Notice2024-11392
Instructions for Requesting a Waiver From the Secretary of Energy for the Import of Russian Low-Enriched Uranium (LEU) Into the United States
Primary source
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Published
May 24, 2024
Effective
May 24, 2024
Issuing agencies
Energy Department
Abstract
DOE is announcing a process and related instructions for entities to request a waiver to permit imports of Russian LEU following enactment of a law prohibiting such imports without a waiver.
Full Text
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<title>Federal Register, Volume 89 Issue 102 (Friday, May 24, 2024)</title>
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[Federal Register Volume 89, Number 102 (Friday, May 24, 2024)]
[Notices]
[Pages 45871-45874]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-11392]
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DEPARTMENT OF ENERGY
Instructions for Requesting a Waiver From the Secretary of Energy
for the Import of Russian Low-Enriched Uranium (LEU) Into the United
States
AGENCY: Department of Energy (DOE).
ACTION: Notice of availability.
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SUMMARY: DOE is announcing a process and related instructions for
entities to request a waiver to permit imports of Russian LEU following
enactment of a law prohibiting such imports without a waiver.
DATES: This action will become effective immediately on May 24, 2024.
FOR FURTHER INFORMATION CONTACT: Rory Stanley, Chief of Staff, Office
of Nuclear Energy, Department of Energy, Phone: (202) 586-2240, Email:
<a href="/cdn-cgi/l/email-protection#c0b5b2a1aea9b5adb7a1a9b6a5b280aeb5a3aca5a1b2eea5aea5b2a7b9eea7afb6"><span class="__cf_email__" data-cfemail="97e2e5f6f9fee2fae0f6fee1f2e5d7f9e2f4fbf2f6e5b9f2f9f2e5f0eeb9f0f8e1">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
Background
On May 13, 2024, President Biden signed the Prohibiting Russian
Uranium Imports Act, (``the Act''), which amends section 3112A of the
USEC Privatization Act, codified at 42 U.S.C. 2297h-10a (``section
3112A'').\1\ The Act adds a new subsection (d) to 3112A prohibiting the
import of Russian LEU into the United States beginning on August 11,
2024. The Act specifies that two types of Russian LEU are subject to
the import prohibition: (1) unirradiated LEU produced in the Russian
Federation or by a Russian Entity, and (2) unirradiated LEU that is
determined to have been exchanged with, swapped for, or otherwise
obtained in lieu of unirradiated LEU produced in the Russian Federation
or by a Russian Entity in a manner designed to circumvent the
restrictions under 42 U.S.C. 2297h-10a(d).
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\1\ Consolidated Security, Disaster Assistance, and Continuing
Appropriations Act, 2009, Public Law 110-329, div. C, tit. VIII,
sec. 8118 (Sept. 30, 2008) (amending USEC by adding a new sec. 3112A
(Incentives for Additional Downblending of Highly Enriched Uranium
by the Russian Federation).
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The Act authorizes the Secretary of Energy, in consultation with
the Secretary of State and the Secretary of Commerce, to waive
temporarily the
[[Page 45872]]
prohibition and permit the importation of Russian LEU if the Secretary
of Energy determines that: ``(i) no alternative viable source of [LEU]
is available to sustain the continued operation of a nuclear reactor or
a United States nuclear energy company; or (ii) importation of [LEU]
described in [42 U.S.C. 2297h-10a(d)(1)] is in the national interest.''
42 U.S.C. 2297h-10a(d)(2)(A)(i)-(ii). In granting a waiver, the
Secretary of Energy must submit a notification of such action,
including the identification of the waiver recipient, to the following
Congressional committees: the Senate Committee on Energy and Natural
Resources, the Senate Committee on Finance, the House Committee on
Energy and Commerce, and the House Committee on Ways and Means. 42
U.S.C. 2297h-10(a)(d)(2)(D). Any waiver by the Secretary of Energy
under this provision will terminate not later than January 1, 2028. 42
U.S.C. 2297h-10a(d)(2)(C).
Additionally, the Act amends section 3112A (which codified the
export limits and other provisions in the latest amendment to the
Agreement Suspending the Antidumping Investigation on Uranium from the
Russian Federation (Russian Suspension Agreement)) \2\ by eliminating
the prior provisions delineating the annual import limits through
calendar year 2040 and replacing them with annual import limitations
covering only calendar years 2024 through 2027. 42 U.S.C. 2297h-
10a(d)(2)(B)(i). The annual limits for these years are identical to the
limits of the deleted sections of the prior version of section 3112A
for those same calendar years. Consistent with the Act, the specific
limits for calendar years 2024-2027 are as follows:
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\2\ See 2020 Amendment to the Agreement Suspending the
Antidumping Investigation on Uranium From the Russian Federation, 85
FR 64112 (October 9, 2020). The export limits and certain other
provisions of the amended Russian Suspension Agreement were codified
in section 3112A of the USEC Privatization Act, which details the
limits applying to the importation of uranium from the Russian
Federation. See Consolidated Appropriations Act, 2021, Public Law
116-260, div. Z, tit. II, sec. 2007, Extension and Expansion of
Limitations on Importation of Uranium from Russian Federation (Dec.
27, 2020).
Russian LEU Importation Limits
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Importation limit
Calendar year (in kilograms)
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2024................................................. 476,536
2025................................................. 470,376
2026................................................. 464,183
2027................................................. 459,083
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The Secretary of Energy cannot grant waivers for the import of
aggregate annual amounts of Russian LEU in excess of these limits. 42
U.S.C. 2297h-10a(d)(2). The Act makes the Secretary of Commerce
responsible for administering and enforcing these import limitations in
accordance with the provisions of the Russian Suspension Agreement. 42
U.S.C. 2297h-10a(d)(2)(B)(ii).
Waiver Procedures and Requirements
As previously described, the Secretary of Energy, in consultation
with the Secretary of State and Secretary of Commerce, may grant
temporary waivers authorizing the import of specific quantities of
Russian LEU into the United States taking place from August 11, 2024
until January 1, 2028, provided that the quantities of those imports do
not exceed the limits set forth in 42 U.S.C. 2297h-10a(d)(2)(B)(i). The
Secretary of Energy may grant such waivers if the Secretary determines
that: (i) no alternative viable source of LEU is available to sustain
the continued operation of a nuclear reactor or a U.S. nuclear energy
company; or (ii) importation of Russian LEU is in the national
interest. 42 U.S.C. 2297h-10a(d)(2)(A)(i)-(ii).
The Act does not define what constitutes an alternative viable
source. DOE notes that planning for a reactor refueling involves long
lead times and a need for certainty concerning the availability of the
fuel to support the refueling. Thus, an alternative source needs to be
identified and secured many months prior to a scheduled refueling. This
timing issue is necessarily a significant factor in determining whether
an alternative source is available. In addition, DOE does not interpret
viable to mean that the terms and conditions, including price, of an
alternative source must be the same as the prohibited Russian import
but rather that the terms and conditions must be reasonable in the
context of overall market conditions.
DOE does not consider the American Assured Fuel Supply (AAFS) as an
alternative viable source for purposes of determining whether to grant
a waiver. Thus, an application to purchase material from the AAFS is
not a prerequisite to apply for a waiver under 42 U.S.C. 2297h-10a(d).
These two processes are separate and distinct.
The Act also does not define what constitutes an import that is in
the national interest. With respect to waiver requests under
consideration by DOE, Department of State, and Department of Commerce,
there is a presumption that an import will be in the national interest
if: (1) the import is necessary to maintain the viability of a U.S.
nuclear energy company that is critical to the U.S. nuclear energy fuel
chain; or (2) the import is intended to support an existing arrangement
to provide fuel for a nuclear power plant in another country and thus
minimize the likelihood of that country seeking a non-U.S. fuel
supplier. DOE believes it is important to the national interest to keep
existing elements of the domestic fuel chain infrastructure in
operation and to focus on expanding domestic fuel chain capacity. DOE
also believes it is important to the national interest to maintain
supply relationships with end-users in other countries while additional
LEU capacity is being developed. In addition, waiver applicants may
identify other situations that they believe may be in the national
interest for consideration by the Secretary of Energy.
DOE notes that the Act provides that LEU imported from a country
other than Russia is considered Russian LEU if the LEU is determined to
have been exchanged with, swapped for, or otherwise obtained in lieu of
unirradiated LEU that was produced in the Russian Federation or by a
Russian entity in a manner designed to circumvent the restrictions
under 42 U.S.C. 2297h-10(d). With respect to waiver requests under
consideration by DOE, Department of State, and Department of Commerce,
there will be a presumption against imports which result from efforts
to circumvent the ban on imports of Russian LEU. Note that the need to
consider whether an import from a country other than Russia might
involve Russian LEU applies to all imports.
A waiver granted by the Secretary of Energy only relates to the
prohibition on importation of Russian LEU established by the new
section 3112A(d). Such a waiver does not affect any other statutory or
regulatory requirement relating to the importation of Russian LEU,
including requirements for Nuclear Regulatory Commission (NRC) licenses
to import and possess Russian LEU, and for U.S. Department of Commerce
approval of contracts, as required, and shipments under the Russian
Suspension Agreement.
Examples of Scenarios Likely Warranting Waivers
The following examples describe situations where a waiver would
likely be appropriate.
Example 1--No Alternative Viable Source: Applicant/Importer is an
End User. With respect to a request from an end user for a waiver
allowing the
[[Page 45873]]
import of Russian LEU, the applicant demonstrates that: (1) it has a
signed contract (approved by the U.S. Department of Commerce) to
receive the Russian LEU; (2) such LEU will support a near-term
refueling of a domestic nuclear power plant to prevent gaps or
reductions in operation due to uncertainty about the availability of
fuel when needed; and (3) it has made a good faith effort to obtain the
LEU from an alternative source and has been unable to obtain such LEU
from an alternative source for reasonable terms and on a schedule
needed to sustain the continued operation of its domestic nuclear
reactor with no gaps or reductions in operation due to uncertainty
about the availability of fuel when needed.
Example 2--No Alternative Viable Source: Applicant/Importer is a
U.S. Nuclear Energy Company, Domestic Distribution. For a waiver
request from a U.S. nuclear energy company for an import of Russian LEU
for domestic distribution, the company demonstrates that it: (1) has a
signed contract (approved by the U.S. Department of Commerce, as
required under the Russian Suspension Agreement) to receive the Russian
LEU; (2) has a signed contract (approved by the U.S. Department of
Commerce, as required under the Russian Suspension Agreement) to supply
a domestic end user with Russian LEU; (3) shows that such Russian LEU
will support a near-term refueling of a domestic nuclear power plant to
prevent gaps or reductions in operation due to uncertainty about the
availability of fuel when needed; and (4) has made a good faith effort
to obtain the LEU from an alternative source and has been unable to
obtain LEU from an alternative source for reasonable terms and on the
schedule needed to satisfy the terms and conditions of an existing
contract to supply LEU for the operation of a domestic nuclear reactor.
Example 3--National Interest: Applicant/Importer is a U.S. Nuclear
Energy Company, Foreign Distribution. For a waiver request from a U.S.
nuclear energy company for imports for processing and re-export, the
company demonstrates that it: (1) has a signed contract to receive the
Russian LEU; and (2) has an existing signed contract to supply the
Russian LEU to an end user in another country prior to January 1, 2028.
Example 4--National Interest: Applicant/Importer is a U.S. Nuclear
Energy Company Critical to the U.S. Nuclear Energy Supply Chain. For a
waiver request from a U.S. nuclear energy company for imports for
domestic or foreign distribution, the company demonstrates that it is a
critical part of the U.S. nuclear energy supply chain, and, in the
absence of a waiver, it would not be able to stay in business. The
company must demonstrate that it has the relevant signed contract(s)
approved by the U.S. Department of Commerce, as required under the
Russian Suspension Agreement.
Instructions for Requesting a Waiver
Entities seeking a waiver by the Secretary of Energy for import of
Russian LEU during the period from August 11, 2024 until January 1,
2028, must follow the instructions below:
1. Applicants requesting a waiver should submit their request to:
Chief of Staff, Office of Nuclear Energy, Department of Energy, 1000
Independence Avenue SW, Washington, DC 20585, phone: (202) 586-2240;
Email: <a href="/cdn-cgi/l/email-protection#92e7e0f3fcfbe7ffe5f3fbe4f7e0d2fce7f1fef7f3e0bcf7fcf7e0f5ebbcf5fde4"><span class="__cf_email__" data-cfemail="84f1f6e5eaedf1e9f3e5edf2e1f6c4eaf1e7e8e1e5f6aae1eae1f6e3fdaae3ebf2">[email protected]</span></a>. It is recommended that
requests be submitted electronically via email. Please include
``Request for a Waiver to Permit Imports of Russian LEU'' in the
subject line.
2. The request should contain at a minimum the following
information:
a. Name, address, and contact information of the applicant and, if
applicable, the separate end user for whom the applicant is seeking to
import the Russian LEU;
b. For the U.S. consignee, the license number and expiration date
of the NRC or Agreement State license that authorizes the U.S.
consignee to receive and possess the Russian LEU to be imported;
c. Date of anticipated entry into the U.S. of the Russian LEU for
which a waiver is sought;
d. Amounts and assays of, and intended use of, the Russian LEU for
which a waiver is sought;
e. For domestic distribution, whether the applicant has an existing
signed contract approved by the U.S. Department of Commerce, as
required under the Russian Suspension Agreement, for purchase of such
LEU, and, if the applicant is not the end user, whether the applicant
has an existing signed contract with a domestic end user approved by
the U.S. Department of Commerce, as required under the Russian
Suspension Agreement, and if any such contract(s) exists, the duration
of such contracts, and any other relevant terms and conditions;
f. For foreign distribution, whether the applicant has an existing
signed contract to receive the Russian LEU; and an existing signed
contract to supply the Russian LEU to an end user in another country
prior to January 1, 2028.
g. If applicable, the date that fuel is needed by an end user to
avoid an interruption or gap in continued operation of a nuclear
reactor or U.S. nuclear energy company;
h. The approximate date(s) of the import(s) of Russian LEU for
which the applicant is requesting the waiver(s), with no request for
any import on or after January 1, 2028;
i. For a request for a waiver based on a demonstration of no
alternative viable source of LEU, a detailed description of reasonable
efforts made to obtain an alternative source of LEU, together with a
detailed explanation of why the applicant was not able to obtain an
alternative source of LEU available on reasonable terms and on the
schedule needed to sustain the continued operation of a nuclear reactor
or U.S. nuclear energy company. Given the long lead times associated
with planning a reactor refueling and the need for certainty concerning
the availability of fuel, the level of documentation and evidence
needed to support a demonstration of no alternative viable source of
LEU will necessarily increase for imports associated with refuelings
later in time since the applicant will have had more time to find an
alternative source of LEU;
j. For a request for a waiver in the national interest, a detailed
description of why the applicant believes the importation of the
Russian LEU is in the national interest;
k. For a request for a waiver applying to an import for foreign
distribution, the expected date on which fuel will be exported to an
end user in another country;
l. A description of the impact, including the timing of such
impact, if a waiver is not granted and the Russian LEU cannot be
imported; and
m. Any other information that the applicant believes could assist
the Secretary of Energy in making the waiver determination.
3. Requests for a waiver may be submitted at any time after the
issuance of this Notice.
4. After review, DOE may request additional information from an
applicant.
DOE will endeavor to decide whether to grant a waiver as soon as
practical following receipt of sufficient documentation but expects a
minimum processing period (including consultation with the Secretary of
State and the Secretary of Commerce) of 30 days from receipt of the
waiver request to DOE issuing a waiver determination. As noted
previously, the level of
[[Page 45874]]
documentation necessary to support a waiver will vary depending on the
date of the refueling associated with a particular import. Any waiver
granted shall terminate not later than January 1, 2028, and no requests
for a waiver or for extension of a waiver will be accepted or granted
after that date.
Confidential Business Information
Pursuant to 10 CFR 1004.11, any person submitting information that
he or she believes to be confidential and exempt by law from public
disclosure should submit via email two well-marked copies: one copy of
the document marked confidential including all the information believed
to be confidential, and one copy of the document marked non-
confidential with the information believed to be confidential deleted.
DOE will make its own determination about the confidential status of
the information and the information will be treated in accordance with
this determination. As appropriate, DOE will provide all information
submitted by the applicant to the Department of State and the
Department of Commerce for purposes of consultation.
Definitions
The terms ``applicant'' and ``importer'' mean any U.S. person who
is a uranium broker, end user of Russian LEU, or any other U.S. person
who will add value to the imported Russian LEU by processing, handling,
or otherwise modifying it in some way before it is received by the
ultimate end user.
The terms ``low-enriched uranium'' and ``LEU'' mean both low-
enriched uranium as defined in section 3102 of the USEC Privatization
Act (42 U.S.C. 2297h); and low-enriched uranium as defined in section
3112A(a) of that Act (42 U.S.C. 2297h-10a(a)).
The term ``Russian Entity'' means an entity organized under the
laws of or otherwise subject to the jurisdiction of the Government of
the Russian Federation.
The phrase ``Russian LEU'' means:
(1) Unirradiated low-enriched uranium that is produced in the
Russian Federation or by a Russian entity; and
(2) Unirradiated low-enriched uranium that is determined to have
been exchanged with, swapped for, or otherwise obtained in lieu of
unirradiated low-enriched uranium that is produced in the Russian
Federation or by a Russian entity in a manner designed to circumvent
the restrictions under 42 U.S.C. 2297h-10a(d).
The term ``U.S. nuclear energy company'' means a company that is
organized under the laws of, or otherwise subject to the jurisdiction
of, the United States; and is involved in the nuclear energy industry.
Signing Authority
This document of the Department of Energy was signed on May 20,
2024, by Dr. K. Michael Goff, Acting Assistant Secretary for Nuclear
Energy, pursuant to delegated authority from the Secretary of Energy.
That document with the original signature and date is maintained by
DOE. For administrative purposes only, and in compliance with
requirements of the Office of the Federal Register, the undersigned DOE
Federal Register Liaison Officer has been authorized to sign and submit
the document in electronic format for publication, as an official
document of the Department of Energy. This administrative process in no
way alters the legal effect of this document upon publication in the
Federal Register.
Signed in Washington, DC, on May 20, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2024-11392 Filed 5-23-24; 8:45 am]
BILLING CODE 6450-01-P
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