President Barack Obama recently signed legislation that imposes multiple new requirements relating to the regulation of exports of civil nuclear technology.1 Under the new law, the U.S. Secretary of Energy must make a number of changes to the Department of Energy’s nuclear export control regulations and approval process contained in 10 C.F.R. Part 810 (the Part 810 Regulations). The new law has had an immediate impact on the transfer of U.S. civil nuclear technology to China and Russia. Until the DOE has resolved how it will comply with these new requirements, it is unlikely the DOE will issue any specific authorizations for transfers of U.S. civil nuclear technology to China and Russia.
Notably, under the new law the Secretary must:
- Submit Reports to Congress. Not later than 14 days before authorizing the transfer of U.S. civil nuclear technology to a “covered foreign country,” the Secretary must submit to the appropriate congressional committees a report that includes a notification of the intention of the Secretary to authorize the transfer of such technology and a statement of whether any agency required to be consulted objected to or required conditions to such authorization of transfer. In practical effect, only China and Russia are covered by this provision.2
- Provide for Director of National Intelligence (DNI) Consultation. The DOE must promptly revise the Part 810 Regulations to ensure that the DNI is consulted regarding the views of the intelligence community with respect to each request for authorization for the transfer of U.S. civil nuclear technology to a “covered foreign country” before approving or disapproving the request. The DNI must have an opportunity to offer the views of the Intelligence Community on any national security risks associated with the proposed transfer.
- Enhance Enforcement. The DOE must issue guidelines concerning the use of its civil penalty authority for violations of the Part 810 Regulations and for referrals to the Attorney General for prosecution of violations of authorizations for the transfer of U.S. civil nuclear technology.
The new law contains a number of other requirements, including the following:
- Within 90 days and every five years thereafter, the Secretary is required, in consultation with the Secretaries of State, Commerce and Defense, the DNI, and the Nuclear Regulatory Commission, to determine and advise Congress of the critical U.S. civil nuclear technologies that should be protected from diversion to any military nuclear program of a covered foreign country.
- Every 90 days, the Secretary must report to the appropriate congressional committees on the authorizations to transfer U.S. civil nuclear technology to a “covered foreign country” during the preceding 90 days.
- The Secretary must report annually to the appropriate congressional committees on the compliance of covered foreign countries under any authorizations for the transfer of U.S. civil nuclear technology as well as the consequences of any noncompliance.
- The Secretary must submit to the appropriate congressional committees a report related to applications requesting authorization to transfer U.S. civil nuclear technology to foreign countries, including the number of applications and length of review time. In addition, the DNI must notify the DOE and the appropriate congressional committee of any credible intelligence that U.S. civil nuclear technology has been diverted to any foreign military program, or to an unauthorized foreign country.
- Within 180 days, and annually thereafter, the President must report to the appropriate congressional committees on the efforts of “covered foreign countries” to prevent the transfer of certain “sensitive items.”3
We understand that DOE is in the process of preparing to comply with these requirements, including its reporting obligations to Congress. In the meantime, it is unlikely the DOE will issue any specific authorizations for transfers of U.S. civil nuclear technology to China and Russia until it has completed its review. This will likely delay currently pending specific authorization requests involving China and Russia. Because the new law also requires the DOE to expeditiously revise the Part 810 Regulations to ensure that the DNI is consulted prior to transfers of U.S. civil nuclear technology, it is unclear whether DOE will conclude it must revise its Part 810 Regulations before issuing any further specific authorizations for China and Russia, including those that are near approval, which would further delay specific authorizations for these countries.