On 2 August 2013 the Department of Energy (DOE) published a supplemental notice of proposed rulemaking (SNOPR) in the Federal Register (78 Fed. Reg. 48629) to amend the Part 810 Regulations (10 C.F.R. Part 810), which govern the export and re-export of unclassified nuclear technology and assistance. This latest notice proposes, with some changes, a rule that DOE originally proposed almost two years ago (76 Fed. Reg. 55278, 7 September 2011). The newly proposed rule, like its earlier version, makes substantial revisions to the scope and requirements of the Part 810 Regulations – the first comprehensive updating of these regulations in decades. The purpose of the proposed rulemaking is to update the Part 810 Regulations to reflect changes in the global civil nuclear market. Our summary of the original proposed rulemaking can be found here.
Some of the most significant changes in the latest version of the proposed rulemaking include the following:
List of generally authorized destinations: In the previous 2011 proposed rulemaking, DOE eliminated its existing list of “restricted countries” that required prior specific authorization and proposed a positive list of countries that would be generally authorized for nuclear power-related activities. This positive list included three new countries that were previously restricted (Kazakhstan, Ukraine, and the United Arab Emirates), but removed 77 countries that previously were generally authorized. In the SNOPR, DOE proposed to the take the same approach to the list of generally authorized countries, with certain notable changes:
- The list, which is set forth in a new Appendix A to the SNOPR, now includes Mexico and Chile with certain limitations. These countries are only generally authorized to the extent the activities fall under specified International Atomic Energy Agency (IAEA) programs involving the support of the Laguna Verde nuclear power facility in Mexico and the replacement of highly enriched uranium in certain research reactors in Mexico and Chile. Another addition to the list of generally authorized destinations was the IAEA itself.
- DOE deleted Peru and Bangladesh from the latest version of the list because their Section 123 Agreements have expired.
- DOE acknowledged concerns from numerous commenters that many countries that are currently generally authorized would not be under the proposed rules. However, DOE did not agree that the change would create a significant burden given the minimal current civil nuclear commerce with those countries or that those burdens outweighed national security concerns.
- DOE also declined to move India, Russia, or China to the generally authorized list for “diplomatic and national security reasons, and in the case of India, for legal considerations.”
General authorization for certain deemed exports: While retaining the concept of deemed exports and deemed re-exports, the SNOPR establishes a new general authorization for certain deemed exports.
- To the extent the transfer of nuclear power-related technology or services to a foreign national in the United States requires specific authorization, such deemed exports would be generally authorized if those foreign nationals are working at an NRC licensed facility, are lawfully employed by or contracted to work for nuclear industry employers in the United States, have been granted unescorted access in accordance with Nuclear Regulatory Commission (NRC) regulations at an NRC licensed facility, and have executed a confidentiality agreement to prevent unauthorized disclosure of nuclear technology.
- The general authorization would not cover foreign nationals of countries set forth in new Appendix A of the Part 810 Regulations or the specifically authorized activities set forth in § 810.7 (renumbered from the current § 810.8), which involve enrichment, reprocessing, and other sensitive activities.
- In addition, the use of this general authorization would require compliance with certain reporting obligations, including providing DOE with the same information concerning the foreign national that an employer would provide in a deemed export specific authorization request.
- The newly proposed rulemaking also implement DOE policy to revise the definition of foreign national to exclude permanent resident aliens (greencard holders) and protected individuals under the Immigration and Naturalization Act, principally U.S. asylees and U.S. refugees. This change would be consistent with the definitions under the Commerce Department’s Export Administration Regulations and the State Department’s International Traffic in Arms Regulations.
- General authorization for operational safety: The 2011 proposed rulemaking would have eliminated the “fast track” general authorization for assistance related to operational safety and only retained the general authorization for radiological emergencies. The SNOPR would maintain the “fast track” general authorization for operational safety with some modifications. These modifications include requirements to give 45 days’ written notice to DOE before the planned start of the activity and to wait for written DOE approval before commencing. The SNOPR also expressly would permit the general authorization for operational safety to be used for transfers to foreign nationals related to nuclear power facilities in the United States.
- Definition of reactor technology: DOE was responsive to comments requesting additional clarity as to what constitutes reactor technology and consistency with other nuclear export control regulations. Section 810.2 now explicitly references 10 CFR Part 110, Appendices A through K, and O, “for an illustrative list of items considered to be especially designed or prepared for certain listed nuclear activities,” and the definition of nuclear reactor in § 810.3 is also consistent with the NRC regulations in 10 CFR Part 110.
- Transportation and storage activities: In its 2011 proposed rulemaking, DOE proposed to include storage and transportation of irradiated nuclear materials, including specially designed containers therefor, within the scope of the Part 810 Regulations. In response to comments from industry, DOE eliminated these items from the scope of the Part 810 Regulations.
- Fundamental research and publicly available information: The SNOPR includes a new definition of “fundamental research,” which excludes the results of such “fundamental research” from the scope of the Part 810 Regulations. DOE’s adoption of a fundamental research exception is now more consistent with the general approach taken by the Commerce and State Departments. DOE also replaced the current more detailed definition of “public information” with more general definitions of “publicly available information” and “publicly available technology.”
- “Use” Technology: The 2011 proposed rulemaking included a definition of “use” that mirrored the definition in the Commerce Department’s Export Administration Regulations, which requires all elements of the “use” definition to be met in order to qualify as “use” technology. The SNOPR changes this approach by using the word “or” instead of “and,” which results in technology being considered “use” technology if it meets any one of the elements in the “use” definition. This approach would result in a broader definition of “use” than what is set forth in the Export Administration Regulations.
- Authorizations by other agencies: In addition to the NRC, the SNOPR now excludes from its scope exports authorized by the Commerce and State Departments. This language would permit other agencies, such as the Commerce Department, to authorize transactions subject to DOE jurisdiction to avoid the need for authorizations or licenses from multiple agencies.
A number of issues remain notably unchanged in the newly proposed version of the rule. DOE declined to resolve how dual nationals would be treated under the Part 810 Regulations, instead opting to continue to address the subject on a case-by-case basis rather than adopting the Commerce Department’s approach of accepting a dual national’s most recent country of citizenship or permanent residence. Likewise, DOE offered no further clarification or criteria for determining when foreign nuclear technology modified in the United States is “Americanized” and therefore subject to the Part 810 Regulations. The SNOPR also did not grant commenters’ requests to add a de minimis threshold for assessing U.S. content in foreign technology or items, a general authorization for marketing and sales information, or an automatic mechanism for including countries with new 123 Agreements on the list of generally authorized countries.
Comments to the SNOPR are due by 31 October 2013.