Earlier this week, the Department of Energy issued a long-awaited revision to 10 C.F.R. Part 810, its rules governing the export of unclassified nuclear technology and assistance. Part 810 establishes the process for applying for DOE specific authorizations, sets forth reporting requirements, and distinguishes destinations requiring general and specific authorization. As the first comprehensive update of these regulations since 1986, the rule purports to “reflect a need to make regulations consistent with current global civil nuclear trade practices and nonproliferation norms.”
The rulemaking started in 2011, when DOE issued a notice of proposed rulemaking. After receiving numerous stakeholder comments, DOE issued a supplemental notice of proposed rulemaking (SNOPR) in 2013, allowing for additional stakeholder comments. The final rule contains minimal changes from the SNOPR.
One major change from the existing rule is the manner in which it distinguishes between destinations requiring specific and general authorization. The existing rule identifies destinations requiring specific authorization, while all other destinations are generally-authorized. However, the new rule takes the opposite approach – it identifies generally-authorized destinations, while all others require specific authorization. The final rule changes the status of approximately 75 countries from generally- to specifically-authorized. For example, Bangladesh, Peru, Philippines, and Thailand were removed as generally-authorized destinations. On the other hand, Croatia, Kazakhstan, Ukraine (with additional requirements), UAE, and Vietnam were added as generally-authorized countries.
To manage this transition, DOE established a temporary safe harbor provision. For generally-authorized activities for which the contracts, purchase orders, or licensing arrangements were already in effect before March 25, 2015, but that will require specific authorization under the final rule, a person must make a specific authorization request by August 24, 2015. So long as the specific authorization application is submitted before August 24, the activities could continue until DOE acts on the request.
One beneficial change concerns the “deemed export” rule. DOE will now generally authorize nuclear technology transfers to citizens or nationals of specific authorization destinations who are lawfully employed by or contracted to work for nuclear industry employers in the U.S., subject to such individuals meeting NRC unescorted access requirements and executing a confidentiality agreement to prevent unauthorized disclosure of nuclear technology to which those individuals are afforded access. But, this practice will be subject to reporting requirements. And, the exception does not continue if the foreign national continues to work for a U.S. company, but their NRC clearance has expired.
Regarding specific technologies covered by the rule, DOE did not adopt all of the nuclear industry’s proposals to limit the scope of the technology covered by Part 810. For example, DOE declined to exempt widely-available light-water reactor technology from the rule. However, DOE specifically excluded steam turbine generator technology, since those components are licensed by the Department of Commerce under the Export Administration Regulations.
Regulatory guidance on Part 810 is available on DOE’s website. The rule will become effective on March 25, 2015.