APR final rule, as promulgated by BIS, has excluded export reporting requirements for items identified under Supplement No. 3 to Part 783—these reporting requirements were described under section 783.1(c) of the APR proposed rule. Instead, all exports of these items will be reported in accordance with the requirements to be specified in the NRC's final rule. Although this export reporting requirement will be administered by the NRC, rather than BIS, the NRC final rule is expected to require that all such reports be submitted to BIS for processing purposes only. BIS will conduct no substantive review of those reports.

Finally, information on imports of items listed in Supplement No. 3 to Part 783 of the APR must be provided to BIS only upon receipt of a specific request from the IAEA. Specifically, section 783.1(c) of the APR final rule (previously, section 783.1(d) in the APR proposed rule) provides that an
Import Confirmation Report
must be submitted to BIS only if BIS provides prior written notification to the owner/operator of a location. BIS will provide such notification when it receives a request from the IAEA for information concerning imports of items specified in Supplement No. 3.

B. Part 784—Complementary Access

Comment:
The respondent is concerned that the APR proposed rule does not provide a clear standard for determining what constitutes confidential business and other critical information, for purposes of complementary access, and does not indicate who should make this determination. As a remedy, the respondent recommends that the APR provide the operator of a location or site with the opportunity to identify such information.

Response:
The determination of what information constitutes proprietary or confidential business information for the purpose of complementary access to a location in accordance with the requirements of the APR is, in the first instance, the responsibility of the owner/operator of the location. The complementary access provisions in Part 784 of the APR describe a number of measures that give the owner/operator of the location an opportunity to provide input on this question.

First, section 784.1(d)(4) of the APR provides for the dispatch of an advance team, if time and circumstances permit, to provide administrative and logistical support for complementary access and to assist with the preparation for such access—this service will provide an opportunity for the advance team and the owner/operator of the location to discuss various means to ensure the protection of proprietary or confidential

business information, as well as ITAR-controlled technology.

Second, section 784.3(b)(iv) of the APR specifically protects personal, proprietary, and business confidential records from disclosure, except where the Host Team leader, after receiving input from the representatives of the location and consulting with other members of the Host Team, determines that access to certain of these records is both “appropriate and necessary to achieve the relevant purposes of complementary access,” as described in section 784.1(b)(1) or (b)(2) of the APR.

Third, section 784.3(d) of the APR provides that visual access by the IAEA Team to areas or parts of the location will be allowed, as agreed by the Host Team Leader, after the Host Team Leader has consulted with the organization's representative (e.g., the owner/operator of the location).

Additional measures to protect proprietary or business confidential information from disclosure are provided in section 784.3(f) of the APR, which describes the implementation of managed access measures (more details on the latter are provided in response to the following comment).

C. Section 781.1—Definitions of Terms Used in the Additional Protocol Regulations (APR)

Comment:
The respondent is concerned that, while the APR proposed rule defines “managed access,” it does not provide guidance on how managed access will be implemented, which may have the unintended consequence of compromising proprietary or commercially sensitive information during complementary access at a location or site.

Response:
The BIS Host Team will be responsible for implementing managed access procedures (e.g., the removal of sensitive papers from office spaces and the shrouding of sensitive displays, stores, and equipment) at those locations where it has lead agency authority in the event of complementary access. These procedures can and will vary, based upon the specific circumstances that exist at each location. The expectation is that in instances where BIS has lead agency authority during complementary access, BIS will work with each location to identify what needs to be protected and to devise a plan appropriate to the circumstances on the ground at that location. The APR do not require locations to develop a managed access plan in advance of notification of complementary access. In contrast to locations that are subject to the APR, sites that have been selected for IAEA safeguards (e.g., DOE or NRC licensed facilities) are required to have a managed access or security plan in place at all times. Such sites are much more likely to have long-term, standardized managed access procedures in place, than are locations subject to the APR. Since the respondent indicates that their site falls under the jurisdiction of the NRC, rather than BIS, they should seek guidance from the NRC regarding the use of managed access at their facility.

Rulemaking Requirements

1. This final rule has been determined to be significant for purposes of Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to, nor shall any person be subject to a penalty for failure to comply with a collection of information, subject to the Paperwork Reduction Act (PRA), unless that collection of information displays a currently valid OMB Control Number. This rule revises an existing collection of information subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). This collection has been approved by OMB under Control Number 0694-0135 (October 2008). The information collection contained in this final rule is part of a joint information collection by the Bureau of Industry and Security (BIS) of the Department of Commerce (DOC), in accordance with the Additional Protocol Regulations (APR) (15 CFR Parts 781-786), and the Nuclear Regulatory Commission (NRC), in accordance with amendments to its regulations in 10 CFR Part 75 and 10 CFR Part 110. A total of approximately 156 respondents are subject to the information collection requirements set forth in these BIS and NRC rules. These information collection requirements involve an estimated 3,357 total burden hours per annum at a total estimated cost of $139,142 per annum. The estimated total burden hours per annum include the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

Public comment is sought regarding: whether this collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; the accuracy of the burden estimate; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the collection of information, including through the use of automated collection techniques or other forms of information technology. Send comments regarding this burden estimate or any other aspects of this collection of information, including suggestions for reducing the burden, to Jasmeet Seehra, Office of Management and Budget (OMB), by e-mail to
Jasmeet_K._Seehra@omb.eop.gov
or by fax to (202) 395-7285, and to Willard Fisher, Regulatory Policy Division, Bureau of Industry and Security, Department of Commerce, as indicated in the
ADDRESSES
section of this rule.

The DOC's Office of Strategic Industries and Economic Security (SIES) conducted a study in order to obtain an estimate of the number of U.S. companies, organizations, and other U.S. persons that would be subject to reporting requirements under the BIS and NRC rules. This study, along with reviews conducted by the NRC on activities conducted by its licensees, indicated that potentially 119 locations and 10 sites at International Atomic Energy Agency (IAEA) Selected Facilities from the U.S. Eligible Facilities List licensed by the NRC (an estimated total of 129 respondents) will have reporting requirements pursuant to DOC and NRC regulations under the Additional Protocol.

The information collection requirements in the BIS and/or NRC rules consist of the following activities: (1) Additional Protocol (AP)-related reporting activities (e.g., activities involving the completion and submission of AP-related reports using forms contained in handbooks described below), (2) complementary access activities (e.g., activities involving IAEA inspection team access to locations and sites subject to AP-related reporting requirements), and (3) compliance review activities (e.g., activities involving BIS requests for information from persons and locations subject to the APR to determine compliance with APR reporting and recordkeeping requirements).

The estimated information collection burden associated with the AP-related reporting activities is expected to total 2,161 burden hours per year, at a total cost to respondents of $96,467 per annum, as follows: 2,161 burden hours × $37.20/hour (employee salaries) × 1.2 (20% overhead) = $96,467 estimated annual cost.

The estimated information collection burden associated with the complementary access activities is expected to total 1,153 burden hours per year, at a total cost to respondents of $32,070 per annum, as follows: First, 576.33 (burden hours per complementary access) × 2 (locations per calendar year) = 1,153 total burden

hours and, second, $16,035 (estimated cost per complementary access) × 2 (locations per calendar year) = $32,070 estimated annual cost.

The estimated information collection burden associated with the compliance review activities is expected to total 43 burden hours per year, at a total cost to respondents of $1,897 per annum, as follows: 25 requests × 1.7 hours = 42.5 burden hours × $37.20/hour (employee salaries) = $1,581 × 1.2 (20% overhead) = $1,897.20 annual estimated cost.

In addition, this final rule contains a recordkeeping requirement of 3 years, which involves a total estimated recordkeeping cost of $8,707.50 per annum, as follows: 1.5 square feet (average office space occupied by storage cabinet containing AP-related records) × $45/square foot (average cost of office space utilized for storage) × 129 reports (estimated number of locations required to submit AP-related reports) = $8,707.50 annual estimated cost.

Based on the estimates provided above, the annual burden hours for this information collection are expected to total 3,357 burden hours, as follows: 2,161 (estimated annual burden hours for AP-related reporting activities) + 1,153 (estimated annual burden hours for complementary access activities) + 43 (estimated annual burden hours for compliance review activities) = 3,357 total estimated annual burden hours for all AP-related information collection activities. (Note: The AP-related recordkeeping burden estimate is based upon cost of storage space rather than burden hours.)

Based on the estimates provided above, the annual cost of this information collection is expected to total $139,142, as follows: $96,467 (estimated annual cost for AP-related reporting activities) + $32,070 (estimated annual cost for complementary access activities) + $1,897.20 (estimated annual cost for compliance review activities) + $8,707.50 (estimated annual cost of AP-related recordkeeping requirements) = $139,142 total estimated annual cost for all AP-related information collection activities.

The AP requires the United States to declare to the IAEA a number of commercial nuclear and nuclear-related items, materials, and activities that may be used for peaceful nuclear purposes, but that also would be necessary elements for a nuclear weapons program. Executive Order (E.O.) 13458 of February 5, 2008, designates the DOC as the lead agency responsible for collecting data required under the AP from the commercial nuclear industry and other U.S. persons, except for data involving activities or locations subject to the licensing jurisdiction of the NRC. The E.O. designates the NRC as the lead agency responsible for collecting data required under the AP from those persons, locations, and sites subject to its licensing jurisdiction. In addition, National Security Policy Directive 57 (February 4, 2008) designated the DOC as the lead agency responsible for managing the collection and aggregation of all data reported to the U.S. Government for the purpose of preparing the U.S. AP declaration for submission to the IAEA.

BIS has developed two separate handbooks (one for locations and the other for sites of IAEA-selected facilities) that provide guidance on how to complete and submit the forms required under the APR. These handbooks identify the specific forms that must be included in each type of report package that must be submitted to BIS or the NRC. The specific forms in each handbook are identified below.

List of Forms Contained in Report Handbook for Locations

Form
Description of information collected on form

AP-1
Certification.

AP-2
Contact Information.

AP-3
Research and Development with U.S. Government (USG) Involvement.

AP-4
Research and Development without U.S. Government Involvement.

AP-5
Nuclear-related manufacturing, assembly and construction activities.

AP-6
Information on uranium hard rock mines.

AP-7
Information on concentration plants.

AP-8
Holdings of impure source materials.

AP-9
Imports and exports of impure source materials.

AP-10
Holdings of safeguards-exempted materials.

AP-11
Location of safeguards-terminated materials.

AP-12
Processing of safeguards-terminated waste materials.

AP-13
Exports of specified equipment and non-nuclear material.

AP-14
Imports of specified equipment and non-nuclear material.

AP-15
Supplemental information report.

AP-16
Continuation.

AP-17
No Changes Report.

List of Forms Contained in Report Handbook for Sites

Form
Description of information collected on form

AP-A
Certification.

AP-B
Contact Information.

AP-C
Building information.

AP-D
Research and Development with U.S. Government Involvement.

AP-E
Research and Development without U.S. Government Involvement

AP-F
Nuclear-related manufacturing, assembly and construction activities.

AP-G
Information on concentration plants.

AP-H
Holdings of impure source materials.

AP-I
Imports and exports of impure source materials.

AP-J
Holdings of safeguards-exempted materials.

AP-K
Location of safeguards-terminated materials.

AP-L
Processing of safeguards-terminated waste materials.

AP-M
Exports of specified equipment and non-nuclear material.

AP-N
Imports of specified equipment and non-nuclear material.

AP-O
Supplemental information report.

AP-P
Continuation.

AP-Q
No Changes Report.

3. This rule does not contain policies with Federalism implications as that term is defined in Executive Order 13132.

4. The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601
et seq
., generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to the notice and comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 553) or any other statute, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Under section 605(b) of the RFA, however, if the head of an agency certifies that a rule will not have a significant economic impact on a substantial number of small entities, the statute does not require the agency to prepare a regulatory flexibility analysis. Pursuant to section 605(b), the Chief Counsel for Regulations, Department of Commerce, certified to the Chief Counsel for Advocacy, Small Business Administration, that this final rule will not have a significant economic impact on a substantial number of small entities for the reasons explained below. Consequently, BIS has not prepared a regulatory flexibility analysis.

Small entities include small businesses, small organizations and small governmental jurisdictions. For purposes of assessing the impacts of this final rule on small entities, small entity is defined as: (1) A small business according to RFA default definitions for small business (based on SBA size standards), (2) a small governmental jurisdiction that is a government of a city, county, town, school district or special district with a population of less than 50,000, and (3) a small organization that is any not-for-profit enterprise which is independently owned and operated and is not dominant in its field. BIS has determined that this final rule will affect only the first and third categories of small entities (i.e., small businesses and small organizations).

The DOC's Office of Strategic Industries and Economic Security (SIES) conducted a study to obtain an estimate of the number of U.S. businesses, organizations, and other U.S. persons that would be subject to the information collection and recordkeeping requirements that BIS and the NRC would have to establish in order to meet U.S. obligations under the AP. This study, along with reviews conducted by the NRC on activities conducted by its licensees, indicated that potentially 119 locations and 10 sites at IAEA-Selected Facilities from the U.S. Eligible Facilities List licensed by the NRC (an estimated total of 129 respondents) would have reporting requirements pursuant to DOC and NRC regulations under the AP. The study indicated that the majority of the businesses or organizations most likely to be impacted by the entry-into-force of the AP would fall into the following categories: (1) Colleges and universities, (2) nuclear fuel manufacturers and utility companies, (3) mining and milling companies, and (4) corporate entities and contractors involved in research and development, manufacturing, assembly and construction activities. Although BIS estimates that the majority of these businesses and organizations are substantially sized entities, having more than 500 employees, BIS does not have sufficient information on these businesses and organizations to definitively characterize them as large entities.

The Small Business Administration (SBA) has established standards for what constitutes a small business, with respect to each of the Standard Industrial Classification (SIC) code categories. For example, a business in the uranium mining industry (NAICS Code: 212291, SIC Code: 1094), is considered by SBA to be a small business if it is independently owned and operated and not dominant in its field of operation and it employs 500 or fewer persons on a full-time basis, part-time, temporary, or other basis. The Mine Safety and Health Administration (MSHA) estimates that approximately 99.8% of the metal/non-metal mining industry would qualify as small businesses. However, many of the uranium mining and milling entities in the United States appear to be subsidiaries of large companies and BIS estimates that most of the small entities likely to be impacted by the entry-into-force of the AP will fall within the other categories of businesses and organizations identified in the SIES survey. In addition, BIS is not able to determine which SIC code categories apply to the other categories of businesses or organizations that are likely to be impacted by the entry-into-force of the AP. Therefore, for the purpose of assessing the impact of this final rule, BIS assumes that all of the 129 businesses and organizations likely to be affected are small entities.

Although this final rule will affect a substantial number of small entities (i.e., 129 businesses and organizations), the reporting, on-site verification (i.e., complementary access), compliance review, and recordkeeping requirements imposed by this rule will not have a significant economic impact on these entities.

First, this rule establishes reporting requirements in Part 783 of the APR that require U.S. industry and U.S. persons to submit data needed to prepare U.S. declarations to the IAEA in accordance with U.S. obligations under the AP. The U.S. declarations submitted under the AP will provide the IAEA with information about additional aspects of the U.S. civil nuclear fuel cycle, including the following: Mining and concentration of nuclear ores; nuclear-related equipment manufacturing, assembly, or construction; imports, exports, and other activities involving certain source material (i.e., source material that has not reached the composition and purity suitable for fuel fabrication or for being isotopically enriched); imports and exports of specified nuclear equipment and non-nuclear material; nuclear fuel cycle-related research and development activities not involving nuclear material; and other activities involving nuclear material not currently subject to the U.S.-IAEA Safeguards Agreement. The total estimated annual burden hours for these reporting requirements will be 2,161 hours and the total estimated annual cost will be $96,467, or $747.81 per respondent.

Second, this rule establishes on-site verification (i.e., complementary access) requirements in Part 784 of the APR. Any location required to submit an
Initial Report, Annual Update Report,
or

No Changes Report
to BIS, pursuant to Part 783 of the APR, will be treated as a reportable location under the APR and, as such, may be subject to complementary access by the IAEA. The fact that a location is required to submit a report to BIS will not automatically trigger complementary access by the IAEA, although it may provide the basis for complementary access. Information reported to BIS and included in the U.S. declaration will be analyzed by the IAEA before the IAEA decides whether or not to request complementary access to a particular location. In addition to providing the IAEA with complementary access to reportable locations, Part 784 of the APR provides that other locations specified by the IAEA may be subject to complementary access. The specific purpose of complementary access will be location dependent. Complementary access to uranium hard-rock mine locations will be limited to enabling the IAEA to verify, on a selective basis, the absence of undeclared nuclear material and nuclear related activities. For all other locations subject to the APR, the purpose of complementary access will be limited to allowing the IAEA to resolve questions relating to the correctness and completeness of the information provided in the U.S. declaration or to resolve inconsistencies relating to that information. The total estimated annual burden hours for these complementary access requirements will be 1,153 hours and the total estimated annual cost will be $32,070, or $248 per respondent.

Third, this rule establishes compliance review requirements in section 782.3 of the APR that authorize BIS to request information, periodically, from persons and locations subject to the APR to determine compliance with the APR reporting and recordkeeping requirements. Information requested may relate to nuclear fuel cycle research and development activities not involving nuclear material, nuclear-related manufacturing, assembly or construction activities, or uranium hard-rock mining activities as described in Part 783 of the APR. Any person or location subject to the APR and receiving such a request for information will be required to submit a response to BIS within 30 calendar days of receipt of the request. The total estimated annual burden hours for these compliance review requirements will be 43 hours and the total estimated annual cost will be $1,897.20, or $14.70 per respondent.

Fourth, this rule establishes recordkeeping provisions in Part 786 of the APR in accordance with which each person or location required to submit a report or correspondence under Parts 782 through 784 of the APR must retain all supporting materials and documentation used to prepare the report or correspondence. All such supporting materials and documentation must be retained by the person or location for three years from the due date of the applicable report or for three years from the date of submission of the applicable report, whichever will be later. Upon request by BIS, the person or location also will be required to permit access to and copying of any records related to compliance with the requirements of the APR. The total estimated annual cost for these APR recordkeeping requirements will be $8,707.50. (Note: Since the AP-related recordkeeping burden estimate is based upon the cost of storage space rather than the number of burden hours, this estimate does not include the total annual burden hours associated with the APR recordkeeping requirements.)

The total estimated annual burden hours required to implement the reporting, complementary access, compliance review, and recordkeeping requirements described above will be 3,357 burden hours and the total estimated annual cost will be $139,142. Although the primary impact of these new requirements will affect a substantial number of small entities (i.e., 129 businesses and organizations), the total economic impact on the affected entities (i.e., $139,142, per annum, for all of the affected entities) will not be significant. The average impact per entity will be $1,079 (i.e., $139,142 ÷ 129) per annum, which represents a small percentage of the net annual revenue of a typical small business. Since the requirements that this rule establishes will not impose a significant economic impact on a substantial number of small entities, BIS did not prepare a regulatory flexibility analysis for this rule.

Finally, the changes made by this rule should be viewed in light of the fact that BIS's discretion in formulating the reporting, complementary access, compliance review, and recordkeeping requirements of the APR is limited by the necessity of meeting U.S. obligations under the AP. The AP specifies the information that the United States must declare to the IAEA. In drafting the requirements and the forms for U.S. locations and U.S. persons to use, BIS has attempted to minimize the recordkeeping and reporting burden to ensure that only information that the United States must declare to the IAEA will have to be submitted to BIS.

List of Subjects

15 CFR Part 781
Nuclear fuel cycle-related activities, Imports, Treaties.

15 CFR Part 782
Nuclear fuel cycle-related activities, Reporting and recordkeeping requirements.

15 CFR Part 783
Nuclear fuel cycle-related activities, Imports, Reporting and recordkeeping requirements.

15 CFR Part 784
Nuclear fuel cycle-related activities, Imports, Reporting and recordkeeping requirements.

15 CFR Part 785
Enforcement.

15 CFR Part 786
Reporting and recordkeeping requirements.

Accordingly, in 15 CFR Chapter VII, new Subchapter D, titled “Additional Protocol Regulations” and consisting of Parts 781 through 799, is added to read as follows:

SUBCHAPTER D—ADDITIONAL PROTOCOL REGULATIONS

PART 781—GENERAL INFORMATION AND OVERVIEW OF THE ADDITIONAL PROTOCOL REGULATIONS (APR)

Sec.
781.1
Definitions of terms used in the Additional Protocol Regulations (APR).
781.2
Purposes of the Additional Protocol and APR.
781.3
Scope of the APR.
781.4
U.S. Government requests for information needed to satisfy the requirements of the APR or the Act.
781.5
Authority.

Authority:

United States Additional Protocol Implementation Act of 2006, Pub. Law No. 109-401, 120 Stat. 2726 (December 18, 2006) (to be codified at 22 U.S.C. 8101-8181); Executive Order 13458 (February 4, 2008).

§ 781.1
Definitions of terms used in the Additional Protocol Regulations (APR).
The following are definitions of terms used in Parts 781 through 786 of this subchapter (collectively known as the APR), unless otherwise noted:

Access Point of Contact (A-POC).
The individual at a location who will be notified by BIS immediately upon receipt of an IAEA request for complementary access to a location. BIS must be able to contact either the A-POC or alternate A-POC on a 24-hour basis. All interactions with the location for permitting and planning an IAEA

complementary access will be conducted through the A-POC or the alternate A-POC, if the A-POC is unavailable.

Act (The).
The United States Additional Protocol Implementation Act of 2006 (Pub. L. 109-401).

Additional Protocol.
The Protocol Additional to the Agreement between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in the United States of America, with Annexes, signed at Vienna on June 12, 1998 (T. Doc. 107-097), known as the Additional Protocol.

Additional Protocol Regulations (APR).
Those regulations contained in 15 CFR Parts 781 to 786 that were promulgated by the Department of Commerce to implement and enforce the Additional Protocol.

Agreement State.
Any State of the United States with which the U.S. Nuclear Regulatory Commission (NRC) has entered into an effective agreement under Subsection 274b of the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011
et seq.
).

Beneficiation.
The concentration of nuclear ores through physical or any other non-chemical methods.

Bureau of Industry and Security (BIS).
The Bureau of Industry and Security of the United States Department of Commerce, including Export Administration and Export Enforcement.

Complementary Access.
The exercise of the IAEA's access rights as set forth in Articles 4 to 6 of the Additional Protocol (see Part 784 of the APR for requirements concerning the scope and conduct of complementary access).

Complementary Access Notification.
A written announcement issued by BIS to a person who is subject to the APR (e.g., the owner, operator, occupant, or agent in charge of a location that is subject to the APR as specified in § 781.3(a) of the APR) that informs this person about an impending complementary access in accordance with the requirements of Part 784 of the APR.

Host Team.
The U.S. Government team that accompanies the International Atomic Energy Agency (IAEA) inspectors during complementary access, as provided for in the Additional Protocol and conducted in accordance with the provisions of the APR.

Host Team Leader.
The representative from the Department of Commerce who leads the Host Team during complementary access.

International Atomic Energy Agency (IAEA).
The United Nations organization, headquartered in Vienna, Austria, that serves as the official international verification authority for the implementation of safeguards agreements concluded pursuant to the Treaty on the Non-Proliferation of Nuclear Weapons (NPT).

ITAR.
The International Traffic in Arms Regulations (22 CFR Parts 120-130), which are administered by the Directorate of Defense Trade Controls, U.S. Department of State.

Location.
Any geographical point or area declared or identified by the United States or specified by the IAEA (see “
location specified by the IAEA
,” as defined in this section).

Location-specific environmental sampling.
The collection of environmental samples (e.g., air, water, vegetation, soil, smears) at, and in the immediate vicinity of, a location specified by the IAEA for the purpose of assisting the IAEA to draw conclusions about the absence of undeclared nuclear material or nuclear activities at the specified location.

Location-specific subsidiary arrangement.
An agreement that sets forth procedures, which have been mutually agreed upon by the United States and the IAEA, for conducting complementary access at a specific reportable location. (Also see definition of
“subsidiary arrangement”
in this section.)

Location specified by the IAEA.
A location that is selected by the IAEA to:

(1) Verify the absence of undeclared nuclear material or nuclear activities; or

(2) Obtain information that the IAEA needs to amplify or clarify information contained in the U.S. declaration.

Managed access.
Procedures implemented by the Host Team during complementary access to prevent the dissemination of proliferation sensitive information, to meet safety or physical protection requirements, to protect proprietary or commercially sensitive information, or to protect activities of direct national security significance to the United States, including information associated with such activities, in accordance with the Additional Protocol.

National Security Exclusion (NSE).
The right of the United States, as specified under Article 1.b of the Additional Protocol, to exclude the application of the Additional Protocol when the United States Government determines that its application would result in access by the IAEA to activities of direct national security significance to the United States or to locations or information associated with such activities.

NRC.
The U.S. Nuclear Regulatory Commission.

Nuclear fuel cycle-related research and development.
Those activities that are specifically related to any process or system development aspect of any of the following:

(1) Conversion of nuclear material;

(2) Enrichment of nuclear material;

(3) Nuclear fuel fabrication;

(4) Reactors;

(5) Critical facilities;

(6) Reprocessing of nuclear fuel; or

(7) Processing (not including repackaging or conditioning not involving the separation of elements, for storage or disposal) of intermediate or high-level waste containing plutonium, high enriched uranium or uranium-233.

Nuclear Material.
Any source material or special fissionable material, as follows.

(1)
Source material
means uranium containing the mixture of isotopes occurring in nature; uranium depleted in the isotope 235; thorium; any of the foregoing in the form of metal, alloy, chemical, or concentrate. The term source material shall not be interpreted as applying to ore or ore residue.

(2)
Special fissionable material
means plutonium 239; uranium 233; uranium enriched in the isotopes 235 or 233; any material containing one or more of the foregoing, but the term special fissionable material does not include source material.

Person.
Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, any State or any political subdivision thereof, or any political entity within a State, any foreign government or nation or any agency, instrumentality or political subdivision of any such government or nation, or other entity located in the United States.

Report Point of Contact (R-POC).
A person whom BIS may contact for the purposes of clarification of information provided in report(s) and for general information. The R-POC need not be the person who prepares the forms or certifies the report(s) for submission to BIS, but should be familiar with the content of the reports.

Reportable Location.
A location that must submit an
Initial Report, Annual Update Report,
or
No Changes Report
to BIS, in accordance with the provisions of the APR, is considered to be a “reportable location” with reportable activities (see § 783.1(a) and (b) of the APR for nuclear fuel cycle-related activities subject to these reporting requirements).

Reporting Code.
A unique identification used for identifying a location where one or more nuclear fuel cycle-related activities subject to the

reporting requirements of the APR are located.

Subsidiary Arrangement (or General Subsidiary Arrangement).
An agreement that sets forth procedures, which have been mutually agreed upon by the United States and the IAEA, for implementing the Additional Protocol, irrespective of the location. (Also see the definition of
“location-specific subsidiary arrangement”
in this section.)

United States.
Means the several States of the United States, the District of Columbia, and the commonwealths, territories, and possessions of the United States, and includes all places under the jurisdiction or control of the United States, including any of the places within the provisions of paragraph (41) of section 40102 of Title 49 of the United States Code, any civil aircraft of the United States or public aircraft, as such terms are defined in paragraphs (1) and (37), respectively, of section 40102 of Title 49 of the United States Code, and any vessel of the United States, as such term is defined in section 3(b) of the Maritime Drug Enforcement Act, as amended (section 1903(b) of Title 46 App. of the United States Code).

Uranium Hard-Rock Mine.
Means any of the following:

(1) An area of land from which uranium is extracted in non-liquid form;

(2) Private ways and roads appurtenant to such an area; and

(3) Lands, excavations, underground passageways, shafts, slopes, tunnels and workings, structures, facilities, equipment, machines, tools, or other property including impoundments, retention dams, and tailings ponds, on the surface or underground, used in, or to be used in, or resulting from, the work of extracting such uranium ore from its natural deposits in non-liquid form, or if in liquid form, with workers underground, or used in, or to be used in, the concentration of such uranium ore, or the work of the uranium ore.

Uranium Hard-Rock Mine (Closed-down).
A uranium hard-rock mine where ore production has ceased and the mine or its infrastructure is not capable of further operation.

Uranium Hard-Rock Mine (Operating).
A uranium hard-rock mine where ore is produced on a routine basis.

Uranium Hard-Rock Mine (Suspended).
A uranium hard-rock mine where ore production has ceased, but the mine and its infrastructure are capable of further operation.

U.S. declaration.
The information submitted by the United States to the IAEA in fulfillment of U.S. obligations under the Additional Protocol.

United States Government locations.
Those locations owned and operated by a U.S. Government agency (including those operated by contractors to the agency), and those locations leased to and operated by a U.S. Government agency (including those operated by contractors to the agency). United States Government locations do not include locations owned by a U.S. Government agency and leased to a private organization or other entity such that the private organization or entity may independently decide the purposes for which the locations will be used.

Wide-area environmental sampling.
The collection of environmental samples (e.g., air, water, vegetation, soil, smears) at a set of locations specified by the IAEA for the purpose of assisting the IAEA to draw conclusions about the absence of undeclared nuclear material or nuclear activities over a wide area.

You.
The term “you” or “your” means any person. With regard to the reporting requirements of the APR, “you” refers to persons that have an obligation to report certain activities under the provisions of the APR. (Also see the definition of
“person”
in this section.)

§ 781.2
Purposes of the Additional Protocol and APR.

(a)
General.
The Additional Protocol is a supplement to the existing U.S.-IAEA Safeguards Agreement, which entered into force in 1980. It provides the IAEA with access to additional information about civil nuclear and nuclear-related items, materials, and activities and with physical access to reportable locations where nuclear facilities, materials, or ores are located (to ensure the absence of undeclared nuclear material and activities) and to other reportable locations and locations specified by the IAEA (to resolve questions or inconsistencies related to the U.S. Declaration). The Additional Protocol is based upon and is virtually identical to the IAEA Model Additional Protocol (see IAEA Information Circular, INFCIRC/540, at
http://www.iaea.org/Publications/Documents/Infcircs/index.html
), except that it excludes IAEA access to activities with direct national security significance to the United States, or to locations or information associated with such activities, and provides for managed access in connection with those same activities and to locations or information associated with those activities.

(b)
Purposes of the Additional Protocol.
The Additional Protocol is designed to enhance the effectiveness of the U.S.-IAEA Safeguards Agreement by providing the IAEA with information about aspects of the U.S. civil nuclear fuel cycle, including: Mining and concentration of nuclear ores; nuclear-related equipment manufacturing, assembly, or construction; imports, exports, and other activities involving certain source material (i.e., source material that has not reached the composition and purity suitable for fuel fabrication or for being isotopically enriched); imports and exports of specified nuclear equipment and non-nuclear material; nuclear fuel cycle-related research and development activities not involving nuclear material; and other activities involving nuclear material not currently subject to the U.S.-IAEA Safeguards Agreement (e.g., nuclear material that has been exempted from safeguards pursuant to paragraph 37 of INFCIRC/153 (Corrected) June 1972).

(c)
Purposes of the Additional Protocol Regulations.
To fulfill certain obligations of the United States under the Additional Protocol, BIS has established the APR, which require the reporting of information to BIS (as described in Parts 783 and 784 of the APR) from all persons and locations in the United States (as described in § 781.3(a) of the APR) with reportable activities. This information, together with information reported to other U.S. Government agencies and less any information to which the U.S. Government applies the national security exclusion, is aggregated into a U.S. declaration, which is submitted annually to the IAEA. The APR also provide for complementary access at such locations in accordance with the provisions in Part 784 of the APR.

§ 781.3
Scope of the APR.
The Additional Protocol Regulations or APR implement certain obligations of the United States under the Protocol Additional to the Agreement Between the United States of America and the International Atomic Energy Agency Concerning the Application of Safeguards in the United States of America, known as the Additional Protocol.

(a)
Persons and locations subject to the APR.
The APR, promulgated by the Department of Commerce, shall apply to all persons and locations in the United States,
except
:

(1) Locations that are subject to the regulatory authority of the Nuclear Regulatory Commission (NRC), pursuant to the NRC's regulatory jurisdiction under the Atomic Energy Act of 1954, as amended (42 U.S.C. 2011
et seq.
); and

(2) The following
United States Government locations
(see definition in § 781.1 of the APR):

(i) Department of Energy locations;

(ii) Department of Defense locations;

(iii) Central Intelligence Agency locations; and

(iv) Department of State locations.

(b)
Activities subject to the APR.
The activities that are subject to the recordkeeping and reporting requirements described in the APR are found in Parts 783 and 784 of this subchapter (APR).

§ 781.4
U.S. Government requests for information needed to satisfy the requirements of the APR or the Act.
From time-to-time, one or more U.S. Government agencies (i.e., the Department of Defense, the Department of Energy, the NRC, or BIS) may contact a location to request information that the U.S. Government has determined to be necessary to satisfy certain requirements of the APR or the Act (e.g., clarification requests or vulnerability assessments). If the manner of providing such information is not specified in the APR, the agency in question will provide the location with appropriate instructions.

§ 781.5
Authority.
The APR implement certain provisions of the Additional Protocol under the authority of the Additional Protocol Implementation Act of 2006 (Pub. L. 109-401, 120 Stat. 2726 (December 18, 2006)). In Executive Order 13458 of February 4, 2008, the President delegated authority to the Department of Commerce to promulgate regulations to implement the Act, and consistent with the Act, to carry out appropriate functions not otherwise assigned in the Act, but necessary to implement certain declaration and complementary access requirements of the Additional Protocol and the Act.

PART 782—GENERAL INFORMATION REGARDING REPORTING REQUIREMENTS AND PROCEDURES

Sec.
782.1
Overview of reporting requirements under the APR.
782.2
Persons responsible for submitting reports required under the APR.
782.3
Compliance review.
782.4
Assistance in determining your obligations.
782.5
Where to obtain APR report forms.
782.6
Where to submit reports.

Authority:

United States Additional Protocol Implementation Act of 2006, Pub. Law No. 109-401, 120 Stat. 2726 (December 18, 2006) (to be codified at 22 U.S.C. 8101-8181); Executive Order 13458 (February 4, 2008).

§ 782.1
Overview of reporting requirements under the APR.

Part 783 of the APR describes the reporting requirements for certain activities specified in the APR. For each activity specified in Part 783, BIS may require that an
Initial Report
, an
Annual Update Report
, a
No Changes Report
, an
Import Confirmation Report
, a
Supplemental Information Report
, or an
Amended Report
be submitted to BIS. In addition, persons subject to the APR may be required to provide BIS with information needed to assist the IAEA in clarifying or verifying information specified in the U.S. declaration or in clarifying or amplifying information concerning the nature of the activities conducted at a location (see §§ 783.1(d) and 784.1(b)(2) of the APR for requirements concerning a
Supplemental Information Report
). If, after reviewing Part 783 of the APR, you determine that you are subject to one or more APR reporting requirements, you may obtain the appropriate forms by contacting BIS (see § 782.5 of the APR). In addition, forms may be downloaded from the Internet at
http://www.ap.gov
.

§ 782.2
Persons responsible for submitting reports required under the APR.
The owner, operator, or senior management official of a location subject to the reporting requirements in Part 783 of the APR is responsible for the submission of all required reports and documents in accordance with all applicable provisions of the APR.

§ 782.3
Compliance review.
Periodically, BIS will request information from persons and locations subject to the APR to determine compliance with the reporting and recordkeeping requirements set forth herein. Information requested may relate to nuclear fuel cycle research and development activities not involving nuclear material, nuclear-related manufacturing, assembly or construction activities, or uranium hard-rock mining activities as described in Part 783 of the APR. Any person or location subject to the APR and receiving such a request for information must submit a response to BIS within 30 calendar days of receipt of the request. If the requested information cannot be provided to BIS, the response must fully explain the reason why such information cannot be provided. If additional time is needed to collect the requested information, the person or location should request an extension of the submission deadline, before the expiration of the 30-day time period set by BIS, and include an explanation for why an extension is needed. BIS will grant only one extension of the submission deadline. The maximum period of time for which BIS will grant an extension will be 30 days. Failure to respond to this request could lead to an investigation of the person's or location's reporting and recordkeeping procedures under the APR.

§ 782.4
Assistance in determining your obligations.

(a)
Determining if your activity is subject to reporting requirements.
(1) If you need assistance in determining whether or not your activity is subject to the APR's reporting requirements, submit your written request for an activity determination to BIS. Such requests may be sent to BIS via facsimile to (202) 482-1731, e-mailed to
apdr@bis.doc.gov,
or hand delivered, submitted by courier, or mailed to BIS, in hard copy, to the following address: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, Attn: AP Activity Determination, 14th Street and Pennsylvania Avenue, NW., Room 4515, Washington, DC 20230. Your activity determination request should include the information indicated in paragraph (a)(2) of this section to ensure an accurate determination. Also include any additional information that would be relevant to the activity described in your request. If you are unable to provide all of the information required in paragraph (a)(2) of this section, you should include an explanation identifying the reasons or deficiencies that preclude you from supplying the information. If BIS cannot make a determination based upon the information submitted, BIS will return the request to you and identify the additional information that is necessary to complete an activity determination. BIS will provide a written response to your activity determination request within 10 business days of receipt of the request.

(2) You must include the following information when submitting an activity determination request to BIS:

(i) Date of your request;

(ii) Name of your organization and complete street address;

(iii) Point of contact for your organization;

(iv) Phone and facsimile number for your point of contact;

(v) E-mail address for your point of contact, if you want BIS to provide an acknowledgment of receipt via e-mail; and

(vi) Description of your activity in sufficient detail as to allow BIS to make an accurate determination.

(b)
Other inquiries.
If you need assistance in interpreting the provisions of the APR or need assistance with APR report forms or complementary access issues, contact BIS's Treaty Compliance Division by phone at (202) 482-1001. If you require a written response from BIS, submit a detailed request to BIS that explains your question, issue, or request. Send the request to the address or facsimile included in paragraph (a) of this section, or e-mail the request to
apqa@bis.doc.gov.
To ensure that your request is properly routed, include the notation, “ATTENTION: APR Advisory Request,” on your submission to BIS.

§ 782.5
Where to obtain APR report forms.

Report forms required by the APR may be downloaded from the Internet at
http://www.ap.gov.
You also may obtain these forms by contacting: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, Attn: Forms Request, 14th Street and Pennsylvania Avenue, NW., Room 4515, Washington, DC 20230, Telephone: (202) 482-1001.

§ 782.6
Where to submit reports.
Reports required by the APR must be sent to BIS via facsimile to (202) 482-1731 or hand delivered , submitted by courier, or mailed to BIS, in hard copy, to the following address: Treaty Compliance Division, Bureau of Industry and Security, U.S. Department of Commerce, Attn: AP Reports, 14th Street and Pennsylvania Avenue, NW., Room 4515, Washington, DC 20230, Telephone: (202) 482-1001. Specific types of reports and due dates are outlined in Supplement No. 1 to Part 783 of the APR.

PART 783—CIVIL NUCLEAR FUEL CYCLE-RELATED ACTIVITIES NOT INVOLVING NUCLEAR MATERIALS

Sec.
783.1
Reporting requirements.
783.2
Amended reports.
783.3
Reports containing information determined by BIS not to be required by the APR.
783.4
Deadlines for submission of reports and amendments.
Supplement No. 1 to Part 783—Deadlines for Submission of Reports and Amendments

Supplement No. 2 to Part 783—Manufacturing Activities

Supplement No. 3 to Part 783—List of Specified Equipment and Non-Nuclear Material for the Reporting of Imports

Authority:

United States Additional Protocol Implementation Act of 2006, Pub. Law No. 109-401, 120 Stat. 2726 (December 18, 2006) (to be codified at 22 U.S.C. 8101-8181); Executive Order 13458 (February 4, 2008).

§ 783.1
Reporting requirements.

(a)
Initial report.
You must submit an
Initial Report
to BIS, no later than December 1, 2008 (see Supplement No. 1 to this Part), if you were engaged in any of the civil nuclear fuel cycle-related activities described in this paragraph (a) on October 31, 2008 or you were engaged in any such activities involving uranium hard-rock mines, including those that were closed down during calendar year 2008, (up to and including October 31, 2008). If you commenced any of the civil nuclear fuel cycle-related activities described in this paragraph (a) after October 31, 2008, you must submit an
Initial Report
on these activities to BIS no later than January 31 of the year following the calendar year in which the activities commenced (see Supplement No. 1 to this Part). You may report these activities as part of your
Annual Update Report
, in lieu of submitting a separate
Initial Report
, if you also have an
Annual Update Report
requirement that applies to the same location and covers the same reporting period (see paragraph (b) of this section). In order to satisfy the
Initial Report
requirements under this paragraph (a), you must complete and submit to BIS Form AP-1, Form AP-2, and other appropriate Forms, as provided in this paragraph (a).

(1)
Research and development activities not involving nuclear material.
You must report to BIS any of the civil nuclear fuel cycle-related research and development activities identified in paragraphs (a)(1)(i) and (a)(1)(ii) of this section. Activities subject to these APR reporting requirements include research and development activities related to safe equipment operations for a nuclear fuel cycle-related activity, but do not include activities related to theoretical or basic scientific research or to research and development on industrial radioisotope applications, medical, hydrological and agricultural applications, health and environmental effects and improved maintenance.

(i) You must complete Form AP-3 and submit it to BIS, as provided in § 782.6 of the APR, if you conducted any civil nuclear fuel cycle-related research and development activities defined in § 781.1 of the APR that:

(A) Did not involve nuclear material; and

(B) Were funded, specifically authorized or controlled by, or conducted on behalf of, the United States.

(ii) You must complete Form AP-4 and submit it to BIS, as provided in § 782.6 of the APR, if you conducted any civil nuclear fuel cycle-related research and development activities defined in § 781.1 of the APR that:

(A) Did not involve nuclear material;

(B) Were specifically related to enrichment, reprocessing of nuclear fuel, or the processing of intermediate or high-level waste containing plutonium, high enriched uranium or uranium-233 (where “processing” involves the separation of elements); and

(C) Were not funded, specifically authorized or controlled by, or conducted on behalf of, the United States.

(2)
Civil nuclear-related manufacturing, assembly or construction activities.
You must complete Form AP-5 and submit it to BIS, as provided in § 782.6 of the APR, if you engaged in any of the activities specified in Supplement No. 2 to this Part.

(3)
Uranium hard-rock mining and ore beneficiation activities.
You must complete Form AP-6 and submit it to BIS, as provided in § 782.6 of the APR, if your location is either a uranium hard-rock mine or an ore beneficiation plant that was in operating or suspended status (see § 781.1 of the APR for the definitions of “uranium hard-rock mine” and uranium hard-rock mines in “operating,” “suspended,” or “closed-down” status).

(i) The
Initial Report
requirement for calendar year 2008 applies to:

(A) Uranium hard-rock mines or ore beneficiation plants that were in operating or suspended status on October 31, 2008; and

(B) Uranium hard-rock mines that have changed from operating or suspended status to closed-down status during calendar year 2008 (up to and including October 31, 2008). Mines that were closed down prior to calendar year 2008 and that remain in closed-down status do not have a reporting requirement.

(ii) You are required to submit an
Initial Report
to BIS, for any calendar year that follows calendar year 2008, only if you commenced operations at a uranium hard-rock mine or an ore beneficiation plant during the previous calendar year (e.g., the commencement of operations would include, but not be limited to, the resumption of operations at a mine that was previously in “closed-down” status). Otherwise, see the
Annual Update Report and No Changes Report
requirements in paragraphs (b)(1) or (b)(2) of this section. For example, you must submit an
Annual Update Report
to indicate the closed-down status of any uranium hard-rock mine that was indicated in your most recent report to be in either operating or suspended status, but at

which you ceased operations during the previous calendar year.

(b)
Annual reporting requirements.
You must submit either an
Annual Update Report
or a
No Changes Report
to BIS, as provided in § 782.6 of the APR, if, during the previous calendar year, you continued to engage in civil nuclear fuel cycle-related activities at a location for which you submitted an
Initial Report
to BIS in accordance with the APR reporting requirements described in paragraph (a) of this section.

(1)
Annual Update Report.
You must submit an
Annual Update Report
to BIS if you have updates or changes to report concerning your location's activities during the previous calendar year. When preparing your
Annual Update Report
, you must complete the same report forms that you used for submitting your
Initial Report
on these activities. However, additional report forms will be required if your location engaged in any civil nuclear fuel cycle-related activities described in paragraph (a) of this section that you did not previously report to BIS. The appropriate report forms for each type of activity that must be reported under the APR are identified in paragraphs (a)(1) through (a)(3) of this section. You must submit your
Annual Update Report
to BIS no later than January 31 of the year following any calendar year in which the activities took place or there were changes to previously “reported” activities (see Supplement No. 1 to this Part).

(2)
No Changes Report.
You may submit a
No Changes Report
, in lieu of an
Annual Update Report
, if you have no updates or changes concerning your location's activities (except the certifying official and dates signed and submitted) since your most recent report of activities to BIS. In order to satisfy the reporting requirements under this paragraph (b)(2), you must complete Form AP-16 and submit it to BIS, as provided in § 782.6 of the APR, no later than January 31 of the year following any calendar year in which there were no changes to previously “reported” activities or location information (see Supplement No. 1 to this Part).

(3)
Additional guidance on annual reporting requirements.
(i) If your
Initial Report
or your most recent
Annual Update Report
for a location indicates that all civil nuclear fuel cycle-related activities described therein have ceased at that location, and no other reportable activities have occurred during the previous calendar year, then you do not have a reporting requirement for the location under paragraph (b) of this section.

(ii) If your location ceases to engage in activities subject to the APR reporting requirements described in paragraph (a) of this section, and you have not previously reported this to BIS, you must submit an
Annual Update Report
covering the calendar year in which you ceased to engage in such activities.

(iii) Closed-down mines should be reported only once.

(c)
Import Confirmation Report.
You must complete Forms AP-1, AP-2 and AP-14 for each import of equipment or non-nuclear material identified in Supplement No. 3 to this Part and submit these forms to BIS, as provided in § 782.6 of the APR, if BIS sends you written notification requiring that you provide information concerning imports of such equipment and non-nuclear material. These Forms must be submitted within 30 calendar days of the date that you receive written notification of this requirement from BIS (see Supplement No. 1 to this Part). BIS will provide such notification when it receives a request from the IAEA for information concerning imports of this type of equipment or non-nuclear material. The IAEA may request this information to verify that you received specified equipment or non-nuclear material that was shipped to you by a person, organization, or government from a foreign country.

(d)
Supplemental Information Report.
You must complete Forms AP-1, AP-2 and AP-15 and submit them to BIS, as provided in § 782.6 of the APR, if BIS sends you written notification requiring that you provide information about the activities conducted at your location, insofar as relevant for the purpose of safeguards. These Forms must be submitted within 15 calendar days of the date that you receive written notification of this requirement from BIS (see Supplement No. 1 to this Part). BIS will provide such notification only if the IAEA specifically requests amplification or clarification concerning any information provided in the U.S. Declaration based on your report(s).

(e)
Reportable location.
A location that must submit an
Initial Report, Annual Update Report, or No Changes Report
to BIS, pursuant to the requirements of this section, is considered to be a reportable location with declared activities.

§ 783.2
Amended reports.

In order for BIS to maintain accurate information on previously submitted reports, including information necessary for BIS to facilitate complementary access notifications or to communicate reporting requirements under the APR,
Amended Reports
are required under the circumstances described in paragraphs (a), (b), and (d) of this section. This section applies only to changes affecting
Initial Reports
and
Annual Update Reports
that were submitted to BIS in accordance with the requirements of § 783.1(a) and (b) of the APR. The specific report forms that you must use to prepare and submit an
Amended Report
will depend upon the type of information that you are required to provide, pursuant to this section.

(a)
Changes to activity information.
You must submit an
Amended Report
to BIS within 30 calendar days of the time that you discover an error or omission in your most recent
Initial Report
or
Annual Update Report
that involves information concerning an activity subject to the reporting requirements described in § 783.1(a) or (b) of the APR. Use Form AP-1, and any applicable report forms indicated for the activities identified in § 783.1(a) of the APR, to prepare your
Amended Report.
Submit your
Amended Report
to BIS, as provided in § 782.6 of the APR.

(b)
Changes to organization and location information that must be maintained by BIS.
(1)
Internal organization changes.
You must submit an
Amended Report
to BIS within 30 calendar days of any change in the following information (use Form AP-1 to prepare your
Amended Report
and submit it to BIS, as provided in § 782.6 of the APR):

(i) Name of report point of contact (R-POC), including telephone number, facsimile number, and e-mail address;

(ii) Name(s) of complementary access point(s) of contact (A-POC), including telephone number(s), facsimile number(s) and e-mail address(es);

(iii) Organization name;

(iv) Organization mailing address;

(v) Location owner, including telephone number, and facsimile number; or

(vi) Location operator, including telephone number, and facsimile number.

(2)
Change in ownership of organization.
You must submit an
Amended Report
to BIS if you sold a reportable location or if your reportable location went out of business since submitting your most recent
Initial Report, Annual Update Report,
or
No Changes Report
to BIS. You must also submit an
Amended Report
to BIS if you purchased a reportable location that submitted an
Initial Report, Annual Update Report,
or
No Changes Report
to BIS for the most recent reporting period, as specified in § 783.1(a) and (b) of the APR. Submit your
Amended Report
to BIS, as provided in § 782.6 of the APR,

either before the effective date of the change in ownership or within 30 calendar days after the effective date of the change.

(i) The following information must be included in an
Amended Report
submitted to BIS by an organization that is selling or that has sold a reportable location (use Forms AP-1 and AP-16 to prepare your
Amended Report
—address specific details regarding the sale of a reportable location in Form AP-16):

(A) Name of seller (i.e., name of the organization selling a reportable location);

(B) Reporting Code (this code will be assigned to your location and reported to you by BIS after receipt of your
Initial Report
);

(C) Name of purchaser (i.e., name of the new organization/owner purchasing a reportable location) and name and address of contact person for the purchaser, if known;

(D) Date of ownership transfer or change;

(E) Additional details on the sale of the reportable location relevant to ownership or operational control over any portion of the reportable location (e.g., whether the entire location or only a portion of the reportable location has been sold to a new owner); and

(F) Details regarding whether the new owner of a reportable location will submit the next report for the entire calendar year in which the ownership change occurred, or whether the previous owner and new owner will submit separate reports for the periods of the calendar year during which each owned the reportable location.

(ii) The following information must be included in an
Amended Report
submitted to BIS by an organization that is purchasing or that has purchased a reportable location (use Forms AP-1 and AP-2 to prepare your
Amended Report
):

(A) Name of purchaser (i.e., name of the new organization/owner purchasing a reportable location) and name and address of contact person for the purchaser;

(B) Details on the purchase of the reportable location relevant to ownership or operational control over any portion of the reportable location (e.g., whether the purchaser intends to purchase and to maintain operational control over the entire location or only a portion of the reportable location); and

(C) Details on whether the purchaser intends to continue existing civil nuclear fuel cycle-related activities at the reportable location or to cease such activities during the current reporting period.

(iii) If the new owner of a reportable location is responsible for submitting a report that covers the entire calendar year in which the ownership change occurred, the new owner must obtain and maintain possession of the location's records covering the entire year, including those records for the period of the year during which the previous owner still owned the property.

Note 1 to § 783.2(b):

Amended Reports
that are submitted to identify changes involving internal organization information or changes in ownership are used only for internal U.S. Government purposes and are not forwarded to the IAEA. BIS uses the information it obtains from
Amended Reports
to update contact information for internal oversight purposes and for IAEA complementary access notifications.

Note 2 to § 783.2(b):

For ownership changes, the reportable location will maintain its original Reporting Code, unless the location is sold to multiple owners, at which time BIS will assign a new Reporting Code.

(c)
Non-substantive changes.
If you discover one or more non-substantive typographical errors in your
Initial Report
or
Annual Update Report,
after submitting the report to BIS, you are not required to submit an
Amended Report
to BIS. Instead, you may correct these errors when you submit your next
Annual Update Report
to BIS.

(d)
Amendments related to complementary access.
If you are required to submit an
Amended Report
to BIS following the completion of complementary access (see Part 784 of the APR), BIS will notify you, in writing, of the information that must be amended pursuant to § 784.6 of the APR. Complete and submit Form AP-1 (organization information) and/or the specific report forms required by section 783.1(a) or (b) of the APR, according to the type(s) of activities for which information is being requested. You must submit your
Amended Report
to BIS, as provided in § 782.6 of the APR, no later than 30 calendar days following your receipt of BIS's post complementary access letter.

(e)
Option for submitting amended reports in letter form.
If you are required to submit an
Amended Report
to BIS, pursuant to paragraph (a), (b), or (d) of this section, BIS may permit you to submit your report in the form of a letter that contains all of the corrected information required under this section. Your letter must be submitted to BIS, at the address indicated in § 782.6 of the APR, no later than the applicable due date(s) indicated in this section (also see Supplement No. 1 to this Part).

§ 783.3
Reports containing information determined by BIS not to be required by the APR.
If you submit a report and BIS determines that none of the information contained therein is required by the APR, BIS will not process the report and will notify you, either electronically or in writing, explaining the basis for its decision. BIS will not maintain any record of the report. However, BIS will maintain a copy of the notification.

§ 783.4
Deadlines for submission of reports and amendments.
Reports and amendments required under this Part must be postmarked by the appropriate date identified in Supplement No. 1 to this Part 783. Required reports and amendments include those identified in paragraphs (a) through (g) of this section.

(a)
Initial Report:
Submitted by a location that commenced one or more of the civil nuclear fuel cycle-related activities described in § 783.1(a) of the APR during the previous calendar year, but that has not yet reported such activities to BIS. However,
Initial Reports
that are submitted to BIS during calendar year 2008 must describe only those activities in which you are engaged as of October 31, 2008,
except that
the description of activities involving uranium hard-rock mines must include any such mines that were closed down during calendar year 2008 (up to and including October 31, 2008), as well as mines that were in either operating or suspended status on October 31, 2008 (see § 783.1(a)(3)(i) of the APR).

(b)
Annual Update Report:
Submitted by a reportable location—this report describes changes to previously reported (i.e., declared) activities and any other reportable civil nuclear fuel cycle-related activities that took place at the location during the previous calendar year.

(c)
No Changes Report:
Submitted by a reportable location, in lieu of an
Annual Update Report,
when there are no updates or changes to any information, excluding the certifying official and dates signed and submitted, since the previous report submitted by that location.

(d)
Import Confirmation Report:
Submitted in response to a written notification from BIS, following a specific request by the IAEA.

(e)
Supplemental Information Report:
Submitted in response to a written notification from BIS, following a specific request by the IAEA.

(f)
Amended Report:
Submitted by a reportable location to report certain changes affecting the location's most

recent
Initial Report
or
Annual Update Report.

Supplement No. 1 to Part 783

Deadlines for Submission of Reports and Amendments

Reports
Applicable forms
Due dates

Initial Report

Forms AP-1 and AP-2 and:
—AP-3 or AP-4 for R&D activities;
—AP-5 for civil nuclear-related manufacturing, assembly or construction; and
—AP-6 for mining and ore beneficiation

December 1, 2008 for:
(1) Any activities in which you were engaged on October 31, 2008 and
(2) uranium hard-rock mines that have changed from operating or suspended status to closed-down status during calendar year 2008 (up to and including October 31, 2008).

For activities commencing after October 31, 2008,
Initial Reports
must be submitted no later than January 31 of the year following any calendar year in which the activities began,
unless
you are required to submit an
Annual Update Report
because of on-going previously “reported” activities at the same location—in that case, you may include the new activities in your
Annual Update Report,
instead of submitting a separate
Initial Report
.

Annual Update Report

Forms AP-1 and AP-2 and:
—AP-3 or AP-4 for R&D activities;
—AP-5 for civil nuclear-related manufacturing, assembly or construction; and
—AP-6 for mining and ore beneficiation

January 31 of the year following any calendar year in which the activities took place or there were changes to previously “reported” activities.

No Changes Report
Form AP-17
January 31 of the year following any calendar year in which there were no changes to previously “reported” activities or location information.

Import Confirmation Report
Forms AP-1, AP-2, and AP-14
Within 30 calendar days of receiving notification from BIS.

Supplemental Information Report
Forms AP-1, AP-2, and AP-15
Within 15 calendar days of receiving notification from BIS.

Amended Report:
—Report information
—Organization and location information
—Complementary access letter

Form AP-1 and appropriate forms, as specified in § 783.1 of the APR, for the type of report being amended

Amended report due:
—30 calendar days after you discover an error or omission in activity information contained in your most recent report.
—30 calendar days after a change in company information or ownership of a location.
—30 calendar days after receipt of a post-complementary access letter from BIS.

Supplement No. 2 to Part 783—Manufacturing Activities

The following constitute manufacturing activities that require the submission of a report to BIS, pursuant to § 783.1(a)(2) of the APR.

(1) The manufacture of
centrifuge rotor tubes
or the assembly of
gas centrifuges. Centrifuge rotor tubes
means thin-walled cylinders as described in section 5.1.1(b) of Supplement No. 3 to this Part.
Gas centrifuges
means centrifuges as described in the Introductory Note to section 5.1 of Supplement No. 3 to this Part.

(2) The manufacture of
diffusion barriers. Diffusion barriers
means thin, porous filters as described in section 5.3.1(a) of Supplement No. 3 to this Part.

(3) The manufacture or assembly of
laser-based systems. Laser-based systems
means systems incorporating those items as described in section 5.7 of Supplement No. 3 to this Part.

(4) The manufacture or assembly of
electromagnetic isotope separators. Electromagnetic isotope separators
means those items referred to in Section 5.9.1 of Supplement No. 3 to this Part containing ion sources as described in section 5.9.1(a) of Supplement No. 3 to this Part.

(5) The manufacture or assembly of
columns
or
extraction equipment. Columns
or
extraction equipment
means those items as described in sections 5.6.1, 5.6.2, 5.6.3, 5.6.5, 5.6.6, 5.6.7, and 5.6.8 of Supplement No. 3 to this Part.

(6) The manufacture of
aerodynamic separation nozzles
or
vortex tubes. Aerodynamic separation nozzles
or
vortex tubes
means separation nozzles and vortex tubes as described, respectively, in sections 5.5.1 and 5.5.2 of Supplement No. 3 to this Part.

(7) The manufacture or assembly of
uranium plasma generation systems. Uranium plasma generation systems
means systems for the generation of uranium plasma as described in section 5.8.3 of Supplement No. 3 to this Part.

(8) The manufacture of
zirconium tubes. Zirconium tubes
means tubes as described in section 1.6 of Supplement No. 3 to this Part.

(9) The manufacture or upgrading of
heavy water or deuterium. Heavy water or deuterium
means deuterium, heavy water (deuterium oxide) and any other deuterium compound in which the ratio of deuterium to hydrogen atoms exceeds 1:5000.

(10) The manufacture of
nuclear grade graphite. Nuclear grade graphite
means graphite having a purity level better than 5 parts per million boron equivalent and with a density greater than 1.50 g/cm
3
;

(11) The manufacture of
flasks for irradiated fuel.
A
flask for irradiated fuel
means a vessel for the transportation and/or storage of irradiated fuel that provides chemical, thermal and radiological protection, and dissipates decay heat during handling, transportation and storage.

(12) The manufacture of
reactor control rods. Reactor control rods
means rods as described in section 1.4 of Supplement No. 3 to this Part.

(13) The manufacture of
critically safe tanks and vessels. Critically safe tanks and vessels
means those items as described in sections 3.2 and 3.4 of Supplement No. 3 to this Part.

(14) The manufacture of
irradiated fuel element chopping machines. Irradiated fuel element chopping machines
means equipment as described in section 3.1 of Supplement No. 3 to this Part.

(15) The construction of
hot cells. Hot cells
means a cell or interconnected cells totaling at least 6 cubic meters in volume with shielding equal to or greater than the

equivalent of 0.5 meters of concrete, with a density of 3.2 g/cm
3
or greater, outfitted with equipment for remote operations.

Supplement No. 3 to Part 783

List of Specified Equipment and Non-Nuclear Material for the Reporting of Imports

1. Reactors and equipment therefor

1.1. Complete nuclear reactors

Nuclear reactors capable of operation so as to maintain a controlled self-sustaining fission chain reaction, excluding zero energy reactors, the latter being defined as reactors with a designed maximum rate of production of plutonium not exceeding 100 grams per year.

Explanatory Note:

A “nuclear reactor” basically includes the items within or attached directly to the reactor vessel, the equipment which controls the level of power in the core, and the components which normally contain or come in direct contact with or control the primary coolant of the reactor core. It is not intended to exclude reactors which could reasonably be capable of modification to produce significantly more than 100 grams of plutonium per year. Reactors designed for sustained operation at significant power levels, regardless of their capacity for plutonium production, are not considered as “zero energy reactors.”

1.2. Reactor pressure vessels

Metal vessels, as complete units or as major shop-fabricated parts therefor, which are specially designed or prepared to contain the core of a nuclear reactor, as defined in section 1.1, and are capable of withstanding the operating pressure of the primary coolant.

Explanatory Note:

This is the list that the IAEA Board of Governors agreed at its meeting on 24 February 1993 would be used for the purpose of the voluntary reporting scheme, as subsequently amended by the Board. A top plate for a reactor pressure vessel is covered by this section 1.2 as a major shop-fabricated part of a pressure vessel. Reactor internals (e.g., support columns and plates for the core and other vessel internals, control rod guide tubes, thermal shields, baffles, core grid plates, diffuser plates, etc.) are normally supplied by the reactor supplier. In some cases, certain internal support components are included in the fabrication of the pressure vessel. These items are sufficiently critical to the safety and reliability of the operation of the reactor (and, therefore, to the guarantees and liability of the reactor supplier), so that their supply, outside the basic supply arrangement for the reactor itself, would not be common practice. Therefore, although the separate supply of these unique, specially designed and prepared, critical, large and expensive items would not necessarily be considered as falling outside the area of concern, such a mode of supply is considered unlikely.

1.3. Reactor fuel charging and discharging machines

Manipulative equipment specially designed or prepared for inserting or removing fuel in a nuclear reactor, as defined in section 1.1 of this Supplement, capable of on-load operation or employing technically sophisticated positioning or alignment features to allow complex off-load fueling operations such as those in which direct viewing of or access to the fuel is not normally available.

1.4. Reactor control rods

Rods specially designed or prepared for the control of the reaction rate in a nuclear reactor as defined in section 1.1 of this Supplement.

Explanatory Note:

This item includes, in addition to the neutron absorbing part, the support or suspension structures therefor if supplied separately.

1.5. Reactor pressure tubes

Tubes which are specially designed or prepared to contain fuel elements and the primary coolant in a reactor, as defined in section 1.1 of this Supplement, at an operating pressure in excess of 5.1 MPa (740 psi).

1.6. Zirconium tubes

Zirconium metal and alloys in the form of tubes or assemblies of tubes, and in quantities exceeding 500 kg in any period of 12 months, specially designed or prepared for use in a reactor, as defined in section 1.1 of this Supplement, and in which the relation of hafnium to zirconium is less than 1:500 parts by weight.

1.7. Primary coolant pumps

Pumps specially designed or prepared for circulating the primary coolant for nuclear reactors, as defined in section 1.1 of this Supplement.

Explanatory Note:

Specially designed or prepared pumps may include elaborate sealed or multi-sealed systems to prevent leakage of primary coolant, canned-driven pumps, and pumps with inertial mass systems. This definition encompasses pumps certified to NC-1 or equivalent standards.

2. Non-nuclear materials for reactors

2.1. Deuterium and heavy water

Deuterium, heavy water (deuterium oxide) and any other deuterium compound in which the ratio of deuterium to hydrogen atoms exceeds 1:5000 for use in a nuclear reactor, as defined in section 1.1 of this Supplement, in quantities exceeding 200 kg of deuterium atoms for any one recipient country in any period of 12 months.

2.2. Nuclear grade graphite

Graphite having a purity level better than 5 parts per million boron equivalent and with a density greater than 1.50 g/cm
3
for use in a nuclear reactor, as defined in section 1.1 of this Supplement, in quantities exceeding 3 × 10
4
kg (30 metric tons) for any one recipient country in any period of 12 months.

Note:

For the purpose of reporting, the Government will determine whether or not the exports of graphite meeting the specifications of this section 2.2 are for nuclear reactor use.

3. Plants for the reprocessing of irradiated fuel elements, and equipment specially designed or prepared therefor

Introductory Note:

Reprocessing irradiated nuclear fuel separates plutonium and uranium from intensely radioactive fission products and other transuranic elements. Different technical processes can accomplish this separation. However, over the years Purex has become the most commonly used and accepted process. Purex involves the dissolution of irradiated nuclear fuel in nitric acid, followed by separation of the uranium, plutonium, and fission products by solvent extraction using a mixture of tributyl phosphate in an organic diluent. Purex facilities have process functions similar to each other, including: Irradiated fuel element chopping, fuel dissolution, solvent extraction, and process liquor storage. There may also be equipment for thermal denitration of uranium nitrate, conversion of plutonium nitrate to oxide or metal, and treatment of fission product waste liquor to a form suitable for long term storage or disposal. However, the specific type and configuration of the equipment performing these functions may differ between Purex facilities for several reasons, including the type and quantity of irradiated nuclear fuel to be reprocessed and the intended disposition of the recovered materials, and the safety and maintenance philosophy incorporated into the design of the facility. A “plant for the reprocessing of irradiated fuel elements” includes the equipment and components which normally come in direct contact with and directly control the irradiated fuel and the major nuclear material and fission product processing streams. These processes, including the complete systems for plutonium conversion and plutonium metal production, may be identified by the measures taken to avoid criticality (e.g., by geometry), radiation exposure (e.g., by shielding), and toxicity hazards (e.g., by containment). Items of equipment that are considered to fall within the meaning of the phrase “and equipment specially designed or prepared” for the reprocessing of irradiated fuel elements include:

3.1. Irradiated fuel element chopping machines

Introductory Note:

This equipment breaches the cladding of the fuel to expose the irradiated nuclear material to dissolution. Specially designed metal cutting shears are the most commonly employed, although advanced equipment, such as lasers, may be used. Remotely operated equipment specially designed or prepared for use in a reprocessing plant, as identified in the introductory paragraph of this section, and intended to cut, chop or shear irradiated nuclear fuel assemblies, bundles or rods.

3.2. Dissolvers

Introductory Note:

Dissolvers normally receive the chopped-up spent fuel. In these critically safe vessels, the irradiated nuclear material is dissolved in nitric acid and the remaining hulls removed from the process stream. Critically safe tanks (
e.g.
, small

diameter, annular or slab tanks) specially designed or prepared for use in a reprocessing plant, as identified in the introductory paragraph of this section, intended for dissoluti

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE8-25559. Public record. Not legal advice.