The Department of Energy (DOE) recently published its amended Part 810 Frequently-Asked-Questions (FAQs) on compliance with the amended Part 810 Regulations on nuclear export controls (10 C.F.R. Part 810). The 2015 amendments to the Part 810 regulations were the first comprehensive updating of DOE nuclear export control policy since 1986. For more information on the Part 810 refresh, please see our prior Client Alerts on the issuance of the amended regulations, as well as the amended guidance to the regulations. The amended Part 810 FAQ is useful to those interested in providing nuclear technology or assistance abroad, as well as to those who work with foreign nationals in the United States that require access to nuclear technology.
In amending the Part 810 FAQ, DOE primarily added to the content of the FAQs. The amended FAQ addresses 60 questions, while the prior version addressed less than 20—but the prior questions remain largely unaltered. Of the many new additions to the Part 810 FAQ, some of the most notable new questions concern the following:
- Back-end processes. Questions 4 and 7 explain that certain back-end processes, such as examination, storage, transportation, and disposal of spent nuclear fuel, are not covered by Part 810.
- “Publicly available information.” Questions 8 through 11 concern what is “public information” exempt from Part 810. The amended FAQ posits that if a non-disclosure agreement is required for the sharing of technical information, this is indicia that the information could fall under the scope of Part 810, but not determinative. The amended FAQ reaffirms the amended guidance in stating that financial information related to a nuclear technology, separated from technical information, does not fall under the scope of Part 810.
- General authorization for individuals with “unescorted access.” Question 17 clarifies the § 810.6(b) general authorization applicable to contractors granted unescorted access to NRC-licensed power plants. It states that the individuals must have a “direct contractual relationship” with the owner or operator of the plant, or be employed with companies that have such a relationship, in order for the general authorization to apply.
- Radiological emergency and operational safety.
- Questions 18 and 57 explain that companies acting to prevent or correct a radiological emergency, or offering operational safety information, to generally authorized countries need not rely on the § 810.6(c) general authorization (which requires prior notice or approval), and can instead use the general authorization available under § 810.6(a), which requires a 30-day post transfer notification.
- Question 23 explains that although DOE is supposed to review and approve efforts to share operational safety information pursuant to the § 810.6(c)(2), (3) for countries not listed in Appendix A within 45 days, if DOE misses the deadline the activities still cannot go forward until DOE responds.
- Questions 22 and 59 discuss what counts as “operational safety” information for purposes of the § 810.6(c)(2) general authorization. DOE notes that consulting services on “best operating practices” are not covered by the general authorization, as the information shared would likely extend beyond operational safety. On the other hand, Probabilistic Risk Assessment (PRA) services or instruction are considered eligible for the “operational safety” general authorization.
- Related-agency activities. Questions 24 through 27 offer guidance on related agency activities. They state that “[a]ctivities approved by the NRC, such as NRC-sponsored visits by foreign delegations” fall outside of Part 810, but warn that Department of State exchange programs are typically not generally authorized. The amended FAQ also clarifies that IAEA inspections and delegations sponsored by the Department of State or DOE fall under § 810.6(e) general authorizations.
- Evaluating whether an individual is a “foreign national.” Question 30 expands upon the discussion of who is a “foreign national” for purposes of Part 810. Specifically, the question clarifies that permanent residency is a part of the DOE’s case-by-case evaluation of foreign persons with multiple nationalities. For example, a citizen of Iran who is a permanent resident of France would be evaluated on a case-by-case basis for all foreign allegiances, including all countries of citizenship and permanent residence. Companies should seek guidance from DOE in these scenarios.
Question 31 explains that a citizenship that is renounced generally is not included in the DOE’s analysis of foreign country citizenship. For example, a citizen of Canada and India who then renounced her Indian citizenship generally would be evaluated by DOE as a citizen of Canada only.
- Ukraine-specific FAQs. Question 55 offers specific guidance when working with Ukraine and Ukrainian nationals. Specifically, the amended FAQ makes clear that transfers to Ukrainian foreign nationals located in the United States do not require pre-notification under § 810.14(a), but that transfers to entities organized in Ukraine, such as Ukrainian-chartered corporations, when located in the United States would require pre-notification.
- “Steam turbine generators” versus “steam generators.” Question 56 offers specific guidance differentiating the Part 810 coverage of “steam turbine generators” versus “steam generators.” The amended FAQ posits that steam turbine generators in boiling water reactors, although using coolant from the primary loop to create power, are part of the balance of plant and fall outside the scope of Part 810. The amended FAQ contrasts this with steam generators in pressurized water reactors, which are fundamentally part of the nuclear island and therefore covered by Part 810.
The revised Part 810 FAQ, despite addressing a number of questions, still leaves open certain issues that companies seeking to export nuclear technologies may need to grapple with. Examples are discussed in ourprior Client Alert on the Part 810 amended guidance, and include the “Americanization” of foreign technologies imported into the United States, practical issues with using the general authorization for foreign nationals having unescorted access at NRC facilities, and the interaction of Part 810 with other agency export control reviews.